The British Columbia Supreme Court, in Huang v. Silvercorp Metals Inc., has held that when Silvercorp voluntarily disclosed an otherwise privileged document to the British Columbia Securities Commission in response to a request, it waived litigation privilege over that document and could therefore be compelled to produce it in a civil proceeding.
The Court reiterated that disclosing litigation privileged documents to a securities commission pursuant to compelled disclosure requirements does not constitute waiver of privilege, following the British Columbia Supreme Court decision in Thomson v. Berkshire Investment Group Inc.. However, in the case of Silvercorp, the securities commission merely asked Silvercorp to give it the document, and did not compel their disclosure. Silvercorp's evidence was that it thought that if it did not give the document to the commission in response to the request, the commission would compel production anyway. Silvercorp also saw value in cooperation with the commission. The Court did not find these arguments persuasive, holding that the relevant issue was whether or not the production was compelled. Since it was not, regardless of whether it could have been, Silvercorp had waived privilege over the document.
This case is significant for defining the limits of waiver of privilege. It is also significant for reaffirming the Thomson decision, which has not been considered extensively but which is of broad application to regulated entities that can be the subject of regulatory investigations and related civil proceedings.