The Supreme Court of British Columbia recently upheld a claim
for common law litigation privilege asserted by Canadian National
Railway Company (CN) over documents created in the course of
carrying out an internal investigation of the collision of two
The decision in Her Majesty The Queen (HMTQ) v.
Canadian National Railway Company provides significant
guidance on how to maintain litigation privilege over internally
generated documents. It also appears to relax the evidentiary
requirements for maintaining such privilege and for resisting
disclosure of such documents seized during the execution of a
The requirements to resist disclosure of documents based on
litigation privilege are as follows:1
litigation was ongoing or was reasonably contemplated at the
time the document was created; and
the dominant purpose of creating the document was to prepare
for that litigation.
HMTQ v. CN provides insight into when these
requirements will be satisfied, and what evidence is required to
maintain such privilege.
Prior to this case, the case law suggested that it was necessary
to provide evidence to establish both of the requirements for each
document sought to be covered by the privilege, including evidence
from each document's author about why it was
created.2 In HMTQ v. CN, the court
ruled that evidence on a document-by-document basis was not
required when the underlying factual background provided a
sufficient basis for establishing the two requirements.
In this case, the incident was held to be of such a nature (a
train collision involving the rupture of cars loaded with toxic
chemicals) that litigation, whether it be regulatory or otherwise,
was a likely consequence. Moreover, the court held, in the absence
of evidence from each document's author, that the documents
generated as part of CN's internal investigation were created
for the dominant purpose of promptly marshalling the available
evidence to defend anticipated litigation initiated by one or more
It was significant to the court's decision that CN's
in-house counsel requested the internal investigation ―
in writing — on the day of the incident, stipulating that
the investigation was in anticipation of claims and litigation and
was required in order to provide CN with legal advice in respect of
Any party facing an incident that could reasonably result in
litigation would be well-served to follow this approach for any
internal investigation of the incident that it undertakes.
1 Keefer Laundry Ltd. v. Pellerin Milnor Corp. et
al 2006 BCSC 1180
2 Supra, at para 96 - 101
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In the recent case of Meehan v. Good, the Ontario Court of Appeal dealt with a situation in which a lawyer was retained to represent a client with respect to the assessment of the accounts of the client's former lawyer.
The recent case of Meehan v Good, 2017 ONCA 103, has some unsettling implications for lawyers, as the case leaves open the possibility of extending a lawyer's duty of care beyond the scope of the written retainer agreement...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).