Dominant Purpose Test In Solicitor Client Privilege Harder To Meet Now

Now that the Supreme Court of Canada has denied leave to appeal in Suncor Energy Inc. v. Alberta (2017) 415 D.L.R. (4th) 499 (Alta C.A.) it will be harder to establish solicitor-client privilege in relation to documentation which was used in litigation. The appeal courts have ruled that those claiming privilege must show that it is the preparing or creating of the document which must have litigation as its dominant purpose not how the document is put to use. While the case was decided in the context of health and safety legislation, it will have broad implications for internal corporate investigations in a wide variety of regulatory matters including environmental.

The Court of Appeal was not persuaded that the judge at first instance had sufficient evidence that the dominant purpose of communications the company claimed privilege over was litigation. A Suncor employee had been fatally injured at a worksite and the company, anticipating litigation, began an internal