Does privilege protect material that is "prepared for litigation"?

Alberta, Canada


The following excerpt is from Re Fauth, 2017 ABASC 3 (CanLII):

A different privilege protects material "whose dominant purpose is preparation for litigation" (Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 1). This is sometimes referred to as a "work product" privilege (perhaps because it seems to imply internally-generated material rather than something merely gathered from outside), but we think that term more likely to confuse than to clarify. This is because the privilege does not apply to all work product; that depends (per Lizotte, and per Ironside at para. 77) on the purpose – specifically, whether the work product was generated primarily for litigation preparation. We will therefore refer to this privilege as "litigation privilege".

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