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Home > Our Insights > Supreme Court of Canada Says Privilege Wins Again – Twice in Lizotte v. Aviva Insurance Company of Canada & Alberta (Information and Privacy Commissioner) v. University of Calgary
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Supreme Court of Canada Says Privilege Wins Again – Twice in Lizotte v. Aviva Insurance Company of Canada & Alberta (Information and Privacy Commissioner) v. University of Calgary

Published:

November 28, 2016

Author(s):

  • David Fraser
  • Michelle Awad, KC

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On November 25, 2016, the Supreme Court of Canada decided privilege wins again – twice. In two separate decisions – Lizotte v. Aviva Insurance Company of Canada and Alberta (Information and Privacy Commissioner) v. University of Calgary – the Court declared first litigation privilege, then solicitor-client privilege, the winner over competing statutory disclosure obligations. While the Court reconfirms solicitor‑client and litigation privilege are distinct and distinguishable from one another (and provides a useful summary of their similarities and differences at paragraph 22 of Lizotte v. Aviva Insurance Company of Canada), it also confirms both privileges are equally fundamental to the proper functioning of the Canadian legal system – and demonstrate the heights to which the Court will go to protect both in the face of statutory disclosure obligations.

The decisions may have the greatest practical impact on regulatory bodies and their ability to access information in the course of their regulatory investigations:

Litigation and regulatory investigations often go hand-in-hand. Regulators (securities regulators, medical and health regulators, legal and accounting profession regulators, and so on) often seek access to all information relevant to their investigation, including records that have been created to assist with ongoing or anticipated litigation. Following the Court’s decision in Lizotte v. Aviva Insurance Company of Canada, it’s clear that litigation privilege will prevail over a statutory disclosure obligation unless the statute empowering the regulator specifically overrides litigation privilege. General statements in statutes entitling regulators to “all documents” will no longer cut it. As a result, regulators may have to make a decision: proceed without those documents, or wait until the litigation is finished. Neither is particularly appealing.

The bar to beat a privilege claim has always been high. In recent years, the Supreme Court has raised that bar. In the case of solicitor-client privilege, it’s now been raised past a “legal privilege” to a “substantive right” (but stopped short of elevating it to quasi-constitutional status). The Court’s decision in Alberta (Information and Privacy Commissioner) v. University of Calgary that the words “privilege of the law of evidence” isn’t enough to clear the bar suggests nothing short of an express statutory requirement to disclose “solicitor-client privileged” records will permit a regulator or investigator to review those records.

Even if the regulator gets it, caution is still required. The Court was also clear that even if a regulator or investigator may review privileged documents, it must exercise this power must sparingly in a manner that infringes the substantive right as little as possible.

LITIGATION PRIVILEGE BEATS STATUTORY DISCLOSURE OBLIGATION

In Lizotte v. Aviva Insurance Company of Canada, Ms. Lizotte is a representative of Quebec’s insurance regulator. In the course of an inquiry, Ms. Lizotte asked Aviva Insurance Company of Canada to produce its complete claim file, stating the investigation could not be completed otherwise.  Aviva refused on the basis that some documents were protected by litigation privilege. The regulator filed a motion for full production, arguing the statutory obligation under Quebec’s Act Respecting the Distribution of Financial Products and Services that requires Aviva to produce “any…document” abrogated litigation privilege. The Quebec Superior Court, the Quebec Court of Appeal and ultimately the Supreme Court of Canada dismissed the regulator’s motion:

Class, not case-by-case, privilege. The Court dismissed the regulator’s argument that litigation privilege exists to facilitate the litigation process and is therefore a case-by-case privilege. The Court confirmed litigation privilege does exist to facilitate a process, but it is still a class privilege and like all class privileges (such as settlement privilege and informer privilege), once the conditions for its application are met, there is a presumption of non-disclosure.

Exceptions, not balancing. The Court also dismissed the regulator’s argument that litigation privilege must be subjected to a balancing test, and courts must assess the harm resulting from upholding the privilege against the opposing interests. The Court decided this would be akin to finding litigation privilege is a case-by-case privilege (which it already rejected) and would undermine the confidence of those the privilege protects. Appropriate, specific exceptions to litigation privilege need to be identified. The exceptions to solicitor-client privilege also apply to litigation privilege; abuse of process or similar blameworthy conduct is also an exception. Other exceptions may be identified in the future but will “always be based on narrow classes that apply in specific circumstances” and without creating such an exception, the Court stated one “based on urgency and necessity” is appealing.

Applies to anyone, not just parties. Finally, the Court rejected the argument that Aviva shouldn’t be permitted to assert litigation privilege against a party not involved in the litigation – particularly a regulator with legislative investigative powers, confidentiality obligations and limits to further disclosure. This argument was based on the regulator’s earlier position that litigation privilege exists to facilitate the adversarial process, so only those involved should be affected. The Court found the argument “unconvincing” based on the risk of disclosure by the third parties, unintended waiver and the risks to effective preparation for litigation. It confirmed litigation privilege can be asserted against “anyone, including administrative or criminal investigators”. The Court also confirmed the presumption that a legislature doesn’t intend to change fundamental common law rules, such as those relating to litigation privilege, without clear and explicit provisions (absent in this legislation).

SOLICITOR-CLIENT PRIVILEGE BEATS FREEDOM OF INFORMATION LEGISLATION

In Alberta (Information and Privacy Commissioner) v. University of Calgary, a former employee sued the University of Calgary for constructive dismissal. The University claimed solicitor-client privilege over certain records. The employee made an access to information request for the records. Alberta’s Information and Privacy Commissioner ordered the University to produce them per the Commission’s “Solicitor‑Client Privilege Adjudication Protocol” requiring the provision of a copy of the disputed records or two copies of an affidavit or unsworn evidence verifying privilege over them to substantiate the privilege claim. In keeping with civil litigation law and practice at the time, the University provided a list of documents and a sworn affidavit indicating the claim of solicitor‑client privilege. The Commissioner sought further verification and ultimately issued a Notice to Produce Records under Alberta’s Freedom of Information and Protection of Privacy Act’s (FOIPP) section 56(3) requiring a public body to produce required records to the Commissioner “[d]espite . . . any privilege of the law of evidence”. The University applied to the court for judicial review of the Commissioner’s decision to issue the Notice on the basis section 56(3)’s wording does not include solicitor-client privilege. The lower court agreed with the Commissioner’s Office. However, the Court of Appeal decided “any privilege of the law of evidence” in section 56(3) doesn’t include solicitor‑client privilege and the Supreme Court of Canada agreed:

Words aren’t enough to override privilege here. Solicitor‑client privilege is a substantive right fundamental to the Canadian legal system. Statutory language that purports to overcome or impinge on it must be restrictively interpreted and “demonstrate a clear and unambiguous legislative intent to do so”. The wording “any privilege of the law of evidence” doesn’t meet this test.

Production isn’t appropriate here in any event. Even if the wording did meet the test, this isn’t an appropriate case in which to order production: the Protocol is not law but a guide to assist adjudicators and public bodies. The University also complied with the permitted approach and there was no evidence or argument it made a false claim, and no need for the Commission to review the records to decide.


Please contact your McInnes Cooper lawyer or any member of the Privacy Law Team @ McInnes Cooper to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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    David Fraser

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  • Michelle Awad, KC

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    Jan 25, 2017

    Doing business with the public sector creates an often overlooked – but very real – risk that the confidential information a business…

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    Publication
  • Newfoundland & Labrador: A New Public Procurement Act for 2017

    Dec 5, 2016

    It’s been a long time coming, but Newfoundland and Labrador is finally getting new public procurement legislation. On November 29, 2016, Bill…

    Read More
    Publication
  • Supreme Court of Canada Warns Judgment Creditors: Implied Consent is Enough to Disclose Discharge Statement in Royal Bank of Canada v. Trang

    Nov 22, 2016

    On November 17, 2016 the Supreme Court of Canada decided a mortgagee has the mortgagor’s implied consent to disclose its discharge statement…

    Read More
    Publication
  • Supreme Court of Canada Gives a Lesson in Insurance Contract Interpretation in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.

    Sep 19, 2016

    On September 15, 2016, the Supreme Court of Canada decided certain damage to a building under construction was covered under the relevant…

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    Publication
  • Supreme Court of Canada Decides Indian Bands Assessing Leased Reserve Lands for Property Tax Purposes Can’t Have it Both Ways in Musqueam Indian Band v. Musqueam Indian Band (Board of Review)

    Sep 12, 2016

    On September 9, 2016, the Supreme Court of Canada decided in Musqueam Indian Band v. Musqueam Indian Band (Board of Review) that an Indian band…

    Read More
    Publication
  • Limitation Periods: Avoiding Hitting the Reset Button in Tuck v. Supreme Holdings

    Aug 17, 2016

    The Newfoundland and Labrador Court of Appeal recently affirmed the test for confirming a cause of action and thus resetting a limitation period…

    Read More
    Publication
  • Supreme Court of Canada Sticks With Presumptive Jurisdiction Tests for Forum Non-Conveniens in Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP

    Jul 19, 2016

    On July 15, 2016 the Supreme Court of Canada, in a long-awaited decision, resisted the invitation to re-write the traditional rules for the…

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    Publication
  • Municipal Liability for ByLaw Enforcement: A Bylaw’s Not a Bylaw in Vlanich v. Typhair

    Jul 5, 2016

    The Ontario Court of Appeal has re-ignited the discussion about when a municipality will be held liable for its shoddy bylaw enforcement…

    Read More
    Publication
  • Weigh Now or Weight Later: New Cargo Container Verified Gross Mass (VGM) Rules Effective July 1, 2016

    Jun 20, 2016

    As of July 1, 2016, packed cargo containers to which the International Convention for the Safety of Life at Sea (SOLAS), Chapter VI, Regulation…

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    Publication
  • Realtor Risk Management: 10 Practical Tips to Help Realtors Manage Litigation Risk

    Jun 20, 2016

    Real estate vendors and purchasers have high expectations of their realtors – and they don’t often hesitate to pursue legal action against…

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    Publication
  • The Parameters of Municipal Power: Supreme Court of Canada Decides Municipality Can’t Block Radiocommunication Tower Construction

    Jun 17, 2016

    In its June 16, 2016 decision in Rogers Communications Inc. v. Châteauguay (City), the Supreme Court of Canada decided a municipality’s…

    Read More
    Publication
  • Newfoundland & Labrador Crown Immunity for Mechanics’ Lien Holdbacks: 3 Key Risks for Subcontractors in Brook Construction (2007) v. Blackwood Contractors Ltd.

    May 24, 2016

    It’s now certain: in Newfoundland & Labrador, liens can’t be placed on Crown land or holdbacks with the possible exemption allowing for…

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    Publication
  • A Red Flag for Municipalities & Developers: Supreme Court of Canada Decides Not Every Positive Covenant Under a Development Agreement Runs With the Land in Heritage Capital Corp. v. Equitable Trust Co.

    May 10, 2016

    On May 6, 2016, the Supreme Court of Canada generally affirmed the common law rule that positive covenants do not run with the land. More…

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    Publication
  • From Watershed Decision to Watershed Law: Government Proposes Physician-Assisted Dying Law in Bill C-14 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)

    Apr 15, 2016

    On April 14, 2016, Canada’s federal Justice Minister proposed legislation setting out the conditions that a person wishing to undergo…

    Read More
    Publication
  • Doing Business With the Public Sector: Key Confidentiality Risks & 3 Risk Management Strategies

    Mar 24, 2016

    When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these…

    Read More
    Publication
  • Doe 464533 v. D.: Business Implications of the Civil Privacy Claim for “Public Disclosure of Private Facts”

    Jan 27, 2016

    On January 21, 2016, the Ontario Superior Court of Justice dramatically expanded the scope of legal privacy protection – and the liability…

    Read More
    Publication
  • Ontario Court Provides Guidelines to Balance Privacy Rights & “Tower Dumps” in R v. Rogers Communications

    Jan 18, 2016

    On January 14, 2016, the Ontario Superior Court decided that Canadians have a clear privacy interest in their records of their cellular…

    Read More
    Publication
  • Canada’s Anti-Spam Legislation (CASL): The Top 3 Lessons Businesses Can Learn from Year 1

    Sep 29, 2015

    The anti-spam sections of Canada’s Anti-spam Legislation (CASL) took effect on July 1, 2014 amidst hype, controversy and dire warnings. Were…

    Read More
    Publication
  • A Glimpse Into The Future of Privacy Law: Medical Marijuana Privacy Breach Class Action Lawsuit Can Go Ahead in John Doe and Suzie Jones v. Her Majesty the Queen

    Jul 29, 2015

    On July 27, 2015, the Federal Court of Canada decided a lawsuit by medical marijuana program participants against the Federal Government…

    Read More
    Publication
  • Bad Faith & Production of an Insurer’s Business Information: 4 Key Implications of the NB Court of Appeal’s Decision in Wade v. Wawanesa Ins. Co.

    Jul 21, 2015

    On July 16, 2015, the New Brunswick Court of Appeal ordered an insurer to produce a significant amount of its financial and business information…

    Read More
    Publication
  • Nova Scotia Goes Its Own Way: Future CPP Disability Benefits Deductible Under SEF 44 in Portage Le Prairie Mutual Insurance Company v. Sabean and Hallett

    Jun 8, 2015

    On June 4, 2015, the NS Court of Appeal decided the value of future CPP disability benefits is deductible under the SEF 44 family protection…

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    Publication
  • The New NS Missing Persons Act: 5 Privacy Implications for Businesses, Organizations & Public Bodies

    Jun 2, 2015

    Effective April 22, 2015 the NS Government enacted the NS Missing Persons Act, lowering the threshold for police to get an order to access…

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    Publication
  • SCC Gives Municipalities (& Other Government Authorities) 3 Reasons Not to Say A Little Prayer in Mouvement laïque québécois v. Saguenay (City)

    Apr 15, 2015

    On April 15, 2015 the Supreme Court of Canada decided the City of Saguenay’s recitation of a religious - though non-denominational – prayer…

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    Publication
  • Wait a Minute Mr. Postman … 3 Lessons Health Canada’s Privacy Breach Delivers to the Private Sector

    Mar 25, 2015

    On March 3, 2015 Canada’s Privacy Commissioner determined that Health Canada breached privacy laws by mailing letters to over 40,000 Marihuana…

    Read More
    Publication
  • No Messing Around – $1.1M First Penalty for Canada’s Anti-Spam Legislation (CASL) Violations by Compu-Finder

    Mar 6, 2015

    On March 5, 2015, the Canadian Radio and Television Commission (the CRTC, the main agency charged with administering and enforcing most of CASL)…

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    Publication
  • Final Form of New NS Limitation of Actions Act: “Sudden Death” Limitation is Out for Personal Injury Claims

    Feb 18, 2015

    The new NS Limitations of Actions Act – the legislation that determines the limitation period (time limit) in which a lawsuit must be started…

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    Publication
  • No More Criminalization of Physician-Assisted Dying: The Ripple Effects of A Watershed Decision in Carter v. Canada (Attorney General)

    Feb 9, 2015

    NOTE: On April 14, 2016, the federal government proposed legislation setting out the conditions that a person wishing to undergo…

    Read More
    Publication
  • Supreme Court of Canada Says the Charter Protects the Right to Strike in Saskatchewan Federation of Labour v. Saskatchewan

    Feb 2, 2015

    On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…

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    Publication
  • Privacy in Basic Cell Phones: SCC Continues Trend of Privacy Protection in R. v. Fearon

    Dec 11, 2014

    On December 11, 2014 the Supreme Court of Canada continued its trend to recognize privacy rights – and develop the law to protect them –…

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    Publication
  • Canada’s Anti-Spam Legislation (CASL) Software Installation Sections: 10 FAQs

    Dec 11, 2014

    On January 15, 2015, the software provisions of Canada’s Anti-Spam Legislation (CASL) will take effect.  CASL’s anti-spam sections, touted…

    Read More
    Publication
  • Complying with Canada’s Anti-Spam Legislation (CASL): A blueprint for the construction industry

    Dec 1, 2014

    The construction industry - project owners, contractors, subcontractors and trades - might be relaxing, ignoring the hype around Canada’s…

    Read More
    Publication
  • Thou Shalt Not Lie: SCC Recognizes New Duty of Honesty in Contract Law in Bhasin v. Hrynew

    Nov 14, 2014

    On November 13, 2014, the Supreme Court of Canada (SCC) effected a significant development in Canadian contract law by recognizing the…

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    Publication
  • NS Proposes New Limitation of Actions Act: The 3 Top Benefits & The 10 Key Changes

    Nov 3, 2014

    Note: On November 20, 2014 the NS Government passed the final form of Bill 64, Limitations of Actions Act into law. The final form of the Act…

    Read More
    Publication
  • Complying With Canada’s Anti-Spam Legislation (CASL): Protecting Directors & Officers from Personal Liability

    Oct 14, 2014

    CASL’s anti-spam sections came into force on July 1, 2014. Every organization that CASL affects should now be complying with it – and their…

    Read More
    Publication
  • Changes to NB Rules of Court Effective October 1, 2014 Benefit Successful Party

    Sep 9, 2014

    Effective October 1, 2014, the New Brunswick Rules of Court will change – some Rules for the first time since they came into effect in 1982.…

    Read More
    Publication
  • Complying With Canada’s Anti-Spam Law (CASL) – Foreign Organizations Doing Business in Canada Need to Pay Attention

    Aug 1, 2014

    Most Canadians have heard about Canada’s Anti-Spam Legislation (CASL): we’ve been bombarded with “CASL Compliant” emails asking us to…

    Read More
    Publication
  • SCC Protects Internet Users’ Expectation of Privacy In Online Activities in R. v. Spencer

    Jun 16, 2014

    On June 13, 2014 the Supreme Court of Canada decided that Canadians have a reasonable expectation of privacy in their online activities, and…

    Read More
    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – The Last Minute Guide to Preparing For CASL

    Jun 12, 2014

    The countdown to CASL is almost over: there are only 13 business days until the anti-spam provisions of CASL – and most of the penalties for…

    Read More
    Publication
  • Court Orders Feds to Reconsider Canadian Forces Housing Compensation Policy in Brauer v. The Queen

    May 26, 2014

    On May 23, 2014 the Federal Court of Canada decided the Federal Treasury Board Secretariat’s interpretation of the policy for compensating…

    Read More
    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) –10 Steps to Prepare for CASL

    May 8, 2014

    On July 1, 2014 – less than two months from now - the anti-spam sections of Canada’s Anti-Spam Legislation (CASL) take effect. Individuals…

    Read More
    Publication
  • What’s In The Pipe? Municipal Liability for Flood & Sewage Back-Up Claims

    May 2, 2014

    April showers bring … flood and sewage back-up claims. Flooding and sewage back-up can result in significant damage for municipal ratepayers,…

    Read More
    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – Does CASL Make You A “Spammer”?

    Apr 15, 2014

    The countdown to CASL is on: on July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (“CASL”) take effect. Individuals…

    Read More
    Publication
  • Cloud Computing: A Privacy FAQ

    Mar 19, 2014

    As organizations turn to cloud computing services, ensuring compliance with legislation and reducing privacy risks is key. In Canada, there is…

    Read More
    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL): 10 Reasons Why You Should Care About The Upcoming CASL Right Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) will take effect. CASL is: Broad. It applies…

    Read More
    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – What You Need to Know Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) take effect. CASL will apply to just about every…

    Read More
    Publication
  • Privacy in Computer Contents: Supreme Court of Canada Picks Up Where It Left Off in R. v. Vu

    Nov 8, 2013

    On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…

    Read More
    Publication
  • A Practical Analysis of “Material Fact”

    May 21, 2013

    In its April 2013 decision in Re Stan, the Alberta Securities Commission provides issuers with a practical approach to the assessment of both a…

    Read More
    Publication
  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

    Read More
    Publication
  • Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer in R. v. Cole

    Nov 28, 2012

    On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…

    Read More
    Publication
  • Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible

    Oct 22, 2012

    Mr. Cole was a high school teacher with an employer owned and issued laptop computer.  He also used it for incidental personal purposes, which…

    Read More
    Publication
  • Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer

    May 6, 2011

    In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…

    Read More
    Publication
  • Legal Update: Cloud Computing and Privacy FAQ

    Apr 7, 2011

    Note: Click here to read an updated version of this Legal Update in Cloud Computing: A Privacy FAQ as seen in as seen in CCCA Magazine, Spring…

    Read More
    Publication
  • Contamination Claims: Long Tails or Just Dogs? Practical and Legal Issues of Litigation Contamination Slow-Leak Cases

    Mar 6, 2009

    “Contamination Claims: Long Tails or Just Dogs? Practical and Legal Issues of Litigating Contaminant Slow-Leak Cases”, Cdn Journal of…

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    Publication

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