In What Circumstances Must Joint Defence Agreements Be Produced?

Joint Defence Agreements ("JDAs") memorialize the agreement of defendants to exchange confidential and/or privileged information without waiving privilege over that information while tolling agreements toll limitation periods and preserve the rights of defendants to claim against each other in subsequent proceedings. From time to time, plaintiffs will demand production of JDAs and tolling agreements and two B.C. cases where the court came to opposite conclusions are helpful in identifying when JDAs and tolling agreements must be produced.

Joint Defence Agreements ("JDAs") memorialize the agreement of defendants to exchange confidential and/or privileged information without waiving privilege over that information while tolling agreements toll limitation periods and preserve the rights of defendants to claim against each other in subsequent proceedings. From time to time, plaintiffs will demand production of JDAs and tolling agreements and two B.C. cases where the court came to opposite conclusions are helpful in identifying when JDAs and tolling agreements must be produced.

In Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District 2014 BCSC 1560 ("Bilfinger") the Court concluded that the JDA was producible. More recently, however, the Court in Colburn and Watson's Metropolitan Home v. B.M.O. Financial Group 2019 BCSC 1456 ("Colburn") concluded that the defendants were not required to produce the JDA. This article...