Nov 29, 2014

Slavutych v. Baker [1976] 1 S.C.R. 254,

·In Slayviutch the Supreme Court of Canada (in obiter) accepted four criteria that must be evaluated before a new class privilege can be created. This obiter has subsequently been adopted by the SCC as “the law” on privilege, and is now used for purposes other than the creation of new classes. Note: No new classes of privilege have been recognized yet. Slavutych decision is from 1976.


o Professor in Alberta was asked to give a candid opinion of a colleague in connection with the colleague’s application for tenure. The professor was advised that his opinion would be treated as confidential. Indeed, the comments were found on a form that had the word “CONFIDENTIAL” written across the top of it. He gave his opinion, and it was scathing. He used “intemperate language”.

o He referred to his pre-tenured colleague as dishonest and unethical, said the colleague favoured certain students over others, said he stabbed colleagues and administrators in the back, participated in smearing campaigns, was not a scholarly type of person. The professor (the one giving the opinion) was fired, and a subsequent board of arbitration (arbitrating the issue of his firing) referred to his “intemperate language” (during the tenure process) as one justification for firing him: you shouldn’t have said such things about a colleague.


o Should these communications be admissible?


o The Court held that they weren’t. The primary ground of the decision was equity: based on the law of equity (rather than the law of evidence), where two parties agree that a particular communication will be treated confidentially or used for a particular purpose, it won’t be open to one of the parties to thereafter use that confidential information against the other.

oIn obiter, though, the Court said that it would also have excluded the notes through the law of privilege. (this is the part of the case we care about)

·The Court in Slavutych accepted Wigmore’s four criteria for establishing new classes of privilege. These were drawn from a rule of Equity They are:

A.The communications must originate in a confidence that they will not be disclosed.

B.This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties.

C.The relationship must be one which, in the opinion of the community, ought to be sedulously fostered. i.e this is a category of relationship that the community feels is important.

D.The injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of the litigation.

·The Court in Slavutych found that privilege extended to these particular communications, but not in reliance on the Wigmore criteria. Indeed, it would have been silly for them to use the Wigmore criteria, because this was a simple master and servant relationship.