Does the mere existence of a dispute or potential dispute give rise to privilege?
British Columbia, Canada
The following excerpt is from Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143 (CanLII):
The mere existence of a dispute or potential dispute does not give rise to the privilege. Only where the dispute has become “litigious” does the privilege arise. A dispute is “litigious” where litigation is commenced or contemplated. The person who claims the privilege bears the onus of establishing it: Cytrynbaum v. Gineaut Holdings Ltd., 2006 BCSC 468 at para. 26 [Cytrynbaum].
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