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
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A recent decision of the Ontario Court
of Appeal, D'Onofrio v. Advantage
Car & Truck Rentals Ltd., 2017 ONCA 5,
asks whether a party who takes "no
position" on a summary judgment
motion is later bound by the motion
judge's findings in the ongoing
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