“The legal test to decide the appropriate remedy where privileged information is received by an opposing party or its counsel is set out in Celanese and more recently, in Continental Currency Exchange Canada Inc. v. Sprott, 2023 ONCA 61. The Ontario Court of Appeal, set out a three part test for resolving issues of unauthorized access to privileged documents; 2177546 Ontario Inc. v. 2177545 Ontario Inc., 2023 ONCA 694, at para. 11-16:, citing Continental and Celanese,:
a. At the first stage, the moving party (in this case, the husband) must establish that the opposing party (in this case, the wife) obtained access to relevant privileged material. In this case, the wife has acknowledged that she had privileged documents, but states she deleted them. Without the forensic review of what was taken by the wife surreptitiously, it is impossible for the husband to know the extent of privileged materials that she ahs obtained.
b. At the second stage, the risk of significant prejudice is presumed and the husband does not have the onus of proving “the nature of the confidential information” disclosed: Celanese, at paras. 42 and 48. Rather, the wife has the onus to rebut the presumed prejudice flowing from receipt of privileged information: Celanese, at para. 48. The presumption of prejudice can be rebutted by the wife identifying “with some precision” that: (i) she did not review any of the privileged documents in their possession; (ii) she reviewed some documents, but they were not privileged; or (iii) the privileged documents reviewed were nevertheless “not likely [to] be capable of creating prejudice”: Celanese, at para. 53. The evidence must be “clear and convincing” such that “[a] reasonably informed person would be satisfied that no use of confidential information would occur”: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, at pp. 1260-63; see also, Celanese, at para. 42. “A fortioriundertakings and conclusory statements in affidavits without more” do not suffice: MacDonald Estate, at p. 1263.
c. Where the precise extent of privileged information is unknown and possibly unknowable, the court should infer that confidential information was imparted unless the solicitor has satisfied the court that no information was imparted which could be relevant: MacDonald Estate, at p. 1290. The husband cannot assess what has been taken from him, without a third-party review of the electronic records being conducted. Once a complete review of the computers is undertaken, and depending on the outcomes of that review, the husband may be entitled to seek a stay of proceedings or seek to remove the wife’s legal team. The scope of what was taken by the wife cannot yet be determined. As summarized in Celanese, at paras. 49-51, there are compelling reasons for thepresumption of prejudice and the reverse onus on the appellants in receipt of privileged information including:
i. Requiring the husband whose privileged information has been disclosed or accessed to prove actual prejudice would require them to disclose further confidential or privileged materials;
ii. Placing the burden on the wife who has access to the privileged information is consonant with the usual practice that “the party best equipped to discharge a burden is generally required to do so”; and
iii. The husband does not have to bear “the onus of clearing up the problem created by” the wife’s actions.
d. The third stage of the analysis is to fashion an appropriate remedy.
It is only after there is a complete record of the extent of the surreptitiously obtained evidence by the wife, through the forensic audit that the three-part test to determine the admissibility of that evidence can be applied, as set out in in Eizenshtein v. Eisenshtein, 2008 CanLII 3108 (ONCS).