PRACTICE |
Privilege |
British Columbia Hydro & Power Authority v. CSL Cabo (The)
T-1194-98
Hargrave P.
31/12/99
12 pp.
Action involving power loss caused when CSL Cabo anchored over, fouled plaintiff's underwater electric transmission line--Plaintiff retaining solicitors day after power failure--Litigation not commenced immediately as experience on earlier claim leading counsel to believe would take B.C. Hydro some time to make repairs, prepare claim documentation--Within weeks solicitors requesting report from B.C. Hydro for use in litigation--B.C. Hydro requesting Project Engineer to prepare report "for file and legal purposes"--Motion for production of report--Dominant purpose test used to determine whether document privileged--Adopted to achieve balancing of process of full discovery with appropriate recognition of claims of privilege--Bhadrachalam Paperboards Ltd. v. Philippine Victory (The) (1991), 49 F.T.R. 211 (F.C.T.D.), dealing with survey reports prepared in ordinary course of dealing with cargo damage claims soon after cargo discharged, distinguished as report herein commissioned by counsel--The Philippine Victory focusing upon whether litigation in contemplation at time survey reports prepared--Referring to Canadian National Railway Co. v. McPhail's Equipment Co. Ltd., [1978] 1 F.C. 595 (C.A.) wherein plaintiff, determined to expropriate defendant's land, had appraisal of land prepared before consulting solicitors--Court finding appraisal not privileged because when prepared no reasonable expectation of litigation--Noting no suggestion appellant's legal department involved until expropriation well under way--At best some evidence CNR treated expropriations as potentially litigious, but only after all attempts at settlement had failed could it be said "reasonable expectation of litigation"--Expropriation such as that in C.N.R. v. McPhail's Equipment, with only real issue being land value, very different from marine accident in which many points at issue, including liability and where injured party retaining counsel to go out and obtain in rem security--Every reason in this marine context to expect litigation--Very few incidents of fouling of underwater power cables, pipelines, settled completely voluntarily without assistance from courts in at least providing or forcing security, providing forum in which each side may test other's case--Dominant purpose test set out in Jordan v. Towns Marine Electronics Ltd. (1996), 110 F.T.R. 22 (F.C.T.D.); affd (1996), 113 F.T.R. 226 (F.C.T.D.), containing test enunciated by House of Lords in Waugh v. British Railways Board, [1980] A.C. 521 (H.L.)--There various of law lords adopted dominant purpose test from Australian Court of Appeal's decision in Grant v. Downs (1976), 135 C.L.R. 674 as touchstone of privilege, it being less stringent than sole purpose test governing up to that point--Two branches to dominant purpose test: purpose of report, reasonable prospect or reasonable contemplation of litigation at time of production of document--Dominant purpose may be set either by author, or by person commissioning report--Aid in litigation dominant purpose of counsel commissioning report-- Dominant purpose also instructing lawyers for purpose of litigation, notwithstanding ambiguous characterization given to Project Engineer--If any doubt as to dominant purpose from viewpoint of B.C. Hydro's instructions to Project Engineer, intention of B.C. Hydro's counsel ought to govern--Litigation at least "in reasonable prospect" when report commissioned--As both branches of dominant purpose test met, report privileged.