What is the test for establishing solicitor-client privilege?

In Snow v. Friesen, 2008 BCSC 1664, the court held that where litigation privilege is claimed, the law favours greater disclosure than in the case of solicitor-client privilege. The onus was on the defendant to establish privilege on the balance of probabilities. The defendant did not provide evidence or a description of the dates or the nature of the documents or the context in which they were produced. Accordingly, the defendant failed to establish that the documents were created at a time when litigation was a reasonable prospect or that the dominant purpose for their production was litigation. Here, the defendant provided dates for each document, but their generic description as "E-mail" sheds no light on the context in which they were produced or whether they were made for the dominant purpose of litigation.

Another factor I must bear in mind in this case is that some of the documents in Schedule D 4.1 may also be properly subject to a claim of solicitor-client privilege. In Anderson Creek Site Developing Limited v. Brovender, 2011 BCSC 474, the plaintiff applied for production by the defendant of a better list of privileged documents. The defendant had claimed privilege for over 600 documents. Each document was numbered and described either as "communication" or "document." For each document, the ground of privilege was set out either as "litigation" or "solicitor/client" or both. The list of documents contained no further information. The court held that the description in the list of documents was not sufficient to comply with the requirements of Rule 7-1(7). At para.113, the court observed that it was hard to know in a given case how much description Rule 7-1(7) requires without revealing privileged information and that the answer depends on the nature of the case and the nature of the document.

In Anderson Creek, the plaintiff contractor claimed against the defendant developers and their lenders for amounts due with respect to work, services and materials provided for a construction project. At para. 114, the court held that, as a minimum, to assess the validity of the defendant's claim of privilege in that case, what was required was a description of the nature of the communication, the date upon which it was created or sent, and the author and recipient. The court ordered the defendants to produce a more detailed list of privileged documents disclosing that information and gave the plaintiff liberty to reapply to challenge the claim of confidentiality. In Anderson Creek, the court applied the same minimum requirements for the description of documents for which privilege was claimed to a list of documents for which both solicitor-client and litigation privilege were claimed. However, it does not appear that counsel drew Leung v. Hanna to the attention of the court in Anderson Creek.