HMTQ v. Canadian National Railway Company 2008 BCSC 1677

The Supreme Court of British Columbia recently upheld a claim for common law litigation privilege asserted by Canadian National Railway Company (CN) over documents created in the course of carrying out an internal investigation of the collision of two trains.

The decision in HMTQ v. Canadian National Railway Company 2008 BCSC 1677 provides significant guidance on how to maintain litigation privilege over internally generated documents. It also appears to relax the evidentiary requirements for maintaining such privilege and for resisting disclosure of such documents seized during the execution of a search warrant.

The requirements to resist disclosure of documents based on litigation privilege are as follows:1

  • litigation was ongoing or was reasonably contemplated at the time the document was created; and
  • the dominant purpose of creating the document was to prepare for that litigation.  

HMTQ v. CN provides insight into when these requirements will be satisfied, and what evidence is required to maintain such privilege.

Prior to this case, the case law suggested that it was necessary to provide evidence to establish both of the requirements for each document sought to be covered by the privilege, including evidence from each document’s author about why it was created.2 In HMTQ v. CN, the court ruled that evidence on a document-by-document basis was not required when the underlying factual background provided a sufficient basis for establishing the two requirements.

In this case, the incident was held to be of such a nature (a train collision involving the rupture of cars loaded with toxic chemicals) that litigation, whether it be regulatory or otherwise, was a likely consequence. Moreover, the court held, in the absence of evidence from each document’s author, that the documents generated as part of CN’s internal investigation were created for the dominant purpose of promptly marshalling the available evidence to defend anticipated litigation initiated by one or more regulatory agencies.

It was significant to the court’s decision that CN’s in-house counsel requested the internal investigation - in writing - on the day of the incident, stipulating that the investigation was in anticipation of claims and litigation and was required in order to provide CN with legal advice in respect of such claims.

Any party facing an incident that could reasonably result in litigation would be well-served to follow this approach for any internal investigation of the incident that it undertakes.