Federal Court On Common Interest Privilege: Information Shared In A Transaction No Longer Protected

During commercial transactions, it is common for parties to a transaction to share documents and information that each party's respective counsel had prepared in relation to the transaction. These documents or information typically concern matters that, upon sharing with the other parties, would assist in the completion of the transaction, such as the steps, procedure or structure of the transaction.

Until recently, such documents and information would have been considered privileged communications and protected from disclosure to third parties under the doctrine of "advisory" common interest privilege (Advisory CIP) which applies, as succinctly put by the Federal Court, where:

"different clients [...] represented by different lawyers [...] share privileged information [i.e., solicitor-client privileged information] on a matter of common legal interest not related to actual or anticipated litigation."

Iggillis Holdings Inc v Canada (National Revenue), 2016 FC 1352 at 9.

Accordingly, if a person, such as a regulatory body, that was not a party to the transaction requested disclosure of such communication and would otherwise be entitled to this...