Litigation privilege

How BC law treats it

In Canada, including British Columbia, the US work product doctrine is not the law. The equivalent protection is litigation privilege. The Supreme Court of Canada in Blank v Canada (Minister of Justice), 2006 SCC 39 held that it applies to documents and communications whose dominant purpose is existing or reasonably contemplated litigation. It is distinct from solicitor-client privilege. Solicitor-client privilege protects confidential communications between lawyer and client for legal advice and is essentially permanent. Litigation privilege protects the adversarial process by giving each side a zone of privacy to prepare its case. Because its purpose is different, litigation privilege can cover material that solicitor-client privilege would not, such as witness statements, investigator reports, draft expert analyses and communications with third parties, as long as the dominant purpose test is met when the document was created. It is temporary: it ends when the litigation, and any closely related proceedings, end. In Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52, the Court confirmed that it is a class privilege that a statute can override only with clear and explicit language. Under the Supreme Court Civil Rules, BC Reg 168/2009, Rule 7-1, parties must list all relevant documents, including privileged ones, and state the grounds for claiming privilege, without producing them. Documents created mainly for business purposes, such as routine incident reports, are generally not privileged even if litigation later follows. Expert reports that a party relies on at trial must be disclosed, so protection for expert work is limited once the expert is put forward.

What it means for your business

When a dispute is looming, business owners often commission investigations, accident reports or forensic reviews. Whether those documents must later be handed to the other side depends on why and when they were created. Bringing in counsel early and documenting that the work is being done for the purpose of anticipated litigation improves the chance of protection. Treating litigation privilege like the broader US work product doctrine can lead to unwelcome disclosure. Example: After a warehouse fire, a Delta logistics company's lawyer retains a fire investigator because the company expects a lawsuit from a customer whose goods were destroyed. The investigator's report is likely protected by litigation privilege, while the routine shift log filled out that night is not.

Risks and common mistakes

Assuming US work product rules apply in a BC lawsuit. Creating investigation reports for mixed business and litigation purposes without making litigation the dominant purpose. Failing to list privileged documents and the grounds for the claim in the list of documents. Forgetting that litigation privilege ends when the litigation and closely related proceedings end. Sharing privileged material widely or with the opposing party, which can waive the privilege.