Benning v. The Trustees of the IWA

Benning v. The Trustees of the IWA

Hodgkinson remains the governing authority in British Columbia: where documents were obtained after litigation commenced and were assembled or used by counsel for the dominant purpose of litigation as part of the litigation brief, litigation privilege applies; the master did not err and was not clearly wrong in...

Source-derived case information.

Citation
2010 BCSC 1422
Parties
Plaintiff/appellant: George Benning; Defendant/respondent: The Trustees of the IWA - Forest Industry Ltd. Plan
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
8 October 2010
Procedural Posture
Civil Appeal (discovery/disclosure) / Interlocutory Appeal From Master's Order on Production of Documents
Outcome
Appeal dismissed; application to compel production dismissed
Legal Topics
Litigation Privilege, Solicitor's Brief, Discovery and List of Documents, Dominant Purpose Test, Scope of Privilege
Source Language
english
Civil Procedure Evidence Privilege Insurance/benefits Litigation Litigation Privilege Solicitor's Brief Discovery and List of Documents Dominant Purpose Test +1 more

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Summary, issues, holding and outcome

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Parties

George Benning

Plaintiff/appellant

The Trustees of the IWA - Forest Industry Ltd. Plan

Defendant/respondent

Procedural Posture

Civil Appeal (discovery/disclosure) / Interlocutory Appeal From Master's Order on Production of Documents

Legal Issues

  1. 1 Whether Hodgkinson v. Simms remains binding authority in British Columbia on litigation privilege
  2. 2 Whether litigation privilege can extend to pre-existing documents obtained after litigation commenced and incorporated into counsel's brief
  3. 3 Whether the master erred in law or was clearly wrong in finding the Trustees met the onus to establish litigation privilege

Ratio Decidendi

Hodgkinson remains the governing authority in British Columbia: where documents were obtained after litigation commenced and were assembled or used by counsel for the dominant purpose of litigation as part of the litigation brief, litigation privilege applies; the master did not err and was not clearly wrong in accepting the affidavit evidence that established the dominant purpose and claiming of privilege.

Court Disposition

Appeal dismissed; application to compel production dismissed

Orders

  • Appeal dismissed
  • Application to compel production of documents denied