Litigation Privilege

Trend to Disclosure

The Supreme Court in its 2006 decision in Blank v Canada stated, what was subsequently interpreted to be a “relaxation” in the acceptance of the litigation privilege, while the solicitor-client privilege has held fast to the tradition. This being said, these words were spoken in the context of a submission to revise the test from the “dominant purpose” to “substantial purpose”, one which was rejected. The Court did note that the test of dominant purpose was more suitable to the present momentum to favour disclosure:

I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure. As Royer has noted, it is hardly surprising that modern legislation and case law [translation] which increasingly attenuate the purely accusatory and adversarial nature of the civil trial, tend to limit the scope of this privilege [that is, the litigation privilege]. [p. 869]

Carthy J.A. of the Ontario Court of Appeal, repeated this same theme of advocating for disclosure, stating in Chrusz: ¹

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. [p. 331]

61 While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process. In this context, it would be incongruous to reverse that trend and revert to a substantial purpose test.

The commentary of the test for litigation privilege being “relaxed” was again noted by the Supreme Court of British Columbia in the 2007 decision of Master Caldwell in Stephen v McGillivray:

Counsel for the defendants submitted that the Blank decision does little to change the law regarding litigation privilege. With respect I disagree. The Blank decision clearly recognizes and affirms a relaxation in litigation privilege while solidly holding the traditional line as regards to solicitor-client privilege.

Relevant Time to test Dominant Purpose

This test of dominant purpose applies to the time at which the documents were created. Simply because the documents were later gathered at the instruction of legal counsel does not, in itself, make the documents protected by this litigation privilege. ² The test is whether the document was created with the dominant purpose to obtain legal advice or to aid in litigation. The litigation must be existing at that time or be reasonably contemplated.

In essence, the court will then conduct a factual analysis to determine whether litigation was reasonably contemplated and that the work being done was for the dominant purpose of litigation.

Carthy J. A., again with Manes & Silver in aid, stated as follows in General Accident v Chrusz:

“In assessing whether or not a communication was made with the dominant purpose of contemplated litigation, each case must be analyzed on its own facts, requiring inquiry into the purpose for which the report or communication were made. One must ask why this report was made. Was it made in the ordinary course of events, or due to some regulatory obligation? Or was it made to assist counsel in making or resisting a claim?”

There is also conflict in the law on the issue of what was the dominant purpose when the document was created. Must the dominant purpose then be the intent to prepare for pending litigation or might it suffice that such purpose arose later?

The Court of Appeal in B.C. favoured the privilege being attached to the documents in this context, although there was a strong dissent. Many decisions followed favouring the dissent encouraging early disclosure. ³ as reviewed in the B.C. S.C. decision of Madam Justice Fitzpatrick in Benning v The Trustees of the IWA [/efn_note]

This being said, the law in B.C. remains as stated in Hodgkinson. [/efn_note] The B.C. S.C. decision of Madam Justice Fitzpatrick in Benning v The Trustees of the IWA [/efn_note]

In Ontario, the court has favoured early disclosure and hence agreed with the dissent in the B.C. Court. ⁴ The law in New Brunswick is likewise. ⁵

Dominant Purpose

The basic test to determine if a document may meet the test of litigation privilege is whether it was created with the dominant purpose to conduct or assist in the conduct of litigation. ⁶ ⁷

To determine if the contested document meets this test, the court conducts a factual analysis to determine when it was that litigation was reasonably contemplated and that the work which was done was completed for the dominant purpose of litigation. ⁸

Dominant Purpose Submission Rejected

The decision of Madam Justice Sinclair Prowse in Trask v The Canada Life Assurance Company reviewed and rejected the insurer’s claim for litigation privilege.

All of the documents in question were prepared after the date of service of the claim. The issue was whether the dominant purpose of the creation of the documents was the litigation.

The defence asserted that the documents were protected as they were created after the commencement of litigation and because counsel was retained. These events, the court concluded, were not enough alone to engage the privilege. The question is what was the dominant purpose. The fact of litigation is not conclusive. Equally, the fact that counsel has been appointed was determined not to be conclusive of the issue.

On these facts, the court determined that the purpose of the documents in question was the assessment of the claims made by the plaintiff at the time of their creation. The fact that the dominant purpose may later have morphed into a litigation issue did not satisfy the test. The fact the documents may be later used in the litigation equally was not determinative.

This is the same conclusion reached by Manes & Silver, at page 106:

It is essential to note that “where communications are already in existence prior to the contemplation of litigation, the mere fact of their being handed to a solicitor for the purposes of the action does not make them privileged”.

It was noted that the New Brunswick Court of Appeal [2000] 225 N.B.R. (2d) 71 (C.A.) affirming the decision of Garnett J. on the initial motion, came to a view which paralleled that of Carthy J. A. of Ontario court in Edgar v Auld, in which the documents, in this case, hospital records, which were initially created for a purpose unrelated to the litigation could not be held as protected by the litigation privilege.

Dual Purpose

The court addressed the concept of “dual purpose” documents, describing documents which may have been created to process the plaintiff’s claim as well as to furnish counsel with information. These documents were said to possibly have two dominant purposes, in which case they may be redacted to sever the privileged portion.

To prove that the dominant purpose is litigation, the court stated, is not met by taking the documents as a whole and claim that the dominant purpose was to assist in litigation. The affidavit must also address other potential purposes of the document, as may apply, so that such other purposes may be eliminated or minimized to enable the court to determine if the document is privileged.

Litigation Real or Contemplated

The privilege attaches to documents created for the dominant purpose of furthering litigation. For this privilege to attach, litigation must be in existence or reasonably contemplated. It is not necessary for this privilege that solicitor client communication be involved. This privilege can be waived expressly or indirectly. ⁹

The decision of Quinlan J. in Panetta v Retrocom, which was not a first party insurer claim, but rather a slip and fall tort action, spoke to the case law on the varying degrees of the likelihood of litigation to arrive at the creation of the litigation privilege.

Certain cases, as noted by Quinlan J., without noted “provenance”, spoke of the test as of “substantial likelihood”. Quinlan J. noted other cases use the test of “reasonable prospect” and also stated that in tort claims, the prospect of litigation has been so defined from the moment of the event. Other cases speak of the “reasonable prospect” of litigation. That question remained unanswered.

A Class Privilege ?

The British Columbia Court of Appeal in Dos Santos v Sun Life Assurance concluded that the litigation privilege is not a blanket privilege. Each document must be determined on a case by case basis, as was determined in this case. This was also the conclusion in a 2024 decision in Alberta. ¹⁰

This conclusion is inconsistent with the doctrine of litigation privilege as a sub-species of solicitor-client privilege which is clearly a class privilege.

The distinction is important as otherwise the moving party must satisfy all the hurdles of the Wigmore test, including the precarious balancing of the fourth test, which is often a difficult task.

Such was the also the conclusion of Quinlan J., without reference to the Carthy J.A. reasoning, but seeking guidance from the Alberta Court of Appeal decision in Opron, noted below. There are no specific fact situations which lead inevitably to the finding of this privilege.

The Legal Brief

The question has arisen as to whether a document which becomes a part of the brief of documents gathered by legal counsel is, by this very act, protected by litigation privilege. This question was considered by the B.C. Court of Appeal in 1988.¹¹ The majority decision found that copies of public documents which were collected by legal counsel met the test of litigation privilege. The dissent of Craig J.A. stated that documents which were not privileged as they originated cannot become privileged simply because legal counsel made copies and assembled them into the brief.

The Ontario Court of Appeal agreed with the dissent. ¹²

The Supreme Court decision of Madam Justice Fitzpatrick in Benning v The Trustees of the IWA in October of 2010 reviewed in detail the Hodgkinson decision and its debate in other jurisdictions and concluded that it remained the law in B.C.

Onus

British Columbia Court of Appeal Hamalainen (Committee of) v Sippola concluded that the party asserting the privilege must satisfy the test to claim it on the balance of probabilities.

There rests upon the party asserting privilege the need to show a factual basis of the claim as was noted in Clark v Collicut, a 2013 decision of the New Brunswick Queen’s Bench. To the same end is the 2009 decision of the New Brunswick Court of Appeal in Seely v Corrier.

The Facts and the Document Distinguished

There is a distinction which has been drawn between the facts contained in a document protected by litigation privilege and the document itself. As noted by the Supreme Court of British Columbia in Hynes v Westfair Foods, the document may not be produced, but the facts that are contained within it are subject to disclosure at discovery and trial:

The blanket protection from disclosure given to privileged settlement communications may be distinguished from documents created for the dominant purpose of litigation but which contain facts or assumptions that are relevant and otherwise admissible. In such cases the document itself may not be admissible but the facts contained in the document may be subject to disclosure at discovery or trial if they are otherwise admissible.

The Ontario court came to a contrary conclusion in the April 2013 decision of Quinlan J. in Panetta v Retrocom:

If documents are privileged, so are the contents. “If the privilege is to mean anything, it must apply to the content as well as the physical document. The appellant cannot be compelled to, in effect, copy all parts of privileged documents dealing with facts and to hand the copies over. To rule otherwise would be to penalize the party who first investigated the matter by compelling him to hand over the complete fruits of his investigation of the facts to the other”: see Hill v. Arcola, supra, at para. 12.

The law in Saskatchewan is the same as in Ontario. ¹³

Witness Statements

There is an obligation to advise the contact details of a potential witness and the facts that witness may offer which is relevant to the case, but the witness statements themselves, need not be produced if the litigation privilege applies. Such was the conclusion of Quinlan J. in Panetta v Retrocom.

There is an obligation to provide the contact details of a potential witness and the facts that witness may offer which is relevant to the case, but the witness statements themselves, need not be produced if the litigation privilege applies. The facts which are referenced in the statement must be disclosed in examination for discovery, and the names and details of the witnesses, but the actual witness statements, having being prepared for the purpose of preparation for the litigation will be still subject to privilege. ¹⁴

Saskatchewan & Surveillance

The Queen’s Bench of Saskatchewan in Simair v The Manufacturers Life Insurance Company, a decision of Wimmer J. in December of 2007 considered a motion made by the plaintiff for production of surveillance materials conducted after the commencement of litigation and obtained on the instructions of counsel to assist in the defence of the litigation.

In the case at bar, the reports and related documents were prepared by a private investigator for the dominant purpose of obtaining legal advice, the surveillance records were all determined to be subject to the litigation privilege and not compellable.