What is the proper test for establishing litigation privilege?
Ontario, Canada
The following excerpt is from Bartucci et al v. Lindsay et al, 2010 ONSC 3942 (CanLII):
The proper test with respect to establishing litigation privilege was summarized by Ducharme J. in Kennedy v. McKenzie [2005] O.J. No. 2060 as follows: A party asserting litigation privilege must establish that the documents were created: (a) for the dominant purpose of existing, contemplated, or anticipated litigation; and (b) in answer to inquiries made by an agent for the party’s solicitor; or (c) at the request or suggestion of the party’s solicitor; or (d) for the purpose of being laid before counsel for the purpose of obtaining his advice; or (e) to enable counsel to prosecute or defend an action or prepare a brief.
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