I Should Not Be Seeing This

Sometimes regulators come across information that they were not intending to see. Responding appropriately can be important.

In a civil case, two business partners were in a dispute about a transaction. When the relationship soured, one party secretly obtained access to the backed up emails of the other party through their shared IT provider. The emails included legal advice. When this came out during litigation, the Court stayed (halted) the legal proceedings because of the party’s access to privileged information belonging to the other party. The Court said that the onus was on the party with unauthorized access to privileged information to demonstrate that it would gain no advantage from the access. Given how long the party had access to it and their inability to demonstrate that the legal advice had not been reviewed or used, the Court halted the proceedings. See: Continental Bank of Canada v. Continental Currency Exchange Canada Inc., 2022 ONSC 647 (CanLII), https://canlii.ca/t/jm284.

If a regulator gains access to a practitioner’s legal advice, even inadvertently, perhaps through an investigation, the regulator should stop reviewing the information immediately and obtain legal advice. Taking quick action to ensure that representatives of the regulator do not review or use the privileged information, in a manner that can be documented, can prevent unforeseen consequences.

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