What is the test for relying on litigation privilege?

The party seeking to rely on litigation privilege must establish two elements: (a) that litigation was contemplated; and (b) that the documents for which litigation privilege is sought were created for the dominant purpose of litigation. (See Kennedy v. McKenzie, supra, at paras. 20 and 23).

Documents created for the purpose of investigation are not protected by litigation privilege simply because there was a contemplation of a denial of coverage and anticipated litigation to the anticipated denial. (Heasley v. Labelle 2013 CarswellOnt 17572 at para. 13).

Even though documents prepared after the date on which litigation was first contemplated are presumptively privileged, they may be excluded from privilege if their dominant purpose was not directed at the litigation at bar. (Mamaca v. Coseco Insurance Company, 2007 CarswellOnt 8133 at para. 14).