SOLICITOR-CLIENT PRIVILEGE AND THE CONFLICT OF LAWS

  • BRANDON KAIN
Keywords: Conflict of Laws, Rule of substance, Rule of procedure

Abstract

Canadian courts have traditionally viewed solicitor-client privilege as a matter of procedure that is governed by the laws of the forum. However, in a series of decisions rendered outside the conflict of laws context, the Supreme Court of Canada has held that the privilege is also a matter of substance. This raises the possibility of a new “substancebased” choice of law rule that would require Canadian courts to apply foreign privilege laws. The author concludes that the traditional lex fori rule remains the preferable one, but that it should be justified on public policy grounds rather than the forum’s control over procedure.

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Published
2012-07-01
Section
Legal Commentary