What is the impact of Rule 7-5(2) of the Canadian Rules of Civil Procedure on a motion to dismiss an application for litigation privilege?
British Columbia, Canada
The following excerpt is from Peaston v. College of Physicians and Surgeons of British Columbia, 2013 BCSC 2254 (CanLII):
She also highlighted, at para. 140, that a trial judge’s discretion under Rule 7-5(2) should be cautiously exercised and that cases where the privilege will be set aside are relatively few. This, of course, is to uphold the values protected by litigation privilege. The countervailing concern on a Rule 7-5(2) application is the ability for a party to conduct a thorough investigation in preparation for trial: Kelly v. Calcutt (1991), 63 B.C.L.R. (2d) 43, 30 A.C.W.S. (3d) 800 (S.C.) [Kelly].
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