What is the test for a claim of solicitor-client privilege in a construction project?

British Columbia, Canada


The following excerpt is from Gardner v. Viridis Energy Inc., 2013 BCSC 580 (CanLII):

In Anderson Creek, the plaintiff contractor claimed against the defendant developers and their lenders for amounts due with respect to work, services and materials provided for a construction project. At para. 114, the court held that, as a minimum, to assess the validity of the defendant's claim of privilege in that case, what was required was a description of the nature of the communication, the date upon which it was created or sent, and the author and recipient. The court ordered the defendants to produce a more detailed list of privileged documents disclosing that information and gave the plaintiff liberty to reapply to challenge the claim of confidentiality. In Anderson Creek, the court applied the same minimum requirements for the description of documents for which privilege was claimed to a list of documents for which both solicitor-client and litigation privilege were claimed. However, it does not appear that counsel drew Leung v. Hanna to the attention of the court in Anderson Creek.

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