ICBC Law

As recently discussed, claims for litigation privilege can fail when a defendant’s insurer collects statements and information shortly after a collision in what is deemed to be the ‘investigative stage‘.  The simple reason being that such documents typically are not created for the dominant purpose of litigation.

This analysis, however, does not necessarily translate easily to statements obtained by Plaintiffs following a crash because Plaintiffs do not share the same investigatvie responsibilites that insurers do.   This reality was highlighted in reasons for judgement published earlier this year by the BC Supreme Court, Vancouver Registry.

In the recent case (Cliff v. Dahl) the Plaintiff was injured in a 2007 collision.  She hired a lawyer to assist her with her claim.   The lawyer hired an investigator who obtained statements from multiple witnesses to the collision.

ICBC brought an unsuccessful application to force the Plaintiff’s lawyer to produce these documents.  The Plaintiff refused stating these statements were privileged.  ICBC appealed arguing these documents were obtained during the ‘investigative stage‘ and should be produced.  In dismissing the appeal Mr. Justice Smith provided the following reasons highlighting the ‘investigative stage’ and the different duties of Plaintiffs versus insurers:

[22] The Master had before him an affidavit of plaintiff’s counsel which, sketchy as it is, did say that the information was gathered and the statements were gathered for the purpose of preparing for the plaintiff’s case in this action, as opposed to investigating the plaintiff’s case, and the Master apparently inferred from that that litigation was the dominant purpose. Sketchy as that evidence was, I cannot say that the Master was clearly wrong in drawing that conclusion.

[23] Defence counsel refers to a statement of the Master in which he says in effect that it is very hard to see how statements gathered by plaintiff’s counsel once retained would not meet the dominant purpose test. That is probably too broad a statement and certainly if the Master said that it was a general rule of law, that would be a question of law to be reviewable but in my view that is not the basis of the Master’s decision. He made a finding on the evidence before him.

[24] In that regard, I note that while the evidence from plaintiff’s counsel is sketchy, plaintiff’s counsel in this situation is in a somewhat different position from the insurance adjusters whose determination of dominant purpose is often at issue in other cases such as Hamalainen, supra.

[25] The point at which a plaintiff’s counsel moves from the stage of investigating and considering the possibilities of litigation to a firm decision to proceed and the subsequent efforts that have a dominant purpose of litigation depends of course on the information in counsel’s possession. Much of that information must necessarily come directly from the plaintiff and the plaintiff’s counsel must balance the need to show the dominant purpose of the document or the witness statement with the restrictions placed upon him or her by solicitor/client privilege.

[26] I infer from the material before me that the Master reviewed the evidence and found it sufficient to establish a dominant purpose. Whatever decision I might have made had the matter come before me, I cannot say that the Master was clearly wrong.

[27] Those are my reasons for judgment and so the appeal is dismissed.

Of note, this result was revisited after the witness subsequently became a party to the litigation.

Interesting reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing whether an otherwise privileged statement can be ordered to be produced in litigation where the statement was given by the opposing party.

In last month’s case (Cliff v. Dahl) the Plaintiff was injured in a collision when he was struck by a vehicle driven by the Defendant.  Shortly after the collision the Plaintiff’s lawyer obtained witness statements from a Mr. Weaver and Mr. Jones.

In the course of the lawsuit the Defendant Dahl requested production of these statements but the application was dismissed finding the statements were privileged.  Later Mr. Jones and Mr. Weaver were added as Defendants in the lawsuit.  They brought their own application for production.  Ultimately this was successful with the Court finding a different analysis is required when a party is seeking production of their own statement.   In compelling production Madam Justice Bruce provided the following reasons:

[35] Based on these authorities, I am satisfied that Mr. Weaver and Mr. Jones are entitled to a copy of the statement they provided to Mr. Cliff’s investigator. While their statements as witnesses would not be compellable due to litigation privilege, the change in their status to parties adverse in interest to Mr. Cliff place them on a different footing. Disclosure of these statements is necessary to ensure fairness in the litigation process, to enable these parties to properly defend themselves against allegations of negligence, and to support the truth seeking function of the court. Production of these statements is neither counter-productive to the adversary process nor to the confidential relationship between solicitor and client.

[36] The facts here present a particularly compelling case for production of the statements. The applicants permitted Mr. Cliff’s investigator to take their statements at a time when they were not represented. They were not offered copies of their statements nor advised to seek legal advice about this matter. In addition, Mr. Cliff interfered with the insurer’s investigation of the claim by counselling the applicants not to give a statement unless they first contacted his lawyer. By taking these steps Mr. Cliff’s actions may have prevented a timely statement from the applicants that could have formed a substitute for the statements taken by his investigator. Now that five years have elapsed since the date of the accident, it is apparent that the applicants’ memory of the events has faded. While there is nothing improper about Mr. Cliff’s conduct, it has imbued the applicants’ case with more of a sense of urgency and necessity. There is simply no other means by which the applicants could refresh their memories of the events surrounding the accident.

[37] For these reasons I order production of the signed statements of Mr. Weaver and Mr. Jones in possession of Mr. Cliff’s counsel and the audio recording of the statement. It is not appropriate that I order production of the transcript of the audio recording. This is an aid to follow along with the audio recording and commissioned by Mr. Cliff’s counsel. There is no principle of law that would require Mr. Cliff to share this work product with the applicants. They are free to commission their own transcripts of the audio recording. The applicants have not sought copies of the notes taken by Mr. Cliff’s counsel during his interviews with them. I do not regard these as statements made by the applicants; they are notes to refresh counsel’s recollection of the interview and nothing more. Accordingly, these notes should not be made the subject of a production order.

[38] Mr. Cliff shall produce the audio recordings and signed statements to the applicants within 14 days of this order and upon payment of the reasonable costs for production of copies thereof.

A trend developing in BC Caselaw is the demonstrated difficulty ICBC has trying to withhold documents in a personal injury lawsuit based on their ‘investigative’ responsibilities.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic.

In this week’s case (Gilbert v. Nelson) the Plaintiff was injured in a 2005 collision with a vehicle.  The Plaintiff was 13 at the time and was riding a bicycle.  Following the collision ICBC investigated the collision and obtained engineering reports and a further report from an independent adjuster.  In the course of the lawsuit the Defendant had access to these documents.  The Defendant refused to produce them claiming litigation privilege.

The Plaintiff brought an application to have these produced.   Master Taylor granted the application finding the documents were created during ICBC’s investigative stage.  In ordering production the Court provided the following reasons:

[35] Saying that litigation is a certainty is not the test for the dominant purpose.

[36] What I do observe from the facts before me is that no counsel was consulted or retained by the defendant or his insurer until after the notice of civil claim was issued in July, 2010.  While the retainer of counsel is not an absolute test as to whether or not documents were created for the dominant purpose of litigation, it is but one factor in this case that indicates that the defendant and his insurer were not preparing for litigation nor directing the course of the defence of a possible law suit, until a notice of civil claim was issued some five years post accident.  One would have thought that the defendants would have sought to establish the dominant purpose by showing on a balance of probabilities that the dominant purpose of the documents was to obtain legal advice or to aid in the conduct of the litigation.

[37] Most certainly the defendant and his insurer had followed a course of investigating the accident, and its dynamics, but other than telephone conversations Ms. Fall had with Mr. Gilbert on June 13 and 15, 2005, there is no evidence before me that the defendant or his insurer made a formal declaration to the Gilbert family by way of letter that liability for the accident was being denied.  In my view, a reasonable person would expect no less especially after the family was told that an assessment of liability would be made after receipt of the traffic analyst’s report which was anticipated to be received by Ms. Fall in August, 2005.

[38] In all of the circumstances, I find that the defendant hasn’t met the onus on him to satisfy me that there exists over either the CWMS notes or the reports currently listed in Part 4 of the Defendant’s List of Documents a litigation privilege, such that disclosure of the documents up to the date of the first letter from counsel for the plaintiff should not be made to the opposite party.  The only caveat will be that all references to reserves are to be redacted.

[39] The plaintiff shall have his costs for preparation for, and attendance at the hearing.

Further to my previous article on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the circumstances when a defence litigation privilege claim will fail due to records being created during ICBC’s “investigative stage” following a collision.

In last week’s case (Bako v. Gray) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit the Defendant listed several documents as privileged.  These included an ICBC adjuster’s notes and further the notes of an independent adjuster hired by ICBC.  The Plaintiff brought an application to produce these records.  The Defendant refused arguing these records were subject to litigation privilege and that they were created for the dominant purpose of preparing for litigation.

Master Caldwell rejected this argument finding the records were more likely created during ICBC’s investigative stage.  In ordering production of the records the Court provided the following reasons:

[5] In Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614 (C.A.) the Court of Appeal approved the reasoning and findings of Master Grist (as he then was) that there is an investigative stage and a litigation stage, that it was proper for the Master to determine when litigation became a reasonable prospect and further to determine when in the overall process the dominant purpose for the creation of documents became the preparation for or pursuit of litigation. The court further confirmed that in making that determination the Master was not bound or obliged to accept the adjusters’ opinions on those central issues to be decided…

[21] In his initial entry note in the defendant’s file on November 21, Mr. Matheson includes the following entries:

[22] On November 25, 2008 Mr. Matheson made further notes to the file, including:

[23] These entries clearly indicate that as of late November 2008, Mr. Matheson’s focus was on information gathering and settlement, with both being done quickly and before Mr. Bako retained counsel; when litigation type issues did arise they were referred to as “precautionary” or “just in case”, neither of which is at all consistent with his sworn assertion that he “believed this matter would result in litigation” when he first received the file.

[24] Based on my review of the materials, it is of little import whether Ms. McIntosh or Mr. Matheson had charge of the files between November 10, 2008 and March 16, 2009, or for that matter, September 22, 2009 when the Writ was filed and sent for delivery to ICBC. Nothing in the materials supports Mr. Matheson’s assertion that he had a reasonable basis to determine and that he did determine that there was a reasonable prospect of litigation in this case.

[25] Save and except for references to reserves, the CWMS notes are ordered to be produced in unredacted form up to and including September 22, 2009.

[26] All references to the independent adjuster in November of 2008, centered on him simply being a “liaison” between Mr. Matheson and Mr. Bako, at least for so long as Mr. Bako remained unrepresented; the report is dated shortly after Mr. Bako did retain counsel. Again, I see no support for any conclusion other than that his involvement was related directly to Mr. Matheson’s stated intention to settle the file before Mr. Bako retained counsel. The report is ordered produced.

Reasons for judgement were recently brought to my attention discussing the scope of powers of the Court at Case Planning Conferences. Specifically the Court found that Rule 5-3 does not provide the power to over-ride common law principles of privilege.

In the recent case (Galvon v. Hopkins) the Plaintiff was injured in a motor vehicle collision. She sued for damages. As the lawsuit progressed the Plaintiff did not provide any expert medico-legal evidence to the Defendant.

This concerned the Defendant who brought a Case Planning Conference and obtained an order requiring the Plaintiff to “notify counsel for the defendant of the name of the neurologist with whom the appointment had been made and the date of the appointment, and secondly, that the parties were to provide opposing counsel with written notice forthwith upon any appointment being set for the plaintiff with medical experts, such notice to include the name of the expert, the expertise of the expert, and the date of the appointment“.

The Plaintiff appealed arguing that the Court did not have jurisdiction to make such orders under the Rules of Court. Madam Justice Kloegman agreed and allowed the appeal. In doing so the Court provided the following reasons:

21. I agree with counsel for the plaintiff’s submission that Rule 5-3 cannot be read as to allow the Case Planning Conference Judge or Master to disregard the common law principle of privilege.

22. In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.

23. …She did not appear to consider that the object of the Rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.

24. By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, or warranted, I might add, by our Supreme Court Rules.

25. Having concluded that our Rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiciton to do so.

26. The appeal is allowed and Master Bouck’s orders will be set aside.

Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing the scope of litigation privilege when a Plaintiff attends an independent medical exam arranged on their behalf in the course of a personal injury lawsuit.

In this week’s case (Lanteigne v. Brkopac) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit the Plaintiff’s lawyer had her assessed by a neuropsychologist to explore the possibility of organic brain injury.  The Plaintiff’s lawyer chose not to order a report from the neuropsychologist following the assessment.

ICBC brought an application to compel the neuropsychologist to produce a copy of his clinical records of the assessment.  Master Taylor dismissed the application finding that the notes generated during Plaintiff arranged independent medical exams are subject to litigation privilege.  In addition to canvassing several cases addressing this area of law Master Taylor provided the following useful comments:

[15] On the other hand, the plaintiff says this is not a case where Rule 7-6(1) is applicable because the court did not make an order under this subrule for the plaintiff to attend to be examined by Dr. Coen. Rather, the plaintiff attended upon Dr. Coen by referral from her own counsel. Accordingly, says the plaintiff, what actually applies is the law of privilege, not Stainer v. Plaza.

[16] Thus, the issue is framed - can a defendant or third party who has not obtained a doctor’s report by compulsion of a court order, and prior to disclosure of any medical-legal reports by the plaintiff or in the absence of any reports, obtain access to the non-treating doctor’s notes and clinical findings, or are said notes and clinical records privileged as forming part of the brief of the plaintiff’s solicitor until the time when the plaintiff chooses to rely on the non-treating doctor as a witness at trial and the doctor’s notes must be disclosed…

[21] In my view it is improper to categorize the non-treating doctor or any other third party consultant retained on behalf of the plaintiff as a witness in which there is no property. The very fact that the plaintiff consulted with that physician or other individual during the course of litigation removes that individual from the “witness” category until such time as the plaintiff and counsel make a determination about whether or not that physician will be used as a witness at the trial, and preserves the right of privilege. The fact that the consulted doctor or other consultant never gives evidence preserves the privilege for all time unless waived by the plaintiff.

[22] While the defendant and third party submit they could have the plaintiff examined by their own doctor or proceed with an examination of the doctor pursuant to Rule 7-5, they complain that those alternatives are costly, and, accordingly, the court should assist them by ordering the records of Dr. Coen be produced and thus save them the cost of proceeding with the other alternatives. The defendant also submits that Rule 1-3 provides the court with sufficient justification to order Dr. Coen to provide his notes of the plaintiff’s examination.

[23] In my view, the defendant and third party have not shown any meritorious reason for abrogating the plaintiff’s litigation privilege related to the information obtained by Dr. Coen from the plaintiff as a result of the referral to Dr. Coen by the plaintiff’s solicitor. Nor, in my opinion, does Rule 1-3 provide justification for abrogating the privilege.

Given ICBC’s monopoly over vehicle insurance in BC they typically have to perform multiple roles following a collision including investigating the issue of fault in order to make internal decisions regarding the premium consequences for the customers involved in the crash.  Documents prepared during this ‘investigative‘ stage generally need to be produced during litigation and claims for litigation privilege will fail.  Reasons for judgement were released this week further demonstrating this fact.

In this week’s case (Fournier v. Stangroom) the Plaintiff was injured in a 2007 collision.  In the early days following the crash and well before litigation got underway ICBC retained an engineering firm to inspect the Plaintiff’s vehicle.  The engineering firm communicated their findings to ICBC.  In the course of the lawsuit the Defence lawyer commissioned an expert report from the same firm but did not exchange it with the Plaintiff’s lawyer.

The Plaintiff made the typical document disclosure demands from the Defendants.   These were not complied with in a satisfactory fashion resulting in a Court application.   The Defence lawyer argued that the full file from the engineering firm is subject to litigation privilege.  Master Caldwell disagreed and ultimately ordered better document disclosure inlcuding production of the engineering firms materials documenting their initial investigation.  In making this order Master Caldwell provided the following reasons:

[11] On August 9, 2007 the initial adjuster on the file requested MEA or one of their engineers to examine the plaintiff’s vehicle in order to determine whether the plaintiff was wearing his seatbelt at the time of the collision. The engineer did so, communicated with the adjuster the following day with questions and subsequently reported to the adjuster on September 13, 2007. That adjuster referred to that report as being sufficient for his purposes; the next adjuster, Ms. Madsen referred to the “verbal report” as being “sufficient for the purposes of handling the claim SHORT OF LITIGATION” (emphasis mine).

[12] In early 2011 defence counsel commissioned MEA to prepare an expert report, apparently regarding the seatbelt issue, for possible use at trial; he says that since such a report has now been requested, the engineer’s file material, notes and such are not producible unless and until the report is received and provided to plaintiff’s counsel 84 days before trial.

[13] In cases such as this one, the adjuster or adjusters have duties of investigation on behalf of both the plaintiff and the defendants; there must, almost of necessity, be an initial period of adjusting or investigating to discover the factual matrix within which the adjusters will perform their duties and assess the file and the claims or roles of the interested parties. Absent such period and process of investigation the adjuster can have no reasonable basis upon which to conclude that there is a reasonable prospect of litigation and that all or part of what is done from any given point in time forward is done for the dominant purpose of litigation. In this regard see Hamalainen (Committee of) v. Sippola (1991) 62 BCLR (2d) 254 (BCCA).

[14] These engineers were approached within the first 3 weeks following the collision, clearly within the period of initial investigation and was even seen by at least one of the adjusters as being used for purposes of handling the file short of litigation. The investigative material, notes, correspondence and other such recordings of the engineers were not created at a time when litigation was a reasonable prospect; neither were they created for the dominant purpose of litigation. The fact that counsel has now requested an expert report from MEA does nothing to change that any more than a request to a G.P. or plaintiff’s medical expert that he or she provide an expert report renders that practitioner’s clinical records privileged.

[15] The MEA investigative material, notes, correspondence and working papers which arose between August 9, 2007 and September 13, 2007 inclusive are not subject to a valid claim of litigation privilege; they are ordered to be listed and to be produced to plaintiff’s counsel within 14 days. If there are any other MEA materials which arose between September 14, 2007 and the date when defence counsel commissioned their expert report, those are to be listed with the required clarity, date and description in order that any further claim of litigation privilege can be properly assessed.

(Note: The Decision discussed below was overturned by the BC Court of Appeal on August 25, 2011)

As I’ve previously written, the Rules of Court require parties to a BC Supreme Court Civil Lawsuit to disclose relevant documents to opposing parties.  Some documents are privileged and need not be exchanged but their existence needs to be disclosed and these documents need to be described “in a manner that, without revealing informaiton that is privileged, will enabel other parties to assess the validity of the claim of privilege“.  Failure to do so can result in exclusion of the documents from trial.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.

In today’s case (Houston v. Kine) the Plaintiff was injured in a 2006 motor vehicle collision.  The Defendant admitted responsibility for the crash.  The Plaintiff sustained various  injuries including a major depressive disorder, pain disorder, anxiety disorder and PTSD following the collision.  Madam Justice Gropper found that the collision was responsible for these injuries and assessed the Plaintiff’s damages at $525,000.

There was a 5 month break from the beginning of the trial to its conclusion.  During this break ICBC undertook surveillance of the Plaintiff over two periods of time.  The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court.  When they attempted to put the video into evidence the Plaintiff objected.  Madam Justice Gropper sided with the Plaintiff and held that the evidence should not be admitted.  In reaching this conclusion the Court provided the following helpful reasons:

[11] The burden on the party seeking to tender the undisclosed document is to establish to the Court’s satisfaction a reasonable explanation for the failure to disclose. As Henderson J. stated inCarol v. Gabriel (1997), 14 C.P.C. (4th) 376, 75 A.C.W.S. (3d) 858:

[9]        A party tendering a previously undisclosed document must establish to the court’s satisfaction a justification for the failure to abide by Rule 26(14). The question of whether the opposite party will be prejudiced by the admission of the document is always relevant but is not, in and of itself, decisive. Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect any prejudice to result.

[12] Here, the explanation for the failure to disclose is that the videos are not documents and they were never in the defendants’ possession or control. Rather, these videos and the accompanying reports fall clearly within the solicitor’s brief.

[13] The defendants’ position that it is sufficient that the videos and background materials were disclosed in March 2010, before the recommencement of the trial does not address the requirement of the Rule in 23(13) that the disclosure be “forthwith.” Not disclosing, as a matter of strategy, is not a satisfactory explanation to address the “forthwith” requirement.

[14] It is therefore my view that the videos have not been disclosed in accordance with R. 26(13) and I must therefore consider whether I ought to exercise my discretion to allow the Mexico video into evidence in accordance with R. 26(14).

[15] The factors to be considered are described by the Court of Appeal in Stone v. Ellerman, 2009 BCCA 294; 273 B.C.A.C. 126; [2009] 9 W.W.R. 385; 71 C.P.C. (6th) 25; 92 B.C.L.R. (4th) 203; 2009 CarswellBC 1633, at paras. 30 and 31. They are:

1.         prejudice to the party, in this case the plaintiff;

2.         whether there was a reasonable explanation for the other party’s failure to disclose;

3.         whether excluding the document would prevent a determination of the issue on the merits; and

4.         whether in the circumstances of the case the ends of justice require that the document be admitted.

[16] Addressing the prejudice to the plaintiff, it is difficult for me to assess the prejudice versus the probative value issue as I have not seen the videos and I have not reviewed the investigators’ notes of the video. I note in addressing this factor that there were hours of video recorded and the defendants’ counsel has provided a summary of what is contained in the videos. Based upon that, I am not satisfied that the videos are sufficiently probative to outweigh the prejudice to the plaintiff in allowing their admission having not been disclosed forthwith on a supplementary list of documents. This is despite the assertion that the plaintiff “lived” the events and that she would not be surprised by the contents. She has given evidence and called her medical and functional capacity experts. The late disclosure of the video evidence has impaired the ability of the plaintiff to meet the evidence.

[17] The admission of the videos and notes may require that she be recalled, or that she recall some of the experts. These days were added to the trial for its conclusion. The admission of the video evidence will necessarily extend the trial.

[18] In relation to the second factor, whether or not there was a reasonable explanation for the parties’ failure to disclose, I have already determined that strategy does not provide a reasonable explanation for lack of disclosure. Rule 26(13) requires that supplementary documents are to be disclosed forthwith and they were not.

[19] Concerning the third factor, whether the document would prevent the determination of the issue on the merits, I have heard evidence including the plaintiff’s evidence and the defendants’ evidence and expert evidence about the plaintiff’s activity and her level of disability. Based on the summary provided by counsel for the defendants of the contents of the video I cannot conclude that I will be prevented from determining the issue on the merits.

[20] Finally, I am not persuaded that the ends of justice require that videos be admitted.

[21] I therefore find that the videos are not admissible.

Interestingly, Madam Justice Gropper went even further and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence.  The Court’s reasoning behind this decision could be found at paragraphs 22-28 of Appendix A to the Reasons for Judgement.

Two decisions were released this week by the BC Supreme Court dealing with the issue of litigation privilege in BC personal injury lawsuits.  The first case stressed the importance of lawyers properly identifying and listing documents, the second dealt with evidence gathered by an insurance company during the “investigative stage” following a motor vehicle collision.

In the first case (Craig v. Smith) the Plaintiff was injured in a 2006 motor vehicle collision.   The Defendant claimed privilege over various documents and the Plaintiff brought a motion to produce these.   The parties worked out many of their respective differences before the Court gave judgment but prior to resolving the issues Master Caldwell gave the following guidance stressing the importance of lawyers properly disclosing relevant documents:

[5] It is counsel’s duty to determine relevance and claims of privilege; see G.W.L. Properties Ltd. v. W.R Grace & Co., [1992] B.C.J. No. 2387. There is an obligation to describe documents in sufficient detail to enable other parties to assess the validity of the claim of litigation privilege; see Hetherington v. Loo et al, 2007 BCSC 129 and Nanaimo Shipyard Ltd. v. Keith et al, 2007 BCSC 9. The dominant purpose test is still the appropriate test to be applied in determining litigation privilege but is “more compatible with the contemporary trend favouring increased …mutual and reciprocal disclosure which is the hallmark of the judicial process”; see Blank v. Canada (Minister of Justice), 2006 SCC 39.  This is all well settled law.

In the second case (Pshelensky v. Dion) the Plaintiff was involved in a 2006 collision.  Within a week of the crash the Plaintiff hired a personal injury lawyer to represent her.  Shortly after this the Defendant’s insurance company obtained a statement from the Defendant and witnesses to the crash.  After the lawsuit started the Defendant refused to produce a copy of the statement arguing that since the Plaintiff hired a lawyer a lawsuit was reasonably contemplated when the statements were taken and they were protected by ”litigation privilege“.

Master Taylor disagreed and ordered that the Defendant produce the statements. In doing so the Court provided the following reasons:

[18]         I take the view that the two statements taken from the driver and passenger of the defendant motor vehicle were essentially taken to determine the cause of the accident and, of course, to determine who might be at fault.

[19]         In my view the defendants rely upon the fact that the plaintiff retained counsel early on in these proceedings or shortly after the accident to suggest that litigation was contemplated.  I do not agree with this proposition for in my view it was far too early in the proceedings to make a final determination as to whether or not litigation would be inevitable.

[20]         I further take the view that the statements taken from Badr and Dion were so close to the time of the accident that they were very early in the continuum before the dominant purpose became one of furthering the course of litigation.  Accordingly I find that both statements are not privileged and should be released to the plaintiff applicant.

This is just one in a series of recent cases making it clear that when an insurance company is investigating why a crash happened it will be very difficult to keep statements from the Plaintiff in a subsequent lawsuit.  You can click here to read my archived posts further dealing with the issue of litigation privilege in the context of BC personal injury lawsuits.

As I’ve previously written, litigation privilege is a principle which allows parties in a law suit to keep evidence from the other side.  In order to successfully take advantage of litigation privilege the document not only has to have been created in the reasonable contemplation of a lawsuit but also for the ‘dominant purpose‘ of use in such a lawsuit.

If a document was made for multiple reasons (ie - investigating a potential claim and defending against a potential claim) the law will likely require disclosure.  Today the BC Court of Appeal released useful reasons summarizing this area of law.

In today’s case (Mathew v. Delta School District #37) the Plaintiff ’slipped and fell on some ice at a school’.  Shortly after the incident the school’s principal, a teaching assistant and a custodian made notes documenting what occurred.  The Plaintiff started a lawsuit and asked for these.  The Defendant refused to produce these claiming they were privileged.  The dispute made it all the way to the BC Court of Appeal who found that the documents were not privileged as they were made during the ‘investigatory stage‘.  The BC High Court provided the following very useful reasons:

[11] The investigatory stage to which the master referred is well recognized in the authorities. In Hamalainen at para. 24, the following was quoted from a speech in Waugh v. British Railways Board, [1980] A.C. 521 at 541, attributing it to what Lord Denning had said in that case:

If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.

[12]         The investigatory stage was discussed in Hamalainen as follows:

[26]      Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[13]         It was, on the evidence, open to the master to regard the notes as being made in the investigatory stage as opposed to the later litigation stage. They were made directly following Mr. Mathew’s accident. I recognize it may be argued that, in the circumstances, there was little in the way of an investigatory stage here. But that is a matter to be determined on the peculiar facts of each case and I am unable to accept that the evidence foreclosed the significance the master appears to have attached to the notes being made as quickly as they were in relation to the incident.