This interesting case has failed to lead to any learned legal articles in the trade papers that I have seen and I must say; I am shocked.
The background to the case is that a wife thought her husband was cheating on her (oldest story in law). She hired a private investigation firm to check him out.
They apparently did, although it appears she did not receive a full report or photos from them.
The husband then sues the private investigation firm for breach of privacy using, among other claims the relatively new “intrusion upon seclusion” tort in Ontario.
Appropriately, the private investigation firm lists the existence of work product related to its work for the estranged wife, but does not disclose same, relying upon the well know principal of “litigation privilege.”
The husband fellow then brings a motion to court to determine the strength of “litigation privilege” as a doctrine, given that he sued the private investigators, not the wife.
Justice Goodman used some balancing factors from the case law in his decision and ultimately decided that the private investigation firm had to disclose its work product prior to the examination for discovery state.
The learned judge took specific note that he did not have affidavit evidence before him from leaders in the private investigation industry as to any havoc his ruling could cause.
This decision should scare the entire private investigator industry since they are routinely hired by parties in litigation to check out the opposing party and their report is only disclosed if the hiring party says that it will be used at trial.