Armeco Construction Ltd. v. Canada
T-1341-89
Hargrave P.
25/7/94
12 pp.
Application for production of expert's reports, collectively known as Hunter Report, for which defendant claiming privilege-Plaintiff claiming additional payment for work done at Victoria Airport Terminal-Work completed April 20, 1987, seven months late-Plaintiff first claiming additional payment in June 1986 when contract 60% completed-In August 1986 Department of Transport forwarding claim to Department of Justice with letter indicating claim excessive, compromise unlikely-Lawyer assigned to case concluding arbitration or litigation reasonable likelihood-Independent expert (Hunter) retained to assist lawyer in understanding issues so that could provide appropriate advice to Crown-Expert's reports provided directly to lawyer to assist analysis of claims, advise Crown in preparing, conducting defence to action commenced in June 1989-Plaintiff presenting increased second claim in November 1986, third claim in April 1988 strengthening lawyer's opinion litigation likely-Throughout production of various reports defendant continuing to negotiate-Plaintiff submitting provision of legal advice prior to December 1988 should not go to establishing privilege-Relying on dominant purpose test set out in Sauder Industries Ltd. et al. v. Ship "Molda" et al. (1986), 3 F.T.R. 190 (F.C.T.D.) requiring clear evidence of impending litigation at time reports commissioned by defendant's counsel-Application dismissed-Onus on party claiming privilege to establish it-By April 1988 both sides taking advice from lawyers-Portions of Hunter Report from and after April 1988 in contemplation of litigation and for that dominant purpose-Purpose of material over which privilege claimed and likelihood of litigation important factors, not presence or absence of negotiations-When lawyer commissioning report used to establish dominant purpose-Each portion of Hunter Report commissioned when litigation reasonable expectation-Hunter Report dominantly for purpose either of giving legal advice in earlier portions or later to defend case when litigation more certain.