Law Times

Page 12 March 26, 2018 • Law TiMes www.lawtimesnews.com FOCUS While the appellate court fo- cused on the interplay between a federal statute and past juris- prudence in B.C. and Alberta, it also stated that the doctrine is "strongly implanted" in the Ca- nadian law. According to Littlejohn, the test in whether common inter- est privilege applies is not fun- damentally different than when litigation privilege is asserted. "Whether the already- privileged document is being shared due to a common inter- est in pending litigation or due to a common interest in a com- mercial transaction, the court is undertaking the same analysis: Has the document been shared in a manner that is inconsistent with the confidentiality that gave rise to the privilege in the first place?" she says. Mark Tonkovich, a partner in the tax practice group at Bak- er & McKenzie LLP in Toronto, agrees that the Federal Court of Appeal ruling restores a level of certainty in this area. "In the Canadian tax prac- tice, it is certainly not unusual when you are dealing with com- plex transactions and there is a common ground that there is sharing outside of the litigation context. There is a need to make sure everyone is on the same page," says Tonkovich, who act- ed for the Canadian Bar Asso- ciation, which was an intervener in the appeal (although he is not speaking for the legal organiza- tion). The decision, he notes, also comes at a time when the Can- ada Revenue Agency is making more requests of companies in- volved in transactions. "In the last five or 10 years, the type of information the CRA is seeking has expanded. This ruling is a nice addition to the jurisprudence," says Tonkovich. Despite the findings of the ap- pellate court, Littlejohn stresses that lawyers should still be cau- tious when sharing privileged documents, even if there is a common interest. "Parties should think about finding ways to share such doc- uments on a basis that preserves confidentiality to the greatest extent possible; for example, by limiting disclosure to those people who need access to the privileged documents in order for the transaction to proceed or by restricting the basis on which such documents are made avail- able," she says. LT former counsel to the commis- sioner. What is not yet clear is how the federal agency will apply the ruling on a procedural basis in terms of disclosure of docu- ments, observes Andrew Little, a partner at Bennett Jones LLP in Toronto and former general counsel at the Competition Bu- reau. "The question is whether you will get more documents earlier in the process and more than what the commissioner will rely on or will there still be fights about what is disclosed?" says Little. As a result of the Federal Court of Appeal ruling, howev- er, he adds, "If privilege attaches [to a document], they are going to have to be able to justify it." At the same time, Little says, this is an opportunity for im- provements to the pre-hearing process, including earlier time- lines for the production of docu- ments. "Their mandate, which they take very seriously, is to do things expeditious and fairly, without compromising fair- ness," says Little. Both Little and Iatrou note that this will require a change in the "front-end" approach in a Competition Act investiga- tion. "They will now have to weed through the documents. They cannot just put them in the priv- ilege bucket," says Iatrou. "The competition bar has for a long time been calling for more focused requests [for doc- uments]. It is costly to our cli- ents to respond to broad bureau requests. Now that the costs will have to be borne by the commis- sioner, maybe the incentive has changed. Maybe it will inspire greater scrutiny of the breadth of the questions," says Iatrou. "The reality is there is time and money to be saved," he adds, pointing out that there is already a public perception that these types of cases move too slowly. LT Continued from page 10 May lead to more efficient proceedings Focus on common interest privilege Continued from page 11 Andrew Little says it's not clear how the Competition Bureau will apply a Federal Court of Appeal ruling on a procedural basis in terms of disclosure of documents. The 2018 Lexpert Zenith Awards celebrate mid-career excellence in the legal profession. You can support these achievements while networking with winners and leading members of the legal profession at an elegant cocktail reception and dinner gala in Toronto. 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