What is the test for obtaining privileged copies in a solicitor’s brief?
British Columbia, Canada
The following excerpt is from Aselstine v. Glynn, 2015 BCSC 209 (CanLII):
The case before me could be distinguished from Cahoon v. Brideaux on a few grounds. First, the document at issue did not come into possession of the solicitor in the middle of a trial, and on the evidence before me today, it appears that the document did not come into the possession of the solicitor as a result of the solicitor’s exercise of legal knowledge, skill, judgment and industry in assembling a collection of relevant copy documents in her brief. I say that because the claimant has sworn an affidavit saying she made the copies of the documents listed in the privileged section after the respondent and she had agreed to separate but before he moved out of the house. She made the copies, she says, for the purpose of matrimonial litigation. There is no suggestion in her evidence so far that she did it on instruction of counsel or that she had retained counsel at that stage.
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