Weinmann Electric (WE) alleged that it had been corruptly excluded from contracts put out to tender by the Niagara Falls Bridge Commission. WE's principal was interviewed by BMCI Investigations and Security, an outfit that conducts regulatory and compliance investigations, as part of the Commission's own review of its practices. WE, having sued the Commission, demanded production of BMCI's report, which it reckoned would be relevant to the litigation against the Commission in revealing whether contractors had been wrongly shut out of the tendering process. WE was also concerned that the Commission's agents had passed on allegedly defamatory comments about WE to third parties in the course of the review process. The Commission had also retained a firm of auditors to conduct an investigation, and claimed litigation and solicitor-client privilege over the reports of the auditors and the investigators.
Ramsay J of the Ontario Superior ordered production of both reports: Weinmann Electric Ltd v Niagara Falls Bridge Commission, 2013 ONSC 2805. Litigation privilege did not apply: neither report was commissioned with the dominant purpose of litigation, but instead to 'determine the merits of allegations [against the Commission] and to determine whether any internal action was required'. the fact the BMCI report was labelled as being 'for the purpose of litigation' did not alter that underlying reality. The Commission was clearly concerned about its reputation, but litigation was not top of mind when the report was commissioned. Claims of solicitor-client privilege over the BCMI report also failed: the investigators 'were not channels of communication between solicitor and client in any sense', nor did they provide expert interpretation necessary for the formulation of legal advice. BCMI merely gathered facts and its retainer, not being essential to the existence of a solicitor-client relationship, was not shielded by privilege.
http://www.canlii.org/en/on/onsc/doc/2013/2013onsc2805/2013onsc2805.html
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