What is the legal test for establishing litigation privilege?

First, several possible bases for setting aside litigation privilege are suggested in the passage from Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455 quoted by Rosenberg J.A. in Chrusz, at p.369: Both parties made their submissions on the basis that the psychiatrist's report was protected by solicitor-client privilege, and it should be considered on that basis. It is the highest privilege recognized by the courts. By necessary implication, if a public safety exception applies to solicitor-client privilege, it applies to all classifications of privileges and duties of confidentiality. It follows that, in these reasons, it is not necessary to consider any distinctions that may exist between a solicitor-client privilege and a litigation privilege. This passage makes clear that any recognized exceptions to solicitor-client privilege would also apply to litigation privilege. It follows that that the exceptions recognized in Smith v. Jones would also apply to claims of litigation privilege: First, where the innocence of an accused person is at stake, litigation privilege could be overridden to allow an accused to make full answer and defence to criminal charges; Second, where the materials involve communications that are in themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime litigation privilege will not attach; and Third, the public safety exception could also be used to defeat litigation privilege.