Birring Development Co. Ltd. v. Binpal

2021 BCSC 1298 Birring Development Co. Ltd. v. Binpal IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Birring Development Co. Ltd. v. Binpal, 2021 BCSC 1298 Date: 20210705 Docket: S2011772 Registry: Vancouver Between: Birring Development Co. Ltd. and 538597 [B.C.] Ltd. Plaintiffs And Ravinder Singh Binpal, 0654142 B.C. Ltd., Avtar Bains and J.A.S. Bains Corporation Defendants Before: Master Bilawich Reasons for Judgment Counsel for Plaintiffs, by teleconference: A. Nathanson K. Milinazzo Counsel for Defendants, by teleconference: D. Taylor G. Paulson Place and Date of Hearing: Vancouver, B.C. April 21 and April 30, 2021 Place and Date of Judgment: Vancouver, B.C. July 5, 2021 [1] The plaintiffs apply for production and inspection of certain documents over which the defendants have claimed litigation privilege and common interest privilege. The disputed documents are five sets of email chains between the defendants Mr. Binpal, Mr. Bains and an unidentified member of Mr. Bains' family. These emails were exchanged in relation to drafts of an email that Mr. Bains eventually sent on July 30, 2020 to fellow directors / principals of companies who were shareholders in a holding company that was involved in a contentious sale of land. Background [2] This action arises from an agreement to sell two lots consisting of about 15-acres of unserviced bare land located at 18305 and 18379 94th Avenue (collectively, the "Property"), in the Port Kells area of Surrey, B.C. The four corporate parties are shareholders of 654139 B.C. Ltd. ("HoldCo"), which has held the two undeveloped parcels as a long term investment since about 2002. [3] Sewa Birring (now deceased) was principal of the plaintiff Birring Development Co. Ltd. ("Birring Co"). Jasdeep Birring (aka Jesse Birring) is Sewa's son and is a director of Birring Co. Hardev Dosanjh is principal of the plaintiff 638597 B.C. Ltd. ("Dosanjh Co"). Avtar Bains is principal of the defendant J.A.S. Bains Corporation ("Bains Co"). Ravinder Binpal is principal of the defendant 0654142 B.C. Ltd. ("Binpal Co"). Their respective shareholdings in HoldCo are Birring Co at 40% and the three other shareholder companies at 20% each. [4] Mr. Bains is a director and president of HoldCo and performs a variety of administrative functions for the company. [5] The plaintiffs allege that in July 2018, Mr. Binpal approached Mr. Dosanjh and Sewa Birring to suggest HoldCo sell the Property and that he had a client willing to pay a good price for it. Mr. Binpal is a lawyer in addition to being a businessperson. [6] By contract of purchase and sale dated August 1, 2018 (the "Contract"), HoldCo agreed to sell the subject properties to Port Kells 94 Development Inc. ("Port Kells") for the sum of $10.5 million. Sikander Basraon is a principal of Port Kells. [7] The plaintiffs allege Mr. Binpal and Mr. Bains induced them to agree to sell the Property for about $10 million less than what it was actually worth and then, without proper disclosure or consent, acquired a 40% interest in Port Kells for themselves. [8] The Contract was amended by addendum several times - September 15, 2018, October 31, 2018 and September 26, 2019. The addendum dated September 26, 2019 extended the completion date from March 29, 2020 to March 29, 2021. [Following the commencement of this litigation, the completion date was further extended to July 27, 2021.] [9] The September 2019 addendum included a term disclosing that Mr. Binpal and Mr. Bains, through their respective companies, would retain an interest in the Property as shareholders of Port Kells. The plaintiffs say they did not realize this was in the September 2019 addendum until about January 2020, when they received an executed copy from Mr. Binpal. It also apparently includes an acknowledgment that no legal advice had been given to or sought from Mr. Binpal and his firm and that they had been advised to independently review and obtain legal advice in connection with completion of the Contract and all addendums thereto. [10] The plaintiffs allege that they subsequently learned developers had been assembling land in the relevant area since 2017, servicing applications had been in progress since 2018 and that, as a result, the Property's value substantially exceeded the price in the Contract. The defendants deny they were aware of any land assembly or servicing applications at the material times. [11] In or about May 2020, Sewa Birring expressed a concern to Mr. Bains about the extension of the Contract's completion date as well as Mr. Bains and Mr. Binpal's involvement in the transaction. Mr. Birring indicated he was seeking legal advice. Mr. Bains says he relayed this information to Mr. Binpal. [12] In or about June 2020, Jesse Birring spoke to Mr. Binpal expressing concerns about the Contract. Mr. Binpal asked to meet with his father. Jesse insisted that he be present for any such meeting and that changes be made to the Contract, failing which his family intended to proceed with litigation. [13] Also in or about June 2020, Mr. Binpal says he consulted legal counsel about potential litigation. [14] In or about July 2020, Mr. Bains relayed to Mr. Basraon the Birrings' concerns about the extension of the payment date under the Contract. Mr. Basraon told Mr. Bains he would be in a position to cause Port Kells to pay the balance owing earlier than the March 29, 2021 completion date. [15] Also in July 2020, Mr. Binpal and Mr. Bains discussed the possibility that if Port Kells could complete the Contract earlier than March 29, 2021, it might allay the Birrings' concerns and possibly avoid or minimize litigation. [16] Following that discussion, Mr. Bains drafted an email that he proposed to send to the directors of HoldCo (Seva Birring and Mr. Dosanjh) that would contain the usual information that Mr. Bains customarily sent to the directors when a payment was being received by the company, as well as the information Mr. Basraon had provided with respect to Port Kells' ability to pay the balance of the purchase price earlier than the Contract completion date. [17] Mr. Bains says he exchanged a preliminary draft of the proposed email with Mr. Binpal and an unidentified member of the Bains family. It is these five emails regarding the draft that are the focus of the plaintiffs' application. It is the defendants' position they are protected from production by litigation privilege. [18] On July 30, 2020, Mr. Bains sent the final version of the email to Seva Birring, Mr. Dosanjh and Mr. Binpal. The subject line is "Port Kells Property". It states as follows [typographical errors are in the original text]: Hello everyone: I just wanted to keep everyone updated, I received the balance off of the funds from Sikander for the property taxes. He gave me a cheque for $38,904.60, along with the funds kept aside from everyones cheques earlier, this will pay the amount of the property taxes ($51,219.88), for both properties. I paid the property taxes earlier today, even though they have been deferred till September 2020. When I met with Sikander, he also indicated that he is prepared to close earlier, than the date indicated in the contract. He has had some funds come available to him from the proceeds of his townhouse development and could have these funds ready in the next 4 to 6 weeks. This would mean the full 40% of the purchase price ($4,100,000.00) would come to us immediately. We have already received $1,250,000.00 in deposits and therefore we would receive another $2,850,000.00. The remaining balance of $6,150,000.00 would start earning interest immediately, for the next full year. If we take advantage of this opportunity we would receive the following: [Birring Co] 40% $1,140,000.00 [Dosanjh Co] 20% $570,000.00 [Binpal Co] 20% $570,000.00 [Bains Co] 20% $570,000.00 Total $2,850,000.00 The remaining balance of $6,150,000.00, will start to earn interest at 4.45% (approximately). This is based upon the Prime rate at the Royal Bank, (2.45%) plus 2% as agree upon in the contract, hence 4.45%. At this interest rate we will receive approximately $273,675.00, in interest over the one year period. Spread out over the year this approximately $22,806.25 per month. Once again broken down into our respective percentage shares: [Birring Co] $9,122.50 per month [Dosanjh Co] $4,561.25 per month [Binpal Co] $4,561.25 per month [Bains Co] $4,561.25 per month Please note that these are approximate figures as the interest with the banks do fluctuate. The balance of the proceeds $6,150,000.00 we will collect in September 2021. All the taxes from the sale will not be due till 2022. Sikander has requested that we let him know no later than August 7, 2020, otherwise he will be allocating those funds to another project. Please let me know your thoughts, as soon as possible, so that I may notify Sikander by August 7, 2020. Thank you, Regards Avtar Bains [19] The plaintiffs allege that the July 30, 2020 email was misleading and believe the disputed emails will help establish this. [20] On November 6, 2020, the plaintiffs commenced this action. The claims include negligent misrepresentation, breach of fiduciary duty, knowing assistance / participation and conspiracy. [21] On December 18, 2020, the defendants filed a response to civil claim, denying all of the allegations made against them. [22] On February 19, 2021, Mr. Bains was examined for discovery. Mr. Bains was shown the July 30, 2020 email and testified that he did not recall the circumstances surrounding it. Plaintiffs' counsel requested that Mr. Bains produce all emails he has with Mr. Binpal and Mr. Basraon in relation to the July 30, 2020 email. This was recorded as Request #10. [23] The plaintiffs say Mr. Bains admitted during his examination that: a) There was no advantage to Mr. Bains' or Mr. Binpal's companies in the "opportunity" described in the July 30, 2020 email; and, b) Mr. Bains and Mr. Binpal crafted the July 30, 2020 email together and Mr. Bains emailed a draft of it to Mr. Binpal before it was sent to the other recipients. [24] On February 22, 2021, plaintiffs' counsel wrote to defendants' counsel listing the various requests made during the discovery, including requesting production of communications surrounding the July 30, 2020 email. This was not responded to as quickly as the plaintiffs desired, which eventually led to the plaintiffs filing on March 30, 2021 an application to strike the response to civil claim or alternatively for an order that the defendants list and produce in electronic form all emails relating to the preparation of Mr. Bains' July 30, 2020 email within 3 days. [25] On March 23, 2021, the day before the March 30, 2021 application was scheduled to be heard, counsel for the defendants wrote to counsel for the plaintiffs responding to document demands. The plaintiffs say the response made no reference to the documents sought on this application. [26] By email dated March 25, 2021, plaintiffs' counsel again requested production of the demanded documents. [27] On March 30, 2021, the plaintiffs filed and serve an application to compel a substantive response to the examination requests. [28] On April 14, 2021, the defendants issued a Second Amended List of Documents which listed the disputed emails as privileged in Part 4. The plaintiffs' application morphed into an application to challenge the claim of privilege. [29] In response to this application, Mr. Bains tendered an affidavit "clarifying" his discovery evidence regarding the July 30, 2020 email. His affidavit includes the following: a) He cannot recall the specific dates, but to the best of his memory, in or about April or May 2020, Sewa Birring spoke to him and relayed to him that he had concerns about the Contract that had been entered into between HoldCo as seller and Port Kells as buyer. Subsequently, Sewa Birring raised concerns about the involvement of Mr. Binpal and him in Port Kells and raised issues about their disclosure in that regard. Sewa Birring seemed concerned about the knowledge of Mr. Binpal regarding servicing amenities available in the area of the subject property. Mr. Bains relayed this information to Mr. Binpal in April or May 2020. b) He was surprised when Sewa Birring gave him that information because he and Mr. Binpal had disclosed their potential involvement in Port Kells to Sewa Birring and Mr. Dosanjh, who were also directors of HoldCo. c) In or about late May 2020, Sewa Birring indicated a concern about the extensions of time for payment in the Contract with Port Kells. Sewa Birring told him he was seeking legal advice. He thought at the time that the concerns being expressed were escalating. As a result, from about May 2020 he anticipated that litigation disputes were likely to arise between the shareholders and directors of HoldCo. d) Later in July 2020, he spoke to Mr. Basraon, principal of Port Kells, and informed him of what he understood to be the concerns raised by Sewa Birring regarding the extension of time granted to Port Kells to pay the purchase price for the property. Mr. Basraon told him that he would be in a position to pay the balance owed by Port Kells for the purchase price of the property more quickly than the Contract required. e) In July 2020, he and Mr. Binpal discussed the information Mr. Basraon had given with respect to his ability to pay the purchase monies that remained owing more quickly than the Contract required. At the time of that discussion, it seemed likely that a litigation dispute was going to occur amongst the directors and shareholders of HoldCo in connection with the sale of the property to Port Kells. f) He also discussed the concerns raised by Sewa Birring with a family member because they obviously shared a common interest as family in addressing the concerns that had been raised and any litigation that may arise from that. g) It was agreed he would draft a form of email that would be sent to the directors of HoldCo which contained the usual information that he customarily sent to them when a payment was being received by HoldCo and monies would be divided or distributed amongst the shareholders. It was also agreed that he would include in the email information that Mr. Basraon had provided with respect to his ability to pay the remaining purchase price sooner than the Contract required. h) He did a preliminary draft of the email to be sent to the directors of HoldCo after discussions with Mr. Binpal. He shared the draft with a family member who spoke with him about the affairs of Bains Co. He intended to address the concern that had been raised by Sewa Birring regarding the extension that had been granted to Port Kells. He hoped that if Mr. Basraon made the payment earlier, that concern might be alleviated or perhaps eliminated and it may affect the views of all parties with respect to the possibility of litigation. i) The July 30, 2020 email was the final result of exchanges that occurred between him and one of his family members, which discussions or communications were held in contemplation of the likelihood of a litigation dispute arising and because all three of them share a common interest in trying to address the concerns that had been raised by Sewa Birring which seemed to be part of the dispute he believed could end up in a lawsuit. j) At the time he gave his evidence at his examination for discovery, he focused on the July 30, 2020 email that was shown to him and did not recall at the time of questioning that there had been some drafts created before the final document was produced. He also did not recall all of the circumstances leading up to his state of mind at the time he sent the July 30, 2020 email. k) When he gave his answers at the examination for discovery, he had focused his attention on what was contained in the July 30, 2020 email about information Mr. Basraon had given regarding his ability to pay the purchase price at an earlier date than the Contract required. He testified that he certainly was not attempting to or intending to in any way mislead the directors of HoldCo with respect to the potential advantage of receiving payments at an earlier date than Port Kells was obliged to make them. He stands by his evidence in that regard. The content of the emails he sent was genuine and he believes accurate. l) By the time of the examination for discovery, although he had done his best to search his computer and provide documents to his counsel, he had not sent his lawyer copies of the drafts of the July 30, 2020 email because he did not think they would be relevant to the lawsuit. He did not at the time of his initial search of his computer focus his attention on any privilege which may attach to materials. m) Subsequent to the examination for discovery, with the guidance of counsel, he looked through his computer again to see of there were other emails that related to the July 30, 2020 email and he found some additional emails which were the drafts of that document. Reviewing them helped him to refresh his memory about the circumstances at the time he sent the July 30, 2020 email. n) It was not his intention at the examination for discovery to waive any privilege that existed with respect to any document that he was asked about. [30] Mr. Binpal also tendered affidavit evidence addressing the circumstances under which the disputed emails came into being, summarized as follows: a) Documents 4.2 [July 27, 2020 - "Email correspondence between defendants and a third party"], 4.4 [July 29, 2020 - "Email correspondence between defendants and a third party"] and 4.5 [July 30, 2020 - "Email correspondence between defendants and a third party"] all relate to the July 30, 2020 email. They were in contemplation of litigation and also in the context of common interest privilege. b) In or about May 2020, Mr. Bains had relayed to him that Sewa Birring had expressed concerns about the Contract entered into with Port Kells and the involvement that he and Mr. Bains had in that transaction. c) By June 3, 2020, he had been involved in a number of conversations with Jesse Birring. Sewa Birring was the principal of Birring Co and Jesse Birring was also involved in the company. d) By June 3, 2020, Jesse Birring had spoken to him about the Contract in connection with the sale of property owned by HoldCo to Port Kells. Jesse Birring expressed concerns about the Contract and wanted changes to be made to it. Mr. Binpal reiterated his wish to meet with Sewa Birring directly, as had earlier been requested by Sewa, but Jesse refused to permit that unless he was present at the meeting and unless changes would be made to the Contract, failing which the Birring family would proceed with litigation options. e) As a result of his discussions with Jesse Birring, it became clear to him by early June 2020 that it was likely that a litigation dispute would arise between the shareholders and directors of HoldCo and there was a likelihood that allegations might be made against him and Mr. Bains and their companies. He spoke to Mr. Bains about that by early June 2020. f) In early June 2020, he consulted with and retained legal counsel regarding the potential of a lawsuit being commenced by other shareholders of HoldCo against him and his company. g) He recalls that after the discussions he had with Sewa and Jesse Birring and Avtar Bains, he spoke with Sikander Basraon, principal of Port Kells and informed him of the general concerns that had been raised by Sewa and Jesse Birring regarding the Contract including an apparent concern regarding the extension of time had been granted to Port Kells to pay all of the purchase price for the property. h) Subsequent to that discussion, Mr. Basraon informed him that he would be in a position to provide the funds due to complete payment of the purchase price to HoldCo at an earlier date than called for in the Contract. i) He and Mr. Bains spoke about the information Mr. Basraon had provided regarding being to make payments earlier than the Contract provided. They discussed that if Mr. Basraon and Port Kells were able to make payment of the purchase price at an earlier date, there might be a possibility that the concerns raised regarding the extension of payment date would be alleviated or perhaps eliminated. In addition, they discussed that it would likely be favourable to HoldCo if it was paid the purchase price sooner than the Contract required. At no time did he attempt to or intend to mislead the directors of HoldCo, directly or indirectly, about the opportunity to receive early payment of funds from Port Kells. j) Following the discussions between him and Mr. Bains, Mr. Bains drafted a form of email correspondence that he proposed to send to the directors of HoldCo reporting customary information that Mr. Bains conveyed whenever payments were received by HoldCo. The email also included information to notify the other directors of Mr. Basraon and Port Kells' offer to pay the balance owing for the purchase of the property at an earlier date than the Contract required. k) He and Mr. Bains and a member of Mr. Bains' family exchanged email communications with respect to the draft email that Mr. Bains would send to the other directors. l) At the time those email exchanges occurred, he, Mr. Bains and the family member were clearly aware there was a reasonable prospect that litigation was going to occur, based on the comments and concerns that had been expressed by Sewa Birring to Mr. Bains and Jesse Birring to him. The email communications were shared amongst them because they had a common interest in attempting to address concerns that Sewa and Jesse Birring had raised, with a view to lessening or eliminating the chance that litigation was going to occur. The information contained in the email exchanges was in contemplation of litigation as well as being part of the common interest objectives of the parties to those email exchanges. m) He has not waived privilege in respect of those communications and it is not his intention to do so. Legal Basis [31] The legal principles applicable to a litigation privilege claim are summarized by Madam Justice Gray in Keefer Laundry Ltd. v. Pellerin Milnor Corp. et al 2006 BCSC 1180 at paras 91-93 and 96-101: 91 Litigation Privilege protects documents and communications made for the "dominant purpose" of preparing for ongoing or reasonably anticipated litigation, even if those documents are generated by third parties. (Voth Brothers Construction (1974) Ltd. v. North Vancouver School District 44 Board of School Trustees (1981), 29 B.C.L.R. 114, [1981] 5 W.W.R. 91 (C.A.); Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 at 136, 55 D.L.R. (4th) 577 (C.A.).) 92 This Litigation Privilege operates in tandem with the Lawyer's Brief Privilege to create a zone of privacy to facilitate adversarial preparation. Litigation Privilege has a narrower, more limited rationale than the privilege afforded to Legal Advice Privilege over confidential communications between lawyers and their clients. Although Litigation Privilege does protect the confidentiality of the lawyer-client relationship to some extent, the thrust of Litigation Privilege is the proper functioning of the adversarial system. The B.C. Court of Appeal has suggested that this means that even non-confidential information may be protected by Litigation Privilege if the relevant document was created for the dominant purpose of litigation. (College of Physicians of British Columbia, supra.) 93 Because communications between lawyers and their clients are covered by Legal Advice Privilege, and communications and documents collected by lawyers from third parties for the purpose of formulating and giving legal advice to clients are covered by Lawyer's Brief Privilege, Litigation Privilege is properly limited to communications between clients and third parties, and to documents created by clients or third parties, for the dominant purpose of pursuing litigation. However, communications between lawyers and third parties in the context of litigation are sometimes considered to be covered by Litigation Privilege, rather than Lawyer's Brief Privilege, because they in fact are covered by both subsets of lawyer-client privilege. 96 Litigation Privilege must be established document by document. To invoke the privilege, counsel must establish two facts for each document over which the privilege is claimed: 1. that litigation was ongoing or was reasonably contemplated at the time the document was created; and 2. that the dominant purpose of creating the document was to prepare for that litigation. (Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada (2005), 40 B.C.L.R. (4th) 245, 2005 BCCA 4 at paras. 43-44.) 97 The first requirement will not usually be difficult to meet. Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.) 98 To establish "dominant purpose", the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing "dominant purpose" to avoid accidental or implied waiver of the privilege that is being claimed. 99 The focus of the enquiry is on the time and purpose for which the document was created. Whether or not a document is actually used in ensuing litigation is a matter of strategy and does not affect the document's privileged status. A document created for the dominant purpose of litigation remains privileged throughout that litigation even if it is never used in evidence. 100 Milnor did not provide evidence from the creators of the four documents over which there is a contested claim of Litigation Privilege concerning their purpose in creating the documents. Again, I reluctantly exercised my discretion to review the four documents, but could not determine from the face of the documents whether they were properly the subject of Litigation Privilege. With some, it may be that they are the subject of Lawyer's Brief Privilege, but again that was not apparent from the face of the document. 101 In my view, the preferable practice when asserting a claim of Litigation Privilege over a document is to provide an affidavit from the creator setting out in the creator's own words the circumstances and purpose of the creation of the document. If it involved preparing for contemplated litigation, the court can assess the reasonableness of the anticipation of litigation on the basis of all the evidence of the circumstances at the time. [32] Associate Chief Justice Holmes summarized litigation privilege in United States v. Meng, 2020 BCSC 1461 at paras 27-31: 27 Litigation privilege is intended to "ensure the efficacy of the adversarial process": Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 27. It is not limited to lawyer-client communications, but extends to all communications or material for which the dominant purpose was litigation, ongoing or reasonably anticipated. This is in order to create a "zone of privacy" in which the parties may consider and prepare their cases without adversarial interference or a requirement of premature disclosure: Blank at paras. 27, 34. 28 Reflecting its purpose, the privilege protects communications between a solicitor and third parties, work-product materials, and otherwise non-confidential materials such as expert reports, if they are made or created for the dominant purpose of litigation. The privilege does not protect factual information: R. v. Papasotiriou-Lanteigne, 2016 ONSC 6145 at para. 31. 29 Although less absolute than solicitor-client privilege, litigation privilege too is a class privilege, not a privilege determined case-by-case after a balancing of other interests. 30 Where a party establishes that litigation privilege applies, a presumption of non-disclosure arises: Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 33. 31 Once the litigation for which the material was prepared has ended, so too does the privilege (unless there is related litigation pending or reasonably apprehended). There is no longer a reason to shield the information from disclosure: Blank at paras. 34-36. [33] In Raj v. Khosravi, 2015 BCCA 49 the court described the dominant purpose test as follows, at paras 12-13: 12 The second part of the test -- the "dominant purpose" of a document -- is more challenging to meet. It requires the party claiming privilege to prove that the dominant purpose of the document, when it was produced, was to obtain legal advice or to conduct or aid in the conduct of litigation (Hamalainen at para. 21). 13 This aspect of the test originated from a passage in the minority judgment of Chief Justice Barwick of the Australian High Court in Grant v. Downs (1976), 135 C.L.R. 674 at 677: Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection. [Emphasis added.] 15 This Court adopted the dominant purpose test in Voth Brothers Construction (1974) Ltd. v. North Vancouver School District 44 Board of School Trustees (1981), 29 B.C.L.R. 114 (C.A.) at 117, which it confirmed in Hamalainen at para. 17. 16 In applying this test, it must be recognized that any particular document may have more than one purpose. When a document is produced for dual or multiple purposes, one of them being litigation, and none of the purposes are dominant, the document should be disclosed. This principle is captured in the following excerpt from Lord Denning's opinion in Waugh, as reproduced in Hamalainen: [22] ... If material comes into being for a dual purpose - one to find out the cause of the accident - the other to furnish information to the solicitor - it should be disclosed, because it is not then 'wholly or mainly' for litigation. On this basis all the reports and inquiries into accidents - which are made shortly after the accident - should be disclosed on discovery and made available in evidence at the trial. [Emphasis added.] 17 A claim of privilege will succeed when a party can establish that a document produced for dual or multiple purposes, one of them being litigation, was produced for the dominant purpose of litigation. There is no absolute rule for determining whether litigation was the dominant purpose for the document's production (Hamalainen at para. 25). A finding of dominant purpose involves an individualized inquiry as to whether, and if so when, the focus of the investigation/inquiry shifted to litigation. This is a factual determination to be made based on all of the circumstances and the context in which the document was produced. As Wood J.A. explained in Hamalainen: [24] Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case. [Emphasis added.] 18 Thus, the focus of an inquiry may shift to litigation at any point along the continuum between the preliminary information-gathering stage and the final litigation stage. It may occur while other investigations are being conducted and other documents are being produced with respect to related matters that are not for the dominant purpose of litigation. There is no legal requirement that every potential or conceivable purpose for the creation of a document must be negatived before it can be found that the document was produced for the dominant purpose of litigation. The effect of such a requirement would be the adoption of the "sole purpose test", which was expressly rejected in Blank. [34] A party asserting that a document is privileged bears the onus of establishing the privilege - see Keefer Laundry at para 58. [35] Common interest privilege was summarized by Madam Justice Fitzpatrick in Western Potash Corporation v. Amarillo Gold Corporation, 2020 BCSC 17 at para 66: 66 Common interest privilege is succinctly explained in Ziegler Estate v. Green Acres (Pine Lake) Ltd., 2008 ABQB 552, as follows: [53] According to Thanki at 277, common interest privilege arises "where one party (party A) voluntarily discloses a document which is privileged in its hands to another party (party B) who has a common interest in the subject matter of the communication or in litigation in connection with which the document was brought into being." In the result, the document is privileged in the hands of party B. Unlike joint interest privilege, the common interest does not need to exist at the time the document is created; so long as the common interest exists at the time the document is disclosed, common interest privilege may be invoked. Thanki notes that, where joint interest privilege arises, it is usually not necessary to rely on common interest privilege; common interest privilege is "residual in nature." Plaintiffs' Position [36] The plaintiffs argue that the July 30, 2020 email and Mr. Bains' evidence on examination for discovery are decisively against finding litigation privilege. The email were to prepare a report on a commercial offer from Port Kells and Mr. Basraon to accelerate payment of the purchase price and in an effort to avoid litigation. The dominant purpose of the emails related to communicating the commercial offer and how it should be relayed to the other directors of HoldCo. [37] They note that the emails were not created by or at the direction of counsel and protection of these documents is not consistent with the zone of privacy purpose underlying litigation privilege. The documents are also not the kind that litigation privilege normally protects: they are not part of counsel's brief, they are not reports, witness statements, investigations or the like. [38] They note that the disputed emails relate to the July 30, 2020 email, which has already been produced. The plaintiffs argue that they are evidence of a conspiracy and that the defendants are using the litigation privilege claim to try to insulate evidence of conspiracy, which is one of the issues that the court has to decide at trial. Litigation privilege does not protect against disclosure of relevant facts. [39] The context of these emails is that Mr. Bains, a director and fiduciary of HoldCo, owes duties of full disclosure and undivided loyalty. He wrote an email based on communications he had with Mr. Binpal and Mr. Basraon seeking to persuade his fellow directors and shareholders to agree to a change in the Contract that he characterized as advantageous to all. Now he seeks to shield from disclosure facts relating to that offer, which they say Mr. Bains has admitted was presented in a misleading way. [40] Mr. Bains and Mr. Binpal tendered evidence indicating they may be sued over this transaction and the manner they arranged and presented this commercial offer was how they would avoid or limit that litigation. A motive to avoid litigation does not satisfy the dominant purpose test. The court should not give effect to such an argument from someone who is a fiduciary and that Mr. Bains asserting litigation privilege is incompatible with the statutory obligation he owed as a director when he presented the offer. [41] They also say the assertion of common interest privilege does not assist the defendants, because this is not a case where, but for the sharing of the emails, they would have undoubtedly been privileged. The emails were never privileged to begin with. [42] If any doubt exists, they say the court should exercise its discretion under Rule 7-1(20) to examine the documents in issue. Defendants' Position [43] The defendants say the disputed emails were created when litigation was a reasonable prospect, based on the conversations had with Sewa and Jesse Birring regarding concerns about the extension of time to complete the purchase of the property, the indication that Seva Birring was seeking legal advice and Jesse Birring's demand for changes to the Contract, failing which the family would proceed with litigation. The litigation was reasonably anticipated from about May 2020 onwards. [44] They say the subject emails were created for the dominant purpose of aiding in the conduct of anticipated litigation. Specifically, they were created in an effort to craft a communication to the other directors / shareholders of HoldCo conveying Port Kells' offer to complete the Contract earlier than required. The intention of Mr. Bains and Mr. Binpal was that delivering the proposal may address and perhaps assuage concerns raised by Seva and Jesse Birring, with a view to lessening or avoiding litigation. [45] They also argue that Mr. Bains' failure to recall the circumstances surrounding creation of the July 30, 2020 email when he was examined for discovery should not be construed as evidence that the disputed emails were not produced for the dominant purpose of litigation. Litigation privilege depends on the intention at the time the document was created. Failure to recall after the fact is immaterial, particularly when he was shown the document in isolation. His subsequent review of the relevant documents has refreshed his memory. [46] The defendants take issue with the plaintiffs' arguments based on statements regarding litigation privilege set out in Robert W. Hubbard's loose-leaf text , The Law of Privilege in Canada (Toronto: Thomson Reuters, 2021). One relevant assertion was that litigation privilege requires that the documents or communications be prepared, gathered or annotated by counsel or persons under counsel's direction to qualify for litigation privilege. The defendants say that is not a correct statement of law and the plaintiffs have not offered authority for it. [47] Examples of cases where the court has found that litigation privilege does not require involvement of legal counsel include Lizotte v. Aviva Insurance Co. of Canada, 2016 SCC 52 and Blank v. Canada (Minister of Justice), 2006 SCC 39, which confirm that litigation privilege applies to unrepresented parties. They also refer to Turnbull-Burnight v. CIBC World Markets Inc., 2007 NBCA 43 as an example where the plaintiff and her brother prepared detailed handwritten notes regarding her dealings with the defendants before she retained legal counsel, and these were found to be protected from production by litigation privilege. [48] They also dispute the suggestion that the disputed emails are the "kind" of documents that litigation privilege protects. [49] As an alternative argument, the defendants say that if the court is inclined to order that the disputed emails be produced, the order should not require that they be produced in electronic form rather than hard copy or PDF format. Analysis [50] The first stage is to assess whether litigation was ongoing or was reasonably contemplated at the time the disputed emails were created. This is generally the easier stage to satisfy. The evidence shows that Sewa and Jesse Birring told Mr. Bains and Mr. Binpal they were concerned about extended payment dates, Mr. Bains and Mr. Binpal's involvement in Port Kells and had threatened litigation if changes were not made to the Contract. These establish that litigation was reasonably contemplated when the disputed emails were exchanged. [51] The second stage is to assess whether the dominant purpose of creating the disputed emails was to prepare for that anticipated litigation. This is the more challenging stage to satisfy and requires a careful review of the facts surrounding creation of the disputed emails. [52] The evidence tendered by Mr. Bains and Mr. Binpal indicates that they intended that the disputed emails serve several purposes. They both testified that the purpose of the disputed emails was: a) To draft a form of email to be sent to the other directors of HoldCo reporting customary information that Mr. Bains conveyed whenever payments were received by HoldCo; b) To notify the other directors of Mr. Basraon / Port Kells' offer to pay the balance owing for the purchase of the property at an earlier date than the Contract required; and c) They hoped the final version of the email might alleviate or eliminate the concern raised by the Birrings regarding the extension of time to pay and that this might affect the views of all parties with respect to the possibility of litigation. [53] It is significant that Mr. Bains as director and president of HoldCo had a responsibility to communicate the accelerated payment offer to his fellow directors once it had been communicated to him by Mr. Basraon. The fellow directors were also (indirectly) shareholders, whose financial interests would be affected by the proposal. Mr. Bains was wearing more than one hat, so to speak, in relation to this reporting email. [54] Having considered the available evidence, I am not persuaded that the defendants have established that the dominant purpose for creation of the disputed emails was to obtain legal advice or conduct or aid in the conduct of anticipated litigation. It was at best one among several purposes but was not dominant. [55] I am also not persuaded that purpose c) above would qualify as being to aid in obtaining legal advice or to aid in the conduct of anticipated litigation even if I had concluded it was dominant among the three purposes above (I have not.) This sub-purpose indicates they were in part an effort to avoid or limit litigation before it started rather than an attempt to prepare for anticipated litigation. There is no evidence indicating the three persons involved in the disputed emails intended that they have any role in anticipated litigation should it go ahead. The authorities referred to on this application focus on documents created and information gathered to obtain legal advice or intended to aid in actual or anticipated litigation. [56] In view of my conclusion regarding litigation privilege, it is not necessary for me to address the defendants' argument concerning common interest privilege. [57] At the conclusion of the course of the hearing, I requested that counsel for the defendants send me a copy of the disputed emails in case I decided it was necessary to examine them pursuant to Rule 7-1(20). I was able to reach a decision without doing so. These will be returned to counsel for the defendants. [58] A further issue raised by the defendants related to the request that the disputed documents be produced in electronic form. The defendants object to this based on counsel for the defendants not having e-discovery litigation software, but they say they are prepared to provide them in PDF format if ordered. I do not understand the plaintiff's request to be for e-discovery format, but rather original electronic versions of the emails so that meta-data can be accessed. [59] The Defendants refer to Madam Justice Fenlon's (as she then was) reasons in Adroit Resources Inc. v. Tres-Or Resources Ltd., 2008 BCSC 1211. At paras 74-81, her Ladyship declined a request for production of the defendant's listed emails (numbering 1600) in electronic form to allow the plaintiff to assess their authenticity. In that case there was evidence that two of the defendant's representatives had fabricated time sheets which accompanied certain emails. The defendant objected based on how onerous locating and listing that many electronic documents would be. She declined to order production of electronic copies of emails on the basis that the plaintiff already had adequate evidence to prove fabrication using hard copies. She also noted that it did not appear the defendant was trying to cover up that fabrication. She did order production of electronic versions of spreadsheets based on the electronic versions having useful information about how the documents were created as well as electronic data from surveys would help facilitate preparation of expert reports. [60] I have not been directed to evidence indicating there are concerns about fabrication of the disputed emails, so at this stage it is sufficient for the defendants to produce the disputed emails in PDF format. The plaintiffs are at liberty to apply if information raising a concern about authenticity becomes available. Conclusion [61] The plaintiffs' application is for production and inspection of the disputed emails, namely documents 4.1 - 4.5 inclusive in the defendants' Second Amended List of Documents dated April 14, 2021, is granted. The defendants are ordered to list and produce them forthwith. [62] The application for production of the disputed emails in electronic form is dismissed. PDF format is sufficient at this time but the plaintiffs have liberty to re-apply if information raising a concern about authenticity becomes available. [63] The plaintiffs are entitled to costs of this application from the defendants, in the cause. "Master Bilawich"