Do I have to hand over communications with my lawyer during a lawsuit in Ontario?
No. Communications between a client and their lawyer for the purpose of obtaining legal advice are protected by solicitor-client privilege and do not have to be disclosed in litigation. This privilege is one of the strongest protections in Canadian law and applies in Ontario courts.
A related but distinct protection is litigation privilege, which covers documents and communications created for the dominant purpose of litigation (for example, notes taken by a lawyer while preparing for trial). Litigation privilege ends when the litigation concludes, but solicitor-client privilege is permanent.
When you complete your affidavit of documents, privileged documents are listed in a separate schedule with a general description (so the other side knows they exist but cannot see them). The other side can challenge whether privilege genuinely applies, and a court can review documents in private to decide. Privilege belongs to the client, not the lawyer, so only the client can waive it. Accidentally sharing a privileged document can sometimes result in a waiver, so handle these documents carefully.
Key takeaways
- Solicitor-client privilege protects communications with your lawyer from disclosure.
- Litigation privilege covers documents created for the dominant purpose of the lawsuit.
- Privileged documents appear in a separate schedule in your affidavit of documents.
- Privilege belongs to the client; accidental disclosure can sometimes waive it.