Privilege – Dominant Purpose Test

This article will look at the multiple principles surrounding privilege and will highlight some of the leading authority on this subject in B.C.

A recent decision from the BC Supreme Court speaks to litigation privilege and outlines the test.  The case is referenced as Canning v Mann, 2019 BCSC 841 (CanLII).  The Plaintiff in this case applied to Court seeking the release of a statement made by the Defendant in an MVA (ICBC case) in which  “litigation privilege” was being claimed.  The Defendant (through his counsel) would not release this statement to Plaintiff’s counsel.

The main issue was identified by the Court:

The issue in this application is if the document was prepared for the dominant purpose of litigation.  The parties agree that the two-part test set out by the BC Court of Appeal in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254 (C.A.) governs the determination of whether this document needs to be produced to the plaintiff.  The test is:

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

b)    if so, what was the dominant purpose for its production?  

The Court identifies the test further and this is really the question you need to consider to assess whether a document can be placed under the category of “litigation privilege”:  is whether the document in question was provided by the party for the purpose of:

  1. obtaining legal advice; or
  2. to conduct or aid in the conduct of litigation.

The Court in this case ordered that the statement be released to the Plaintiff as the Defendant had not satisfied the “dominant purpose” test.

Here are a few tips as outlined n this decision:

  1. when litigation privilege is being claimed, an Affidavit must be filed by a party who has personal knowledge of the circumstances that create litigation privilege surrounding the subject document and provide information on the “dominant purpose” test;
  2. This is highlighted in Janson Estate v. Kvist, 2018 BCSC 1701, at para. 33 which is enumerated for ease of reference:

The proper procedure in response to an application challenging an assertion of privilege is to file affidavits from those who have personal knowledge of the circumstances that are said to create the privilege – in this case, the independent adjuster who took the statement from the insured, the ICBC employee who instructed the adjuster to do so, or at least an ICBC employee with personal knowledge of the policies surrounding the instruction of independent adjusters and the obtaining of statements: see Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180 (CanLII), per Gray J. at paras. 98, 101.Without such evidence, it will not usually be possible for the responding party to prove the circumstances surrounding the controverted document’s creation. The musings of defence counsel as to what may have been intended, based on his or her knowledge of what ICBC has done in similar cases, are simply not sufficient.

3. A party who has knowledge would be the adjuster who took notes or sought information from the person offering the statement;

4. A relevant party would also include a party that works for the insurer, in this case ICBC, and has knowledge of ICBC policies and the instruction of independent adjusters and the obtaining of statements;

5. A  note:  that without this evidence you will not be able to satisfy the “dominant purpose” test.

As the Affidavit in this case was from the legal assistant who worked for the defence counsel rather than the Affidavit of the independent adjuster who took the information, the Court stated that this did not represent “direct evidence of the dominant purpose for which this statement was produced.”  The document was therefore removed from “litigation privilege” and was released to the Plaintiff.

 Gardiner

Let’s continue our review on privileged documents.

A leading authority on the topic of privilege Gardner v. Viridis Energy Inc., 2013 BCSC 580 (CanLII) provides a very helpful review. 

This case law combines the tests outlined in several cases and if we note up Gardiner – there are a few new cases that offer further comments, but Gardiner is a very important and key case law for our study. 

We see that when listing documents as privilege, clarity is required.  Avoid blanket listings of privileged documents otherwise you will be faced with a tedious application which can be avoided. 

The onus is high on lawyers (and paralegals) to do their due diligence to properly identify and describe privileged documents.  The rules are helpful – but the case law DEFINES or interprets the rules – and that is what this review is all about.

The three-part test has been defined in Gardiner.

Greater disclosure applies for categories of litigation privilege.

It may apply to solicitor-client and/or legal advice privilege but the solicitor-client relationship must be protected.  The date and author’s identity may be protected in this category.  It is up to each lawyer to define or describe each document without revealing privileged information and should include in most, if not all instances, the author and recipient.  Again, in this category, it is up to the lawyer to determine (a matter of interpretation.)

Communications between clients and third parties and documents created by clients or third parties (but may also include documents/communications between lawyers and third parties) may be protected under the litigation privilege category if each document can satisfy the dominant purpose test.  These communications and/or documents are to be protected or deemed privileged if you can establish the following:

1.  each document must have been created when litigation was reasonably contemplated; and

2. the dominant purpose for creating the document was to prepare for that litigation.

This is a very “high” test, and if you review each and every document in your case with detail, you may start to realize that many documents that you thought were privileged are really not.  This case law defines the test very well.  

Each and every communication and/or document under the litigation privilege category has a limited exception to the rule of full disclosure.  In other words, greater disclosure applies when listing these documents.  eg:  1.  date the document was created, 2. the nature of the communication and 3. the author and recipient must be disclosed.

The Defendant in Gardiner was ordered to rename each and every document. (There were several emails listed in a blanket type listing) – don’t do this!

When you challenge another party on the listing of their Part 4 privilege documents, you may be surprised how many documents are suddenly removed from Part 4 and moved into the Part 1 category.

Don’t be afraid to challenge privileged documents – and seek the basis of why privilege is being claimed, and request further details if they are not provided in the list.

Case Law

Gardiner identifies a number of referenced cases.  They are all very important and I enumerate all of them for your reference.

  1. Keefer Laundry Limited v. Pellerin Milnor Corp. and others2006 BCSC 1180 (CanLII
  2. Hamalainen v. Sippola (1991), 1991 CanLII 440 (BC CA), 62 B.C.L.R. (2d) 254 (C.A.)
  3. Solosky v. Canada1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821
  4. Hodgkinson v. Simms (1988), 1988 CanLII 181 (BC CA), 33 B.C.L.R. (2d) 129 at 136 (C.A.)
  5. Dos Santos (Committee of) v. Sun Life Assurance Company of Canada (2005), 2005 BCCA 4 (CanLII), 40 B.C.L.R. (4th) 245, at paras. 43, 44, (C.A.)
  6. Leung v. Hanna (1999), 1999 CanLII 5377 (BC SC), 68 B.C.L.R. (3d) 360 (S.C.)
  7. Stone v. Ellerman2009 BCCA 294 (CanLII)
  8. Blank v. Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] S.C.J. No. 39, Fish J. said at para. 60
  9. Snow v. Friesen2008 BCSC 1664 (CanLII)
  10. Anderson Creek Site Developing Limited v. Brovender2011 BCSC 474 (CanLII)
  11. Nanaimo Shipyard Limited v. Keith et al2007 BCSC 9 (CanLII)
  12. Craig v. Smith2010 BCSC 1082 (CanLII)
  13. Bajic v. Friesen2006 BCSC 1290 (CanLII)

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