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EVIDENCE
pitfalls of transborder evidence
During the course of the Hollinger Inc. Inspection, members of senior management resisted examination under oath on the basis that their rights against self-incrimination could be jeopardized. Katherine Cornett discusses the decision in Catalyst Fund General Partner I Inc. v. Hollinger Inc., which offers little comfort to those compelled to give evidence in Canada while facing potential criminal charges in the United States. Although Justice Campbell and the Inspector offered a plethora of protection adequate for Canadian purposes, the Court essentially concluded that the Charter cannot protect those whose evidence might be used against them outside of Canada’s borders.
PRIVILEGE
Supreme Court considers litigation privilege
For the first time, the Supreme Court of Canada has recently considered the nature, scope and duration of litigation privilege, as compared to solicitor-client privilege. The Court confirmed that litigation privilege is neither absolute in scope nor permanent in duration. Tracey Cohen discusses the analysis in this case and its implications for future actions. The author explains how the Court determined that materials that are subject to litigation privilege may be ordered to be disclosed if there is a prima facie basis to conclude that the other party has been engaged in actionable misconduct in relation to these proceedings. The author also discusses the ways in which another recent decision of the Ontario Court of Appeal raises interesting and troubling questions in light of the Supreme Court decision on litigation privilege.
FOREIGN INVESTOR LITIGATION
new developments in investor-state litigation
Foreign investors in Canada and Canadians investing abroad may soon have a new and powerful procedural weapon for their disputes with governments. This is the Convention on the Settlement of Investment Disputes between States and Nationals of other States. Dierk Ullrich discusses the nature of this Convention and the growing momentum in Canadian jurisdictions to achieve its ratification. With the exception of Alberta and Quebec, all Canadian jurisdictions have expressed support for the adoption of implementing legislation. All provinces, territories and the federal government must implement the Convention before it is effective in Canada. The author also explains why it is to be hoped that the recent impetus in implementation will carry Canada toward membership in the Convention and a new process for international dispute resolution for Canadians and foreign investors involved in disputes with other states.
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Brian Morgan
Editor-in-Chief
Osler, Hoskin &
Harcourt LLP
Christopher D. Bredt
Borden Ladner
Gervais LLP
D. Geoffrey Cowper
Fasken Martineau DuMoulin LLP
Jessica Kimmel
Goodmans LLP
Steve Leitl
Macleod Dixon LLP
Gavin MacKenzie
Heenan Blaikie LLP
David S. Morritt
Osler, Hoskin & Harcourt LLP
David F. O’Connor
Roy Elliott Kim O'Connor LLP
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