Litigation privilege protects documents and communications created for the dominant purpose of existing or reasonably anticipated litigation, meaning an Edmonton accident lawyer may be able to prevent certain investigation records, surveillance materials and litigation-preparation work from being disclosed to the opposing side. The privilege gives each side a private space to prepare its case without premature disclosure.
What Does Litigation Privilege Protect?
Litigation privilege is a rule that limits the usual requirement to disclose relevant information during a lawsuit. It can protect material created for litigation preparation, including work involving third parties.
That can matter in a personal injury claim. A defendant or insurer may hire an investigator, collect surveillance footage or communicate with other people to prepare for a dispute. The fact that a lawyer received the material does not automatically make it privileged. The purpose behind its creation is what matters.
The Supreme Court of Canada established the leading framework in Blank v Canada. A record generally needs to meet two requirements:
- Litigation was in reasonable prospect when the record was created.
- Litigation was the dominant purpose for creating the record.
If a document would have been created during ordinary business activity regardless of a lawsuit, litigation privilege may not apply.
Not everything in an insurer’s or a plaintiff’s file qualifies.Â
| Materials protected in lawsuits include: | Materials that stay open to disclosure: |
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The Dominant Purpose Test Can Decide Disclosure
The party claiming privilege carries the burden of establishing it. A simple statement that a document was prepared for litigation won’t necessarily be enough.
Courts can examine the record’s nature, its timing and the circumstances surrounding its creation. They can ask what the document was intended to accomplish and if it would have existed without the anticipated lawsuit.
This distinction can arise during the car accident claims process. An insurance company might investigate an incident as part of normal claims administration. A later shift into litigation preparation can change the analysis.
For an Edmonton personal injury case, that could affect:
- surveillance footage and investigator reports
- witness communications
- medical reports obtained for litigation
- photographs and evidence collected for trial
- expert preparation
- litigation strategy and settlement preparation
The label placed on a file doesn’t decide the issue. The evidence behind the privilege claim does.
Not Sure If Evidence Is Being Withheld?
Our Sidhu personal injury lawyers in Edmonton assess privilege issues and help you understand what evidence may be available in your case. Get legal guidance today.
Alberta Case Shows Why Surveillance Files Matter
A recent Alberta case provides a useful example. In Blackstone v Chen, 2026 ABKB 69, the plaintiff (Sara Blackstone) suffered injuries in a pedestrian motor vehicle accident and claimed damages for loss of income and earning capacity. The defendant (Zhong Yuan Chen) did not dispute liability but retained a risk management firm to conduct surveillance.
What the plaintiff sought: the complete surveillance file, including the report, raw footage and still photographs. The defendant claimed litigation privilege.
What happened next: The Alberta Court of King’s Bench refused to order disclosure at the case-management stage. The court relied on Alberta authorities including:
- Laube v Juchli, 1998 ABCA 319
- Pfeifer v Westfair Foods Ltd., 2004 ABCA 422
- Terrigno v Fox, 2023 ABKB 89
Those decisions support the principle that a party can maintain privilege over material intended exclusively to impeach a trial witness if the existence of the privileged record has been disclosed.
That doesn’t mean the entire issue was settled. The trial judge was left to decide questions about admissibility and use. If the surveillance report is admitted to challenge credibility, the judge can consider if other parts of the file concern the same particular subject matter and should then be disclosed.
For car accident lawyers, the case shows why the purpose and intended use of evidence can matter as much as the evidence itself.
Privilege Isn't a Blanket Shield
A party can’t simply mark an entire file as privileged and expect the court to accept that position. Each claim needs a factual foundation.
For example, the TransAlta Corporation v Market Surveillance Administrator, 2015 ABQB 180 shows what can go wrong with broad privilege claims. The court found that many records were not protected after the party failed to provide enough information supporting its claims. Records that were properly connected to litigation-related information gathering received protection.
This distinction can be significant in personal injury accidents.
- Routine records created for business purposes may remain available to the other side.
- Records created mainly for litigation preparation may be withheld.
A privilege dispute can arise in cases involving serious injuries, spinal cord injuries, traumatic brain injuries, catastrophic injuries or post-traumatic stress disorder. Evidence about medical expenses, medical costs, medical treatment, medical appointments, chronic pain, emotional distress, lost wages and future wage loss can affect the value of a claim. But the question is whether the opposing side can inspect the records used to build its case.
Litigation Privilege Is Different From Solicitor-Client Privilege
Litigation privilege and solicitor-client privilege aren’t interchangeable.
Solicitor-Client Privilege Protects confidential communications between a lawyer and client made for legal advice. | Litigation Privilege Protects litigation preparation and can extend to communications involving third parties. |
The duration can differ, too. Litigation privilege generally ends when the proceeding concludes. There can be an exception for closely related proceedings.
The Alberta Court of Appeal addressed this in Pederson v Allstate Insurance Company of Canada, 2020 ABCA 65. The court considered if privilege from one lawsuit continued into another related action. It identified four factors:
- Are the parties the same or related?
- Do the issues arise from the same or related cause of action?
- Are there common issues?
- Do the proceedings have the same essential purpose?
In Pederson, the earlier personal injury action and later statutory insurance action were not considered closely related enough to continue the privilege.
How Privilege Can Affect Your Edmonton Injury Claim
If you’re trying to gather evidence after a car crash, privilege can affect what the other side must provide. The same can apply to motorcycle accidents or a truck accident.
Your lawyer may need to examine:
- when the record was created
- who created it
- why it was created
… and whether:Â
- litigation was reasonably anticipated
- the record would have existed without litigation
- privilege was waived
- another proceeding affects the privilege
Your legal team can then challenge an unsupported privilege claim or defend a legitimate one.
This can become relevant when pursuing compensation for medical care, future care, lost income or other losses. It can affect negotiations, trial preparation, and the evidence available for cross-examination.
An experienced personal injury lawyer can assess these issues in the context of your facts. Edmonton personal injury lawyers may use case law and court procedures to test if withheld evidence qualifies for protection.
A personal injury law firm may encounter similar privilege questions in liability claims, personal injury lawsuits and wrongful death matters. The issue isn’t limited to one type of accident.
What Should You Do About a Privilege Dispute?
In a privilege dispute, don’t assume a withheld record proves the other side is hiding something. Don’t assume the privilege claim is valid either.
An experienced injury lawyers team reviews the disclosure record, gathers evidence about how contested records were created, and assesses the legal basis for withholding them. If you work with reputable Alberta personal injury lawyers, you may receive compassionate legal guidance about your options during an initial consultation.
Depending on the case, legal assistance may involve:
- challenging disclosure
- negotiating with the opposing party
- bringing an application before the court
Representation may be available on a contingency-fee basis, depending on the personal injury law firm and the agreement. You may visit our Sidhu Personal Injury Lawyers Edmonton office for a no-obligation consultation.
Been hurt by someone else's negligence and unsure what the insurer is holding back? Get compassionate legal guidance built around Alberta's rules of evidence. Book a consultation and let our team gather evidence the right way.
When Privilege Affects Your Injury Claim, Get Legal Advice
Litigation privilege can affect what evidence you can access, what the other side can withhold, and how your personal injury case moves forward. If you’re dealing with an insurer or preparing to take legal action, you don’t have to figure out these issues alone just to secure fair compensation. Our team at Sidhu Personal Injury Lawyers Edmonton reviews your case, explains your legal options, and helps you recover compensation you’re entitled to. Contact our Edmonton injury lawyers for a free consultation and get legal guidance based on the facts of your case.
Frequently Asked Questions
Can an insurer claim litigation privilege over its entire claim file?
No, an insurer cannot claim litigation privilege over its entire claim file. Privilege applies only to specific records that meet the applicable legal test, not automatically to every document the insurer holds. The party asserting privilege bears the burden of establishing that each record qualifies.
Can surveillance evidence be challenged if it is privileged?
Yes, surveillance evidence can still be challenged even if it is privileged. Privilege governs disclosure, not admissibility. A court can assess whether the evidence is admissible, relevant, or subject to procedural limits as a separate matter, regardless of whether privilege applies to its production.
Does litigation privilege end once a personal injury lawsuit settles?
Litigation privilege does not automatically end when a personal injury lawsuit settles. Alberta courts have recognized that privilege can survive a settlement if related litigation on the same subject matter remains reasonably foreseeable. That said, a signed release removes any practical reason to assert it going forward.
What happens if an insurer's file gets disclosed by mistake?
If an insurer’s file is disclosed by mistake, Alberta courts examine how the disclosure occurred and what the receiving party knew (or reasonably should have known) about the document’s privileged status. A judge can order the document returned or excluded from evidence, though the outcome may depend on how the receiving lawyer handled and used it after disclosure.