Application for Declaration of Waiver of Privilege (Precedent): Difference between revisions
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==Notice== | ==Notice== | ||
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==Affidavit== | ==Affidavit== |
Revision as of 23:16, 16 January 2025
All forms, templates and precedents, including anything found on this page, can be used without the need for any attribution. |
Notice
C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]
IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)
BETWEEN:
– and –
NOTICE OF APPLICATION
(ex parte and in camera)
(Application for Declaration of Waiver of Solicitor-Client Privilege)
TAKE NOTICE that an in camera Application is being made for an Order of Declaration affirming the waiver of any privilege associated with the ... .
WHEREAS ...
THE APPLICANT RELIES ON THE FOLLOWING GROUNDS
- Courts have a duty to not permit intrusion upon privilege where it might be present: see R v AB, 2014 NLCA 8 (CanLII), 346 Nfld & PEIR 218, per Harrington JA at paras 21 to 23
- All counsel have a common law duty of loyalty to their clients, which includes a duty of confidentiality: Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 SCR 821. Likewise, members of the [law society] are bound by [rule re confidentiality] requiring that they hold in confidence all information concerning the business and affairs of a client.
- Investigators are not permitted to interview lawyers or former lawyers where there is a reasonable possibility that the interview may intrude on solicitor-client privilege: e.g. R v Rudolph, 2017 NSSC 333 (CanLII)
- It is the court’s responsibility—not any of the parties—to determine whether privilege exists once a claim of privilege has been made or where there is a legal presumption that privilege exists: see R v Herritt, 2019 NSCA 92 (CanLII), 384 CCC (3d) 25, per Beveridge JA, at para 122.
- Any information received by a lawyer in his professional capacity is usually presumed confidential: Ott v Fleishman, 1983 CanLII 489 (BC SC), 5 WWR 721, 46 BCLR 321 There is a presumption of confidentiality and privilege protecting all communications and information shared between the lawyer and client: Foster Wheeler v Societe intermunicipale de gestion et d'elmination des dechets, 2004 SCC 18 (CanLII), [2004] 1 SCR 456.
- The police obtained written or oral waivers from a total of 81 clients of the firm. An additional seven (7) clients were asked but declined to waive privilege.
- Superior courts have jurisdiction arising from their obligation to protect privilege and their inherent jurisdiction to grant orders concerning the interview of lawyers pursuant to criminal investigations: R v AM, 2021 ONSC 2725.
- Any additional grounds as counsel may advise and this Honourable Court may permit.
IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE:
- Affidavit of [officer]
- Accompanying Exhibits:
- waiver of [client name]
- ...
THE APPLICANT SEEKS THE FOLLOWING RELIEF:
- An Order...
FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT:
In accordance with the appropriate Rules of Court,
[party name]
[party title]
[address]
[address]
[address]
Tel: (xxx) xxx-xxxx
Fax: (xxx) xxx-xxxx
Email: xxx@xxxxxx.xxx
DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.
_______________________________ [Counsel's name] [Counsels title]
[Internal File Coding]
Affidavit
C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]
IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)
BETWEEN:
– and –
AFFIDAVIT OF [AFFIANT NAME]
I, [Affiant name], of [City], in the [Community] and Province of [Province], make oath and say as follows that:
- I am the [relationship to case] herein and have personal knowledge of the matters and facts herein deposed to, except where stated to be based on information and belief, in which case I do verily believe the same to be true.
- ...
[Internal File Coding]
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[DESCRIPTION]
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[DESCRIPTION]
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Order
Order |
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Style of cause
C A N A D A File# ________________ IN THE [LEVEL OF COURT] OF [PROVINCE] BETWEEN: – and –
ORDER BEFORE THE HONOURABLE JUSTICE: BEFORE THE HONOURABLE JUSTICE [name] WHEREAS on [date], the Crown made Application to determine whether any potential solicitor-client privilege has been extinguished by way of waiver from potential clients of the firm [name] (the "firm"). AND WHEREAS investigators with the RCMP commercial crime section seek to interview persons previously employed by or a member of the firm, including former and current members of the provincial bar, concerning their dealings with certain complainant clients of the firm; AND WHEREAS any persons previously employed by or a member of the firm have no obligation to speak to members of the RCMP notwithstanding any other part of this Order; AND UPON READING the materials filed by the Applicant Crown Counsel consisting of:
AND UPON HEARING the submissions of [name], the Applicant Crown Counsel; AND ON BEING SATISFIED that the client waivers are in order; IT IS ORDERED that any solicitor-client privilege connected with the following potential clients have been duly waived for the following persons: IT IS FURTHER ORDERED that any solicitor-client privilege held by clients other than those listed herein remain unaffected. DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___. _________________________________________________ Justice of the [Level of Court] of [Province] [Internal File Coding] |
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