The case involved a protracted legal dispute, spanning over a decade. The primary issue at hand was an Application before the Case Management Judge seeking judicial declarations and Orders to recognize certain documents as privileged. The documents in question were supporting documents related to traditional land use studies (“TLUS”) that the Applicant had conducted over the past twenty years. While the Applicant had not claimed privilege over the final reports of these studies, it asserted that the TLUS supporting documents were privileged.

The Respondents in this matter challenged the Applicant's claim. They argued that the TLUS supporting documents were not privileged. Moreover, they contended that even if these documents were initially privileged, the Applicant had effectively waived such privilege by already disclosing some of these supporting documents to them. Despite their opposition to the privilege claim, the Respondents expressed a willingness to consider the imposition of a confidentiality and/or sealing Order to safeguard any sensitive information contained within the documents in question.

The Court began by emphasizing the overarching purpose and intention of the Rules, as set out in Rule 1.2. Further, the Court considered the specifics of Rule 5.2 regarding the relevance and materiality of evidence, and Rule 5.33 on the confidentiality and use of information, to evaluate the significance of the TLUS supporting documents to the case's issues. The Court reviewed Rules 13.18, 5.17 and 5.6 to outline who could be questioned and the appropriate form and content of an Affidavit. The absence of a formal definition of “information” within the Rules prompted the Court to adopt a broad interpretation, recognizing information as encompassing knowledge or news, as per the Canadian Oxford Dictionary.

The Applicant argued that the consultations they engaged in were constitutionally mandated, concerning development on traditional territory. The Applicant did not assert class privilege over the documents but claimed a case-by-case privilege, citing the inclusion of highly sensitive personal information collected under confidentiality assurances. The Applicant further maintained that during the interviews for the TLUS, assurances were given to participants about the confidentiality of their information and identity, which, in their view, should be upheld.

The Court applied the Wigmore criteria to determine whether a case-by-case privilege existed concerning certain documents. Noting a prima facie presumption that the records were not privileged, the Court emphasized that the application of the Wigmore criteria is case-specific and requires a principled analysis rather than a formulaic one. Following its analysis, the Court concluded that the communications comprising the TLUS supporting documents originated in confidence, except for parts of the information incorporated into TLUS final reports explicitly recognized for Court use.

Turning to the issue of waiver, the Court found that the Applicant did not take reasonable steps to prevent the disclosure of the TLUS supporting documents. Acknowledging the disclosure was inadvertent, the Court held that it was also intentional. The Court found “the bell ha[d] been rung” on the TLUS supporting documents that were provided and it would be unfair and artificial to expect the defendants to “disabuse their minds” of the information.

In conclusion, the Court found that, upon a case-by-case analysis, the TLUS supporting documents were privileged, with the exception of information already incorporated into TLUS final reports. This excluded information comprising names of participants, names of special medicines, and the pinpoint locations for activities like hunting, fishing, berry picking, medicine harvesting, and identifying family and sacred places. However, TLUS supporting documents pertaining to members who will testify as witnesses were to be disclosed.

Further, the Court found that the Applicant had relinquished privilege over TLUS supporting documents that had been previously shared with the Respondents. The Court indicated that the situation could be adequately safeguarded by implementing a confidentiality and/or sealing Order.