Executive Summary: Key Legal and Evidentiary Issues

• This interlocutory application concerns the production of documents claimed to be subject to litigation privilege, solicitor-client privilege, and redaction in a BC Supreme Court action filed on March 1, 2024.

• Plaintiff David Pratt retained a private investigator and a forensic accountant through his California counsel, Michael Shklovsky, to investigate the defendants prior to commencing litigation.

• Central to the dispute is whether Pratt put his state of mind and knowledge in issue — thereby triggering implied waiver of privilege — by relying on those investigation results to explain when the BC limitation period began to run.

• Partial disclosure of privileged documents was found to be inadequate, as fairness and consistency require full disclosure where a party uses privilege as a sword to justify a position and then as a shield to limit further disclosure.

• Redaction of the private investigator's and forensic accountant's identities was rejected, as the court found their identities were potentially relevant given that the information they provided and correspondence with them are producible.

• The solicitor-client privilege issue over the plaintiff's notations on the forensic accountant's spreadsheet was adjourned, as counsel had not fully canvassed the law and the document tendered was illegible.

Facts of the case

The underlying action, Pratt v. 3G Green Garden Group Inc. (2026 BCSC 1045), was filed in the British Columbia Supreme Court on March 1, 2024. The plaintiffs are David Pratt and 3G Green Garden Group LLC dba Emerald Harvest. The defendants are 3G Green Garden Group Inc., Emerald Harvest Inc., Robert Charles Higgins, and Sharon Elaine Higgins. The parties are also involved in parallel litigation in California, which was commenced on June 15, 2022. A separate application to dismiss the BC action on the basis that it was filed after the expiration of the limitation period is scheduled to be heard over three days commencing July 6, 2026.

In the lead-up to the California litigation, Pratt's California counsel, Michael Shklovsky, retained a private investigator on March 14, 2022, to gather information about the defendants — specifically 3G Green Garden Group Inc. and Emerald Harvest Inc. — and their relationship to 3G Green Garden Group LLC ("3GLLC"), in order to assess whether there was any factual basis for a legal claim. The investigation yielded two reports dated April 22, 2022, and April 29, 2022. Separately, Shklovsky retained a forensic accountant on February 28, 2022, to interpret 3GLLC's banking records and identify potentially suspicious transactions. The forensic accountant did not prepare a formal report but produced an annotated spreadsheet summarizing those banking records, which Pratt reviewed in mid-May 2022. Pratt made notations on the spreadsheet and sent it to his lawyer to obtain legal advice. Pratt states it was not until mid-May 2022 — when he had reviewed the forensic accounting work in conjunction with the private investigation reports — that he became aware of a factual basis for legal claims against the defendants.

Privilege claims and documents at issue

The application before Justice Thomas sought production of four categories of documents: the private investigator's reports and related correspondence; the forensic accountant's spreadsheet and related correspondence; and the names and contact information of both the private investigator and the forensic accountant, which Pratt had redacted from the produced materials.

With respect to the private investigator's documents, Pratt claimed California attorney-client privilege and work product doctrine protection for the California litigation, and litigation privilege for the BC litigation. He indicated a willingness to produce the two investigation reports and the initial retainer email (with the investigator's identifying information and payment terms redacted), provided the defendants agreed this would not constitute a waiver of privilege in any jurisdiction. With respect to the forensic accountant's documents, Pratt similarly claimed privilege and indicated a conditional willingness to produce the May 2022 version of the spreadsheet and the initial retainer email, again with identifying information and payment terms redacted. Pratt maintained that the notations he wrote on the accountant's spreadsheet were protected by solicitor-client privilege, as they were made for the purpose of obtaining legal advice.

Reasoning and analysis

Justice Thomas identified the threshold question as whether Pratt knew or should have known that the BC limitation period commenced earlier than mid-May 2022. By asserting that he did not discover the factual basis for his claims until he reviewed the investigation reports and forensic accounting spreadsheet in mid-May 2022, Pratt placed his state of mind and knowledge directly in issue. The court held that where a party uses privileged material as a sword — to justify or explain their conduct — and then seeks to shield related communications from disclosure, the longstanding equitable principle of fairness and consistency demands full disclosure.

The court drew on Huang v. Silvercorp Metals Inc., 2017 BCSC 795, and Pacific Sands Beach Resort Ltd. v. Co-Operators General Insurance, 2025 BCSC 858, for the proposition that where selective disclosure of privileged documents has occurred, fairness may require disclosure of all documents on the same subject to prevent a misleading picture. The court further noted that implied waiver can arise where a litigant relies on legal advice as an element of a claim or defence, causing the privilege to be lost. Justice Thomas found that the partial disclosure proposed by Pratt was inadequate, as it would allow him to choose what information to disclose while still deriving the benefit of the documents on which his limitation period argument depended. Accordingly, full disclosure of both the investigator's and accountant's files and correspondence — including any draft documents — was ordered.

On the redaction of the investigator's and accountant's identities, the court rejected Pratt's position that their identities were irrelevant because they were retained only as consultants and would not be called as witnesses. Justice Thomas reasoned that the information they provided and the correspondence with them are producible, and therefore their identities are potentially relevant; no true prejudice to the plaintiff in disclosing those identities was found.

On the solicitor-client privilege issue, both counsel acknowledged that solicitor-client privilege is near absolute, and neither had fully canvassed the applicable law. The copy of the spreadsheet excerpt tendered to the court was illegible, leaving Justice Thomas unable to assess whether the privilege had been waived. The court adjourned this portion of the application, directing that a new notice of application, response, and reply be filed with a legible copy of the record provided for judicial review.

Ruling and overall outcome

The defendants were the successful party on the contested issues that were resolved. The court ordered full production of the private investigator's and forensic accountant's files, correspondence, and draft documents, and rejected the plaintiff's position that the identities of those experts could be redacted. On costs, Justice Thomas found that the issues of litigation privilege and the redaction of the investigators' names were resolved in favour of the defendants, and awarded costs to the defendants in any event of the cause for the hearing. No specific dollar amount for costs was stated in the judgment. The solicitor-client privilege issue — pertaining to Pratt's notations on the forensic accountant's spreadsheet — was adjourned for further hearing, with the spreadsheet to be produced to the defendants in redacted form (with the plaintiff's notations redacted) pending resolution of that issue.