On September 8 2006 the Supreme Court of Canada released a decision that, for the first time, confirmed the distinction between the related yet conceptually different exceptions to compelled disclosure of documents and information in judicial proceedings: solicitor-client privilege and litigation privilege (Blank v Canada (Minister of Justice), 2006 SCC 39). These two kinds of privilege are often seen to overlap and are frequently mistaken to be one and the same. However, the court held that they:

• originate from different sources;
• are distinct in rationale; and
• do not share the same boundaries in their application.

The court also confirmed the dominant purpose test as the appropriate standard to be applied when invoking the litigation privilege - that is, a document or communication will be protected from disclosure under litigation privilege only where the dominant purpose for the creation of the document or communication was litigation, which was a reasonable prospect at the time the document or communication was created.