Court Upholds Internal Investigation Privilege

HMTQ v. Canadian National Railway Company 2008 BCSC 1677

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 trains.

The decision in HMTQ v. Canadian National Railway Company 2008 BCSC 1677 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 search warrant.

The requirements to resist disclosure of documents based on litigation privilege are as follows:¹