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rules with regard to mediation and have stated that for example, the mediator can't be compelled to testify and also specify that the conversations that occurred during mediation are confidential. "It's sometimes taken for granted that every mediation will He says some jurisdictions in Canada have adopted specific action more appropriately. "What the courts have determined more and more is this end in the parties signing a document but the truth of the mat- ter is sometimes at 4:30 in the aſternoon the mediator will get up and say, 'OK, it looks like we have a deal, I'll let you two paper the deal' and then they leave. But when they aren't able to paper the deal, then what happens? In any other situation you could have litigation as to whether there was an agreement or not. Because it happened in mediation is there an exception to that?" Joint-defence or common-interest privilege This is more an exception to waiver of privilege than it is a specific kind of privilege. If, for example, car manufacturers are subject to a class action as to how they fix prices, they may share information with each other in order to defend the To read Barrick Gold Corp. v. Goldcorp. Inc., go to canlii.ca/t/ fmhqx; Akzo Nobel Chemicals Ltd. v. European Commission is at tinyurl.com/2543yrm; and Dublin v. Montessori Jewish Day School of Toronto is at canlii.ca/t/1qxmz. sharing with people that have a common interest with you is not considered a waiver of the privilege towards third parties. It will be a waiver among the limited set of people the infor- mation is shared with," says Sheehan. Exceptions Of course there are exceptions to solicitor-client privilege — in particular the crime/fraud exception. "If somebody comes to you and is trying to seek your advice to help commit a crime or a fraud that has never been considered privileged, Dodek, "it's an exclusion rather than an exception because it doesn't fit in a privilege box." In-house counsel worry about it because of Enron, but a broad decision in Ontario from Justice Paul Perell in 2008 ex- tended that to crime/fraud/tort/breach of contract. In Dublin v. Montessori Jewish Day School of Toronto, Perell concluded that solicitor-client communications that may have been in furtherance of tortious conduct are not protected by solici- tor-client privilege. According to the judge, there is a line of authorities that can be used to expand the definition of un- lawful conduct to include torts, if the client knew or should have known that the communications in question were with respect to the conduct of a tort. " says Quality advocacy services for local, national, and international clients, in all aspects of dispute resolution. Recognized by Canadian Lawyer as one of the Top Litigation Boutiques in Canada. Punching above our weight for 25 years. Untitled-3 1 www.CANADIAN Lawyermag.com JULY 2012 45 12-06-06 10:29 AM

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