What is the dominant purpose in determining whether a document is subject to litigation privilege?
Ontario, Canada
The following excerpt is from R. v. Sachkiw, 2014 ONCJ 287 (CanLII):
[29] The test to be applied in determining whether a document is subject to litigation privilege is the dominant purpose test: Blank v. Canada (Minister of Justice), supra. Fish J. in stating the test again distinguished the two privileges at paragraph 60: “I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege….”
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