What is the test for establishing that there is privileged content in a document?

Wood J. A.'s reasons in Hamalainen v. Sippola, supra clearly indicate that it is with respect to each document that these facts must be proven. It is not sufficient to address the documents to which privilege is claimed as a whole: The onus is on the party claiming privilege to establish on the balance of probabilities that both tests are met in connection with each of the documents falling within the claim. As was so in the Shaughnessy Golf Club case, no effort was made in the material filed by the defendant in this case to distinguish one document from another in meeting that onus. The assumption seems to have been that by establishing that litigation was in reasonable prospect from the outset, the claim of privilege must necessarily prevail. (at p. 261)

In applying this test it must be recognized that any particular document may have more than one purpose and a determination of the dominant purpose involves an individualized inquiry as to whether and when the focus changed from investigation to litigation. There is also no absolute rule that the decision to deny liability marks the point in which the conduct of litigation becomes the dominant purpose underlying the production of each document for which privilege is claimed: per Wood J. A. in Hamalainen v. Sippola, supra at p. 262.