Executive Summary: Key Legal and Evidentiary Issues

• Acciona sought leave to appeal two orders upholding case-by-case privilege over municipal council documents in a breach of contract dispute involving the North Shore Wastewater Treatment Plant.

• Application of the Wigmore four-part test for case-by-case privilege was central to determining whether confidential municipal documents should be disclosed.

• The chambers judge reviewed each document individually and found that eight documents met all four Wigmore criteria, while ordering production of others with redactions.

• Acciona argued the judge's reliance on Kalen v. Brantford created a cabinet-like presumption of privilege for all municipal communications, which the appellate court found only marginally arguable.

• Concerns about informational imbalance and the District's expanding privilege claims were raised but deemed adequately addressed by the trial judge's ongoing case management.

• The Court of Appeal dismissed the leave application, finding the appeal was neither significant to the practice nor to the action and would unduly hinder the litigation.

Background of the construction dispute

This case arises from a complex civil action relating to the design, construction, and partial financing of the North Shore Wastewater Treatment Plant in British Columbia. Acciona Wastewater Solutions LP was the designer and builder of the facility, having entered into a project agreement with the Greater Vancouver Sewerage and Drainage District on April 5, 2017. The District terminated the project agreement effective January 20, 2022, when the project was partially complete. Acciona claimed over $250 million in damages for breach of various contractual duties, breach of the duty of honest performance, and wrongfully terminating the contract. The District filed a counterclaim alleging that Acciona breached the contract, including material breaches, and asserts that its claim for damages could be over $1 billion.

The disputed documents

The documents at the heart of this leave application fell into two categories. The first group, the "Task Force Documents," consisted of minutes and recommendation documents prepared by the North Shore Wastewater Treatment Plant Program Task Force, an ad hoc standing committee of the board of Metro Vancouver Regional District. The Task Force operated from September 2023 until it completed its mandate in March 2024 and was composed of mayors or councillors of the member municipalities of Metro Vancouver. It held meetings that were closed to the public, as required by its terms of reference and pursuant to section 90(1) of the Community Charter, S.B.C. 2003, c. 26. The second group, the "Closed Board Meeting Documents," were a series of documents prepared for or presented at closed meetings of the District's board of directors or committees. These meetings were lawfully closed to the public following a resolution of the board of Metro Vancouver affirming that the matters under consideration involved one or more enumerated situations in section 90(1) of the Community Charter, including litigation or potential litigation, the receipt of advice subject to solicitor-client privilege, and negotiations respecting the proposed provision of a municipal service.

The privilege dispute and the chambers judge's rulings

Document production in this case was extensive, with Acciona producing nearly four million documents and the District producing more than 200,000. The District initially claimed privilege over 19,000 documents. After successive hearings and withdrawals of privilege claims, by September 2025, only 266 documents remained in dispute: 249 Closed Board Meeting Documents and 17 Task Force Documents. The chambers judge reviewed a sample of 38 of these documents: 37 Closed Board Meeting Documents and one Task Force Document. He applied Professor Wigmore's four criteria for establishing confidentiality at common law: that the communications must originate in confidence; that this element of confidentiality must be essential to the full and satisfactory maintenance of the relationship; that the relationship must be one which should be sedulously fostered in the public interest; and that the public interest served by protecting the communications from disclosure must outweigh the public interest in getting at the truth and the correct disposal of the litigation. The judge held that the first two Wigmore factors were "clearly" met for the Task Force Document he reviewed, agreed that the third criterion was satisfied but only for matters enumerated under section 90(1) of the Community Charter, and on the fourth criterion found that the public value in protecting the confidence outweighed the truth-seeking function. He ordered 15 documents produced with redactions because they contained either privileged or irrelevant information, and found that eight documents in total were protected by case-by-case privilege.

Acciona's grounds for seeking leave to appeal

Acciona argued that the judge erred in his application of the Wigmore test on three fronts. First, they submitted that the judge erred in the second criterion by finding that confidentiality is essential to maintain the relationship between District board members and its employees or the Task Force, and in the third criterion by finding that those relationships ought to be fostered in the public interest. Second, they contended that the judge's reliance on Kalen v. Brantford was misplaced with respect to both the second and third Wigmore factors. Third, they argued that the judge erred in his assessment of the fourth Wigmore criterion by weighing the evidence's materiality to the dispute rather than weighing the public interest in adjudicating the case on the merits against the public interest in protecting the documents.

The Court of Appeal's analysis

Justice Winteringham assessed the leave application under the four-part test articulated by Justice Saunders in Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326. On significance to the practice, the Court found that unusual circumstances are inherent to case-by-case privilege, and the judge's decisions did not set a dispositive precedent because case-by-case privilege applies only on a case-by-case basis. On significance to the action, the Court noted the proposed appeals related to only eight documents out of more than four million, and the trial judge was best situated to determine whether privilege is properly extended over other documents in the future. On the merits, the Court found the argument regarding the judge's interpretation of Kalen was reasonably arguable about the scope of the privilege claim, but only by a very small margin. On hindrance to the litigation, the Court determined the appeal would delay the discovery process and create a procedural roadblock for the judge in rendering decisions about other documents put before him to determine privilege.

The ruling and outcome

The Court of Appeal dismissed both of Acciona's applications for leave to appeal, concluding it was not in the interests of justice to grant leave. Justice Winteringham noted that the appeal was neither significant to the practice nor significant to the litigation itself, that allowing it would create a procedural roadblock to advancing the litigation in the trial court, and that it mostly regarded discretionary decisions made by the judge about case-by-case privilege. The Court emphasized that the judge assessed the evidence before him and stated the legal principles applicable to the issue, and that he set out the relevant principles governing his assessment and then thoroughly considered the various legal issues advanced. The Court also noted that the judge's decisions as to case-by-case privilege may be revisited at a later stage in the litigation based on a better or different understanding of the exact issues in the case. Given this conclusion, it was unnecessary to consider the District's applications for leave to cross appeal and for a stay. The Greater Vancouver Sewerage and Drainage District was the successful party in this leave application; however, no specific monetary amount was awarded in this interlocutory proceeding. The underlying claims of over $250 million by Acciona and the District's counterclaim asserting damages that could be over $1 billion remain to be adjudicated at trial, which is set for March 2027.