Category: Privilege

Court Dismisses ICBC’S Claim That Surveillance Evidence And Investigator’s Report Are Protected By Litigation Privilege

In Oates v. Burton, the Plaintiff was injured in a motor vehicle collision, and consequently commenced an ICBC claim for damages for pain and suffering, as well as various other types of damages.


At one point in time, the Plaintiff, represented by counsel, received total temporary disability (TTD) benefits from ICBC. At another point in time, approximately seven months later, an extension of TTD benefits was requested by Plaintiff’s counsel. Less than two weeks later, surveillance evidence and an investigator’s report were created by ICBC. Shortly thereafter, the Plaintiff started to receive TTD benefits again.


With respect to the injury component of the lawsuit (the litigation), the Plaintiff sought production of the surveillance evidence, and the ensuing report of one of ICBC’S investigators. However, ICBC refused, taking the position that this documentation was protected by litigation privilege in the sense that it was created for the dominant purpose of the injury component (not the TTD benefits component) of the lawsuit.


The application was originally heard in front of a Master, who dismissed the Plaintiff’s application for production of the “Investigation Report and Video” (Item 4.3 of the Defendant’s List of Documents).


The Plaintiff appealed to the Supreme Court of British Columbia. The Court was left to decide the issue of whether or not the documentation sought by the Plaintiff was protected by litigation privilege, more specifically whether the report and surveillance evidence were generated for the dominant purpose of use in litigation. The Court noted the two step test that the Defendant must meet in order to establish privilege, namely :


(a) was litigation in reasonable prospect at the time the document in dispute was created? and,

(b) if so, was the dominant purpose for the document’s creation for use in litigation?


The Court did not agree with the position argued by ICBC’S lawyer that the documentation in question was protected by litigation privilege, ruling that the surveillance and the report of the investigator were likely created for the purpose of the injury component of the lawsuit (the litigation), as well as for the purpose of investigating the Plaintiff’s claim for income loss benefits.


[25] The plaintiff argues that at least one purpose that underlay the creation of Item 4.3 was the defendants’ desire to investigate or assess the plaintiff’s TTD benefits claim. Furthermore, and importantly, the plaintiff argues that it was necessary for the defendant to expressly address the relationship between the plaintiff’s TTD benefits claim and the creation of Item 4.3.


[31] I do not say that a deponent, who prepares an affidavit that is intended to support a claim for litigation privilege, must address and negate all other potential or notional purposes, however remote, for which that document might have been prepared. In this case, however, the prospect or likelihood that Item 4.3 was created to address, at least in significant measure, the plaintiff’s TTD benefits claim is not fanciful or speculative. The preparation of Item 4.3 is bracketed, on the one side, by the ten months from when the defendants learned that the plaintiff had retained counsel and by eight months, on the other side, by when the Notice of Civil Claim was ultimately filed.


[32] Conversely, Item 4.3 was prepared almost immediately on the heels of the defendants learning that the plaintiff was seeking an extension of her TTD benefits. In such circumstances, I do consider that there was a positive obligation on the part of the defendants’ deponent, the adjuster who oversaw the matter, to expressly and directly address the relationship of Item 4.3 and the plaintiff’s claim for TTD benefits, and the extent to which that claim gave rise to the creation of Item 4.3. That failure, in these circumstances, undermines the defendant’s affidavit evidence, calls into question the dominant purpose for the creation of Item 4.3, and is fatal to the defendants’ claim for litigation privilege over Item 4.3.


[33] This conclusion is reinforced by the affidavit evidence of the adjuster on this central issue – evidence that the Master in the Reasons accurately described as “not particularly persuasive”. Specifically, the adjuster in her affidavit said:


… By the summer of 2013, the medical information seemed to indicate substantial recovery but with some partial disability. To get a better understanding of her function, I hired a private investigator to review the Plaintiff’s level of activity. My intention on retaining the investigator was to use the results of the investigation to hopefully assist with the defence of the claim and to assist counsel to prepare for litigation not yet commenced but reasonably anticipated.

Court Rules Documents Are Not Subject To Privilege, And Orders Production

In Buettner v. Ghatto, the Plaintiff was injured in a motor vehicle accident, and consequently made an ICBC claim for damages for pain and suffering, and other heads of damages. ICBC originally admitted liability, but then later denied it. At one point in the litigation process, counsel for the Plaintiff made an application to compel production of certain defence documents, which ICBC’S lawyer claimed were subject to solicitor-client privilege, litigation privilege, and solicitor’s brief privilege. Master Caldwell would eventually order that the sought after documentation be disclosed to counsel for the Plaintiff.


[31]         If this argument is correct, all that any or all adjusters must do in any or all motor vehicle cases is determine, at the instant that the incident is reported, that he or she is going to deny liability and/or the presence of damages without the need to show any basis or accountability for such decision. Having done so, that will virtually ensure that litigation will be required to resolve any claim for loss. Thereafter, having created the virtual certainty of litigation, the defence will be able to reasonably argue that any and all investigations done from the instant that the incident is reported is for the dominant purpose of the conduct of the litigation which they ensured by the arbitrary denial of fault or damage.


[33]         Inherent in the reasonable prospect/dominant purpose test must be the expectation or requirement that there be at least some evidence of bona fides, due diligence or accountability on the part of the party seeking to rely on the prospect of litigation, which was created by their own actions, to support their claim of litigation privilege. Absent such requirement the test itself becomes meaningless. This is particularly of concern where, as here, the same insurer provides coverage for both parties and, presumably, owes each a duty of some form of meaningful investigation and determination of facts before reaching a decision on an issue as important as fault or liability for a motor vehicle accident.


[34]         I find that there is no evidentiary basis provided to support the decision of Ms. Hilliam to deny liability. Her unsupported decision cannot be used as justification for her to conduct a proper investigation into the facts of this motor vehicle accident while cloaking that investigation in a claim of litigation privilege. The time line and analysis of the court in Hamalainen is applicable to this case and to the evidence here, save as to the assertions of Ms. Hilliam which I reject. As in Hamalainen, the claim of litigation privilege regarding documents 4.7 to 4.12 inclusive, which documents were created prior to the June 17, 2013 form letter communicating the denial of liability, fails and all such documents are ordered produced forthwith and unredacted.

Court Orders ICBC To Produce Witness Statements To Petitioner

In Minnie v. ICBC, the petitioner witnessed an accident between a motor vehicle and a pedestrian at a marked crosswalk, and subsequently provided witness statements to ICBC. The injured pedestrian brought an ICBC claim for damages for pain and suffering, as well as other forms of damages. The petitioner sought production of the witness statements previously provided to ICBC, however ICBC refused, arguing that the petitioner did not fully exhaust her rights under the Freedom of Information Act, and that the statements were nevertheless subject to litigation privilege. The petitioner argued that she was not a party to the litigation, was not a party adverse in interest to the Defendant, ICBC, and that there was no issue of confidentiality that needed to be protected. The Court ordered ICBC to produce the statements to the petitioner.


[41] Although the respondent is entitled to have its litigation privilege protected, fairness requires that the petitioner be provided with a copy of her statement. The petitioner is a stranger to the litigation about the accident; she is not a party and she has no interest in it. I note that, if the petitioner was a party, there would be no question that she would be entitled to her statements, as I will discuss below. I have some difficulty imposing on a private citizen the rules of a “sporting event” that are more onerous than those placed on parties. The risk of applying those rules to a non-litigant without legal representation is that a person can, through accident or ignorance, make a mistake. The mistake can be only embarrassing to the non-litigant and/or it can distort the evidence before the court. Neither is desirable.

[42] Within the bounds of an adversarial system, private citizens should be encouraged to participate in the litigation process and disclosure to them of previous statements, as in this case, is a modest way to accomplish that objective. The petitioner could have insisted on some kind of legal document that assured her that she would get a copy of her statement before she gave it. She did not do that. In my view, she did not have to do it and nor should she now be at a disadvantage greater than a party for failing to do it.

[43] The petitioner is entitled to a copy of her statements as soon as practicable in order to review them herself and with her solicitor. However, I set conditions on that disclosure to recognize the litigation privilege that also attaches to the statements. The disclosure of the statements does not extend to disclosure by the petitioner to other persons, including the plaintiff in the accident that she witnessed (or counsel for that plaintiff). If, ultimately, there are issues at trial that involve the petitioner’s statements, they will have to be resolved by the trial judge.

Court Orders ICBC To Produce Investigative Reports

In Spenst v. Reemeyer, the Plaintiff was injured as a pedestrian when struck by a motor vehicle, and brought an ICBC claim for many heads of damages, including pain and suffering. ICBC denied liability in their Response to the Plaintiff‘s Notice of Civil Claim. An interlocutory application arose concerning the production of two investigative reports commissioned by ICBC, which ICBC’S lawyer refused to produce, claiming litigation privilege. Generally, for privilege to attach, litigation must be reasonably contemplated and the document must have been created for the dominant purpose of use in such litigation. The Court ruled that the reports in question failed to meet this test, and should be produced, even though the Plaintiff did in fact already have counsel at the time that the reports were commissioned.


[12] In short, the determination as to whether litigation is contemplated as a reasonable prospect is not merely subjective and arbitrary but rather must be objective and based upon reasonable information obtained by appropriate investigation.


[14] First, I have absolutely no evidence from that adjuster who apparently had conduct of the file for the first 18 months. I am not told whether or not any investigations were undertaken during that time as to either the issue of liability or the extent of damages. Plaintiff’s counsel submitted, and defence counsel did not dispute, that no denial of liability was ever communicated to the plaintiff prior to the delivery of the Response to Civil Claim.


[15] Second, Ms. Roach notes that the plaintiff retained counsel. Plaintiffs have a right to obtain legal advice, including legal advice regarding their rights and responsibilities arising out of motor vehicle or personal injury matters. Consultation with counsel is not a direct or even reasonable guarantee that one is on the road to active litigation; the involvement of counsel may well enhance the possibility of resolution short of trial.


[16] Third, Ms. Roach says that she only handles claims that are being litigated or are likely to be litigated and thus she determined that since the file was transferred to her it would be litigated. Strangely however, Ms. Roach, in her own correspondence of May 8, 2012 (the day she commissioned the investigations/reports) wrote to plaintiff’s counsel:


To minimize costs, I will work with you to conclude this matter as quickly as possible. If it is determined that your client is entitled to compensation, I will be prepared to release settlement funds only when the entire claim, including taxable costs and disbursements, has been resolved and the necessary release documentation completed. I look forward to working with you on this matter.


[17] At the time Ms. Roach wrote this conciliatory letter referencing concluding the matter, entitlement to compensation and settlement funds in response to a similarly conciliatory letter of introduction from plaintiff’s counsel, action had not yet been commenced, no position on liability had been taken and there is no evidence that any substantive investigation or even basic inquiry had been undertaken regarding any aspect of the plaintiff’s claim. The mere arbitrary assertion that this file is likely to go to litigation because this adjuster handles only litigation files and she had decided it would go to litigation is not objectively defensible on the evidence before me.


[18] Fourth, Ms. Roach says that the end of the limitation period was approaching and, by implication, litigation would have to be commenced. What this assertion fails to recognize is that there is a significant difference between the commencement of an action in order to protect against the expiry of a limitation period and the active conduct of litigation. In her May 8 correspondence, Ms. Roach expressly confirmed that her letter was not “a waiver or extension of any applicable limitation”. In order for any legitimate, even-handed settlement discussions to take place, as invited by her letter, it was necessary for plaintiff’s counsel to preserve the plaintiff’s right to claim at law for her alleged injuries in the event that negotiations failed.


[20] The evidence before me fails to objectively establish to any certainty that the reports which were commissioned and which are sought by the plaintiff were commissioned for any purpose other than for basic investigation of the plaintiff’s claim. There is no evidence to indicate that the adjusters had undertaken any type of earlier investigation to determine whether there was a reasonable, objective basis upon which liability should be denied or quantum questioned. The reports are ordered produced forthwith.

Court Denies ICBC Application For Plaintiff To Disclose Specialty Of An Expert Witness

In Blackwell v. Kwok, the Plaintiff was injured in a motor vehicle accident, and initiated an ICBC claim for damages for pain and suffering, as well as other heads of damages. At a Case Plan Conference, ICBC’S lawyer sought a court order directing the Plaintiff to disclose the specialty of an expert witness that the Plaintiff intended to rely on at trial. The Court would not grant the order sought by ICBC’S lawyer, stating that this would trump the privilege in the solicitor’s brief of Plaintiff’s counsel.


[11]         Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723.  In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial.  The Court denied the application:


[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.


[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.


[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …


[12]         I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7).  Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.


[13]         In my view, the defendants’ application should be rejected.  I see no prejudice if the normal rules for delivery of expert reports apply.  If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.


[14]         Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.


[15]         The Court declines to make the order sought.


Court Orders Plaintiff To Produce Witness Statements

In Cliff v. Dahl, the Plaintiff was injured as a pedestrian when he was struck by a motor vehicle accident, and brought an ICBC claim for pain and suffering, and various other forms of damages. Counsel for the Plaintiff hired an investigator to obtain witness statements. ICBC’S lawyer later brought an application for such statements, however the Court would not order the production of such statements, due to privilege. Later on, such witnesses were added as Defendants, however counsel for the Plaintiff refused to disclose the statements that these Defendants had earlier given, citing litigation privilege. This time, however, the Court ordered the production of the statements, citing the change in status from witness to parties adverse in interest to the Plaintiff, and that the Defendants were entitled to fairness in the process, and to be able to properly defend themselves against allegations that they were negligent.


[35]         Based on these authorities, I am satisfied that Mr. Weaver and Mr. Jones are entitled to a copy of the statement they provided to Mr. Cliff’s investigator. While their statements as witnesses would not be compellable due to litigation privilege, the change in their status to parties adverse in interest to Mr. Cliff place them on a different footing. Disclosure of these statements is necessary to ensure fairness in the litigation process, to enable these parties to properly defend themselves against allegations of negligence, and to support the truth seeking function of the court. Production of these statements is neither counter-productive to the adversary process nor to the confidential relationship between solicitor and client.

[36]         The facts here present a particularly compelling case for production of the statements. The applicants permitted Mr. Cliff’s investigator to take their statements at a time when they were not represented. They were not offered copies of their statements nor advised to seek legal advice about this matter. In addition, Mr. Cliff interfered with the insurer’s investigation of the claim by counselling the applicants not to give a statement unless they first contacted his lawyer. By taking these steps Mr. Cliff’s actions may have prevented a timely statement from the applicants that could have formed a substitute for the statements taken by his investigator. Now that five years have elapsed since the date of the accident, it is apparent that the applicants’ memory of the events has faded. While there is nothing improper about Mr. Cliff’s conduct, it has imbued the applicants’ case with more of a sense of urgency and necessity. There is simply no other means by which the applicants could refresh their memories of the events surrounding the accident.

[37]         For these reasons I order production of the signed statements of Mr. Weaver and Mr. Jones in possession of Mr. Cliff’s counsel and the audio recording of the statement. It is not appropriate that I order production of the transcript of the audio recording. This is an aid to follow along with the audio recording and commissioned by Mr. Cliff’s counsel. There is no principle of law that would require Mr. Cliff to share this work product with the applicants. They are free to commission their own transcripts of the audio recording. The applicants have not sought copies of the notes taken by Mr. Cliff’s counsel during his interviews with them. I do not regard these as statements made by the applicants; they are notes to refresh counsel’s recollection of the interview and nothing more. Accordingly, these notes should not be made the subject of a production order.


Court Rules CPC Judge Or Master Cannot Disregard Common Law Principle Of Privilege

In Galvon v. Hopkins, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages. At a case planning conference, ICBC’S lawyer obtained an Order requiring counsel for the Plaintiff to notify ICBC’S lawyer of the name of a neurologist that the Plaintiff had a future appointment with, and the names of future experts as well, including their area of expertise. The lawyer for the Plaintiff appealed, arguing that the Master did not have jurisdiction to make such an order. The appeal was allowed, with the Court commenting:


[21]         I agree with counsel for the plaintiff’s submission that Rule 5‑3 cannot be read as to allow the case planning conference judge or master to disregard the common‑law principle of privilege.


[22]         In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.


[23]         Furthermore, in my view, Master Bouck fell into error when she assumed that any medical expert with whom the plaintiff and her solicitor conferred automatically become a witness at trial. She did not appear to consider the possibility that the plaintiff would receive advice from the expert that would not result in a report being prepared or the expert being called at trial. She did not appear to consider that the object of the rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.


[24]         By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, nor warranted, I might add, by our Supreme Court Rules.


[25]         Having concluded that our rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiction to do so.


Clinical Records From Plaintiff-Arranged Neurologist Examination Subject To Litigation Privilege, If Report Not Produced

In Lanteigne v Brkopac, the Plaintiff’s lawyer arranged for the Plaintiff to meet with a neuropsychologist to explore the possibility of a brain injury, however did not order any report. ICBC’S lawyer brought an application to compel production of the clinical notes, however the Court denied the application, holding that clinical notes arising from a Plaintiff-arranged examination are subject to litigation privilege.


[21]                In my view it is improper to categorize the non-treating doctor or any other third party consultant retained on behalf of the plaintiff as a witness in which there is no property. The very fact that the plaintiff consulted with that physician or other individual during the course of litigation removes that individual from the “witness” category until such time as the plaintiff and counsel make a determination about whether or not that physician will be used as a witness at the trial, and preserves the right of privilege. The fact that the consulted doctor or other consultant never gives evidence preserves the privilege for all time unless waived by the plaintiff.


[22]           While the defendant and third party submit they could have the plaintiff examined by their own doctor or proceed with an examination of the doctor pursuant to Rule 7-5, they complain that those alternatives are costly, and, accordingly, the court should assist them by ordering the records of Dr. Coen be produced and thus save them the cost of proceeding with the other alternatives. The defendant also submits that Rule 1-3 provides the court with sufficient justification to order Dr. Coen to provide his notes of the plaintiff’s examination.


[23]           In my view, the defendant and third party have not shown any meritorious reason for abrogating the plaintiff’s litigation privilege related to the information obtained by Dr. Coen from the plaintiff as a result of the referral to Dr. Coen by the plaintiff’s solicitor. Nor, in my opinion, does Rule 1-3 provide justification for abrogating the privilege. Accordingly, the plaintiff’s application fails with costs to the plaintiff in any event of the cause.


Information Collected By ICBC In Initial Investigative Stages Not Subject To Litigation Privilege

In Fournier v Stangroom, ICBC collected information in the initial investigative stages following the accident. The lawyer for ICBC attempted to argue that such information is subject to litigation privilege, however the Court ruled that such information was in fact not subject to litigation privilege.


[10]           The next issue involves what has been referred to as the MEA Engineers file material.


[11]           On August 9, 2007 the initial adjuster on the file requested MEA or one of their engineers to examine the plaintiff’s vehicle in order to determine whether the plaintiff was wearing his seatbelt at the time of the collision. The engineer did so, communicated with the adjuster the following day with questions and subsequently reported to the adjuster on September 13, 2007. That adjuster referred to that report as being sufficient for his purposes; the next adjuster, Ms. Madsen referred to the “verbal report” as being “sufficient for the purposes of handling the claim SHORT OF LITIGATION” (emphasis mine).


[12]           In early 2011 defence counsel commissioned MEA to prepare an expert report, apparently regarding the seatbelt issue, for possible use at trial; he says that since such a report has now been requested, the engineer’s file material, notes and such are not producible unless and until the report is received and provided to plaintiff’s counsel 84 days before trial.


[13]           In cases such as this one, the adjuster or adjusters have duties of investigation on behalf of both the plaintiff and the defendants; there must, almost of necessity, be an initial period of adjusting or investigating to discover the factual matrix within which the adjusters will perform their duties and assess the file and the claims or roles of the interested parties. Absent such period and process of investigation the adjuster can have no reasonable basis upon which to conclude that there is a reasonable prospect of litigation and that all or part of what is done from any given point in time forward is done for the dominant purpose of litigation. In this regard see Hamalainen (Committee of) v. Sippola 1991 CanLII 440 (BC CA), (1991) 62 BCLR (2d) 254 (BCCA).


[14]           These engineers were approached within the first 3 weeks following the collision, clearly within the period of initial investigation and was even seen by at least one of the adjusters as being used for purposes of handling the file short of litigation. The investigative material, notes, correspondence and other such recordings of the engineers were not created at a time when litigation was a reasonable prospect; neither were they created for the dominant purpose of litigation. The fact that counsel has now requested an expert report from MEA does nothing to change that any more than a request to a G.P. or plaintiff’s medical expert that he or she provide an expert report renders that practitioner’s clinical records privileged.


[15]           The MEA investigative material, notes, correspondence and working papers which arose between August 9, 2007 and September 13, 2007 inclusive are not subject to a valid claim of litigation privilege; they are ordered to be listed and to be produced to plaintiff’s counsel within 14 days. If there are any other MEA materials which arose between September 14, 2007 and the date when defence counsel commissioned their expert report, those are to be listed with the required clarity, date and description in order that any further claim of litigation privilege can be properly assessed.

Court Discusses General Test For Litigation Privilege

In Snow v Friesen, ICBC’S lawyer objected to certain documents being produced, based on litigation privilege. The Plaintiff brought an application, and was largely successful. The Court went on to discuss the test for litigation privilege.


[5] Litigation privilege extends to those documents prepared for the dominant purpose of preparing for ongoing or reasonably anticipated litigation as discussed in Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614; 2 W.W.R. 132; 9 B.C.A.C. 254; 62 B.C.L.R. (2d) 254.  Wood J.A. (as he then was) for the Court of Appeal stated at ¶18 that the two following factual findings required answering to determine whether litigation privilege applied to a document:


(a)        Was litigation in reasonable prospect at the time the document was produced, and

(b)        If so, what was the dominant purpose for the document’s production?


[6] Wood J.A. held that the onus is on the party claiming privilege to establish on a balance of probabilities that both tests are met in connection each of the documents for which the party claimed litigation privilege.  With respect to the first factual finding, Wood J.A. wrote at ¶20 that


. . . litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet.


[7] With respect to the second factual finding Wood J.A. wrote:


21.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.


24.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.


[9]               The dominant purpose test in the context of litigation privilege came before the Supreme Court of Canada in Blank v. Canada, 2006 SCC 39 (CanLII), 2006 SCC 39.  Fish J. for the majority noted at ¶60 that the dominant purposes standard was consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure.


[10]           It is in the context provided by Hamalainen and Blank that the defendants’ claim to litigation privilege must be determined with the onus on the defendants to establish the privilege on a balance of probabilities.  The first question is whether the defendants have established that litigation was a reasonable prospect at the time of production of each of the documents over which they claim litigation privilege.