December 5, 2011 - Nova Scotia Barristers' Society

December 5, 2011: : PR: DECISIONS & DISPOSITIONS : :Formal Hearings – Preliminary ApplicationRaymond B. Jacquard – Disclosure Ordered – November 22, 2011The lawyer applied to the Hearing Panel for an Order requiring the Society to disclose the letter that accompanied theSociety's expert witness report. He argued entitlement to disclosure under the principles outlined in R v Stinchombe,[1991] 3 SCR 326, as a result of a duty of fairness and in order to make full answer and defence. The Society resisteddisclosure on the basis that the contents of the correspondence were protected by litigation privilege, Stinchombedisclosure does not apply to professional regulatory proceedings in Nova Scotia and, even if it does, the requireddisclosure had already been provided.On November 22, 2011, the Panel ordered the disclosure of the letter, finding that the disclosure requirements in aprofessional regulatory manner are very similar to those set out in Stinchombe and the Society must disclosure allinformation that is not clearly irrelevant to the matter. The argument that the letter was protected by work-product privilegewas rejected on the basis that the author was to be called as an expert witness and, as such, the member should be giventhe opportunity to review any and all correspondence with respect to the expert and his testimony.The Panel noted the finding of the court in Flynn v MacFarlane, 2002 NSSC 272 that information relied upon by an expertin the preparation of a report, including correspondence between the expert and the party's lawyer, is not protected bysolicitor/client privilege and must be disclosed. The Panel also relied upon an excerpt from the text The Regulation ofProfessions in Canada, asserting that the policy reasons set out in Stinchombe for full disclosure of all inculpatory andexculpatory material should equally apply to professional disciplinary hearings. The correspondence had been reviewedby the Panel and its release would not, in any way, jeopardize the litigation privilege claimed by the Society.Nova Scotia Barristers' Society v Jacquard, 2011 NSBS 3.InForum is an electronic newsletter published approximately twice a month. To receive a free subscription, please contact the Society at info@nsbs.org.24 < Back to “What’s New”