ICBC Law

Further to my previous posts on Litigation Privilege in British Columbia, reasons for judgement were released today adding further clarity to this area of the law.

In today’s case (Shooting Star Amusements Ltd. v. Prince George Agricultural and Historical Association) the Plaintiff brought an application for the production of certain documents which the Defendant refused to produce on the grounds of Litigation Privilege.   Madam Justice Bruce ordered that the documents be produced.  The Defendant appealed.  In dismissing the appeal the BC Court of Appeal made it clear that when asserting a claim for privilege the party must offer evidence in support of this claim.  Specifically the Court held that:

it is only common sense that where a claim of privilege is contested, a court would normally require something more than counsel’s opinion offered in the course of argument.  As Mr. Cassie argued on behalf of the plaintiff, it has been clear at least since this court decidedHamalainen (Committee of) v. Sippola (1991) 62 B.C.L.R. (2d) 254, 3 C.P.C. (3d) 297 that the party asserting privilege in respect of a document bears the onus of establishing the privilege.

The defendant argued that the order for production would cause irreparable harm because the materials ordered to be disclosed would provide details of settlement discussions and legal advice.  The Court noted that such evidence was not before the trial judge.  Interestingly, the court stated that just because a claim for litigation privilege fails in a document production application the party is free to raise the claim again at trial and the trial judge will need to consider whether the documents can stay out of evidence for grounds privilege.  Specifically Madam Justice Newbury stated

I note that although the defendant was ordered to disclose the minutes, unredacted, to the plaintiff, this does not mean they, or the information they contain, will be admissible at trial.  A claim of privilege can still be asserted by the defendants if and when the plaintiff seeks to introduce the minutes into evidence and it will be for the trial judge to determine whether any kind of privilege does indeed attach.

Useful reasons for judgement were released today by the BC Supreme Court dealing with the records that need to be disclosed to opposing counsel following an Independent Medico-Legal Exam.

In today’s case (Gulamani v. Chandra) the Plaintiff was involved in 2 motor vehicle accidents approximately one decade apart. In the course of the lawsuits she attended various medico-legal appointments at the request of the Defence Lawyers under Rule 30 of the BC Supreme Court Rules.

Following these the Plaintiff’s lawyer brought an application that  these doctors deliver “copies of their examining notes or any other recording generated by or on behalf of the said doctors that record any history given to them by the plaintiff on the examination, and any notes that record the doctor’s observations or findings on physical examination together with copies of any tests, questionnaires, or other documents completed by or on behalf of the plaintiff including scoring documents prepared by the examiner“.

The Defence lawyers opposed this motion and argued that the sought materials “constitute the doctors’ working papers and underlying materials that are privileged and part of the solicitor’s brief until the doctor testifies in court, at which point the privilege is waived. ”

Madam Justice Arnold-Bailey rejected the defence position and noted that “solicitor’s brief privilege can be trumped when it comes to the bare facts” and that “there is no property in a witness of fact”.  In ordering production of the sought records the Court extensively canvassed the law in this area and summarized its position as follows:

[24]         Stainer and Traynor clearly indicate that any notes, annotations, recordings, or working papers that reveal an examining doctor’s confidential opinion or advice to counsel will, generally, be privileged.  Even things as small as question marks or exclamation marks added to raw test data could fall into this category and would potentially need to be redacted:Traynor, at para. 21.

[25]         However, the cases also illustrate that notes or recordings that capture the factual history given by the plaintiff to an examining doctor, as well as raw test data and results, are outside the scope of solicitor-client privilege and are subject to production.  I agree with the conclusion reached by the learned master in McLeod as one that follows these basic principles and extends them to circumstances outside the scope of a Rule 30 order. General principles are indeed just that - general principles - and not principles that are only to be applied in making a Rule 30 order or only to be applied when such an order is made.  As Master Caldwell opined in McLeod, the timing of the request for disclosure and whether a court order triggered the examination are factors which do not override the application of Rule 1(5) and the court’s role to “secure the just, speedy and inexpensive determination of every proceeding on its merits”.  I share this view.

[26]         I do not disagree with the submission by counsel for the Chandra defendants, in line with S. & K. Processors and Vancouver Community College, that an expert’s working papers remain privileged until that expert takes the witness stand.  As I understand the jurisprudence, however, there is a clear distinction between an expert’s working papers, which contain opinions, or which may be prepared for the sole purpose of advising counsel, and the facts underlying those opinions or advice.  In the case at bar, the plaintiff is not asking for the type of documents that were at issue in those cases, and those cases reaffirm that the factual material the plaintiff seeks is indeed subject to production.

[27]         The Sutherland case is perhaps, at first blush, most problematic for the plaintiff, in that it appears to imply that the only factual material requiring disclosure will be that which is not already adequately set out in the written statement accompanying the expert report (in the context of Rule 40A).  As I have indicated above, however, upon further analysis I do not believe the case stands for this point.  The court in Sutherland could not find that giving notice under Rule 40A meant that everything underlying the report was suddenly subject to production before the witness took the stand, because a pre-existing privilege existed over the documents, and was not entirely waived simply by virtue of giving notice under Rule 40A.  The court therefore only ordered production of the raw data from among the requested general “rubric of clinical records” – material that was clearly factual in nature and did not involve opinion or advice.

[28]         On that note, the question that may remain after reviewing many of these cases is whether, prior to notice being given under Rule 40A, there is any privilege over the examining doctors’ materials, specifically over anything factual in nature reported by the client and not involving opinion or advice.

[29]         I am of the view that this is not so in the circumstances of the case at bar.  The passages from Stainer cited above reaffirm that even the solicitors’ brief privilege can be trumped when it comes to the bare facts, since it is well settled that “there can be no property in a witness of fact”.  Further, regardless of the way any of the cases cited in these reasons unfolded, including applications under Rule 30, outside of Rule 30, under Rule 26, pursuant to Rule 40A, and under s. 11 of the Evidence Act, and both before a report has been put into evidence and before a report has even been created, I fail to see any examples where a court has declined to order production of the factual underpinnings of an expert’s report, as reported by the plaintiff and recorded in notes, annotations and test data.

[30]         The facts of the present matter are also such that it is the plaintiff who has applied for the information in question, and it was of course the plaintiff herself who provided that information and raw data to the doctors in question.  Further, as I appreciate the circumstances of the present application, it is the non-party doctors who have the information in their hands, and not counsel for the Chandra defendants, who presumably have not been privy to the underpinnings of the reports.  As such, I fail to see how, in these circumstances, there is any doctor-client privilege or solicitor-client privilege to assert, or any strong argument to be made about non-party rights in the context of Rule 26(11)…

[36] In conclusion on this issue, I therefore order that the defendants and Doctors Hawkins, Hepburn, Weeks, Magrega, and Munro deliver to the solicitor for the plaintiff copies of their examining notes or any other recording generated by or on behalf of said doctors that records any history given to them by the plaintiff on the examination and any notes that record the doctor’s observations or findings on physical examination together with copies of any tests, questionnaires, or other documents completed by or on behalf of the plaintiff, including scoring documents prepared by the examiner, except any documents containing the doctors’ opinions or advice, within 14 days of the pronouncement of this order.

In addition to the above, the Plaintiff’s lawyer also brought a motion for production of records documenting the extent of MSP Billings that one of the Defence Doctor’s had with respect to Thoracic Outlet Syndrome. In partially granting this order Madam Justice Arnold-Bailey held as follows with respect to the relevance of such a request:

[44] I agree with plaintiff’s counsel’s that the expertise of Dr. Munro is an issue, albeit ancillary, to this matter and that the information has been properly sought pursuant to Rule 26(11).  The information sought is relevant because, to use the wording in Peruvian Guano, it may allow the requesting party to damage the case of its adversary.  After all, to properly cross-examine Dr. Munro on his qualifications at trial will require counsel to be prepared with the relevant information to be able to do so, and as I understand it, acquiring the information at that later stage would interrupt the trial given the time it takes to receive it from Health Services.  To be clear, I find that Dr. Munro’s opinion and expertise is important as it relates to the plaintiff’s injury claims, particularly because it conflicts with the opinion of another medical expert.

In BC Lawsuits one of the primary goals of the Rules of Court is to require document disclosure to put the parties on a level playing field with respect to the facts and to prevent trial by ambush.

Disclosure requirements, however, need to compete with the equally compelling doctrine of privilege which permits parties to lawsuits the right to refuse production of certain classes of otherwise relevant documents. Two categories of privileged documents which are not always clearly understood by litigants are those of ‘solicitor client privilege‘ and ‘litigation privilege’.

Today the BC Supreme Court released reasons for judgement explaining the difference between these classes of privileged documents.

In today’s case (Lougheed Estate v. Wilson) the Plaintiff sought access to certain documents which the Defendant refused to produce on the basis on litigation privilege.  In ordering that the documents be produced Mr. Justice Grauer did a great job in explaining the difference between solicitor-client and litigation privilege.  I reproduce this summary below:

(b) Solicitor-client privilege

[26] Solicitor-client privilege, or “legal advice privilege”, is conceptually different from litigation privilege.  One of the important differences is that solicitor-client privilege applies only to confidential communications between the client and his or her solicitor: Blank v. Canada, [2006] S.C.R. 319, 2006 SCC 39 at para. 28, citing with approval Professor R.J. Sharpe (now Sharpe, J.A.):  “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65.

[27] The documents over which Mr. Wilson asserts privilege that are at issue before me consist solely of correspondence between Mr. Wilson’s solicitor and counsel for Elections Canada.  They do not consist of confidential communications between Mr. Wilson and his solicitor.  Accordingly, I find that they are not eligible for the protection of solicitor-client privilege.

(c) Litigation privilege

[28] The nature of litigation privilege was thoroughly discussed by the Supreme Court of Canada in the Blank case, where Fish J. quoted further from Prof. Sharpe’s article as follows (loc. cit. supra):

Litigation privilege, on the other hand, is geared directly to the process of litigation.  Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege.  Its purpose is more particularly related to the needs of the adversarial trial process.  Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocate.  In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect the relationship (namely, the confidential relationship between a lawyer and the client).

[29] Fish J. then went on to explore the limits of the privilege:

34        The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation.  Once the litigation has ended, the privilege to which it gave rise has lost his specific and concrete purpose – and therefore its justification.  But to borrow a phrase, the litigation is not over until it is over.  It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.

35        Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield….

36        I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common-law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege [citations omitted].

37        Thus, the principal “once privileged always privileged”, so vital to the solicitor-client privilege, is foreign to the litigation privilege.  The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.

38        As mentioned earlier, however, the privilege may retain its purpose – and, therefore, its effect – where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended….

39        At a minimum, it seems to me, this enlarged definition of “litigation” includes separate proceedings that involve the same or related parties and arise from the same or related cause of action (or “juridical source”).  Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify as well.

40        As a matter of principle, the boundaries of this extended meaning of “litigation” are limited by the purpose for which litigation privilege is granted, namely, as mentioned, “the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocates” (Sharpe, at p. 165).

It is common for lawyers involved in personal injury claims to retain the services of expert witnesses.  The most common expert witnesses are medical doctors but often engineers, economists, and other specialists are brought into the fray.

Experts are typically retained to be involved in two common roles.  The first role is to provide expert opinions to assist the judge or jury to understand the evidence called at trial.  The second is to assist counsel in preparing the case for trial.  When experts are retained to assist counsel to prepare for trial the communications between the expert and the lawyer are confidential and subject to litigation privilege.

When an expert takes the stand and gives opinion evidence they are subject to a cross-examination that is quite wide in scope.  Does this permit the opposing side to ask questions about the confidential opinions and advice the expert gave the lawyer that retained him prior to trial?  Not necessarily.  Reasons for judgement were transcribed today by the BC Supreme Court, Vancouver Registry, dealing with this issue.

In today’s case (McLaren v. Rice) the Defendants to a car accident claim hired an engineer who was qualified to give expert opinion evidence regarding accident reconstruction and speed and speed changes.  During cross examination the lawyer for the Plaintiff asked whether the defence lawyer sought his opinion with respect to a vehicle’s tie-rod and ball-joint assembly.  The Defence lawyer objected to the question claiming it addressed matters that were protected by litigation privilege.  Mr. Justice Brooke upheld the objection and in doing so summarized and applied the law as follows:

[4] In the recent decision of Madam Justice Satanove in Lax Kw’alaams, 2007 BCSC 909, the nature and extent of litigation privilege was considered.  At paragraph 9, Justice Satanove referred to the decision in Delgamuukw where it was said that litigation privilege was waived when the expert witness was called, but that that waiver was to be narrowly construed and privilege maintained when it was fair to do so.

[5] In Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R. (2d) at 289 (S.C.), Justice Finch, as he then was, recognized that even where an expert is called as a witness he may remain a confidential advisor to the party who called him at least in regard to advising on cross-examination of the other side’s witnesses, including the other side’s expert witnesses.

[6] In Lax Kw’alaams as well as in Barratt, the issue was the production and cross-examination on documents that had been prepared by the witness.  As I understand it, here all privileged documents are set out in part 3 of the document disclosure of the defendant and there is no suggestion that there are undisclosed documents.

[7] What the plaintiff wishes to cross-examine upon is not documents, but oral advice or opinions or commentary concerning the tie-rod assembly and ball joint, an area which the report of Mr. Brown does not pretend to address.

[8] I find, if Mr. Brown was asked questions out of court regarding the tie-rod and ball-joint assembly it was to assist the defendant in its defence of the plaintiff’s claim and specifically the allegation that the collapse of the tie-rod and ball-joint assembly caused the accident in which the plaintiff sustained devastating injuries.

[9] In my opinion, it would not be fair to require Mr. Brown to answer questions directed to matters outside the scope of his report because it could give the plaintiff an advantage not available to the defendant.  Here I refer to paragraph 29 of Barratt.  Moreover, to permit such cross-examination would cast a chill over the ability of counsel for both plaintiffs and defendants to properly prepare their client’s case and also to answer the other party’s case.  In the result, the objection of the defendant is sustained.

I’ve written previously on BC Personal Injury Claims and Litigation Privilege and today reasons for judgment were released by the BC Supreme Court further considering this topic.

In today’s case (Semkiw v. Wilkosz) the Plaintiff was the widow of a person who was allegedly killed as a pedestrian in a serious motor vehicle collision in Vernon, BC in 2006.

The driver of the allegedly offending vehicle was operating a vehicle owned by U-Haul Co. (Canada) at the time of the crash.  Following the crash the driver gave a statement to a a “U-Haul adjuster” and subsequent to this she showed a copy of this statement to a lawyer that she consulted with and to the RCMP in Calgary.

The Plaintiff’s lawyer asked for a copy of this statement and the Defendants lawyer in the injury lawsuit refused to produce it claiming that it was subject to litigation privilege.

The Plaintiff also asked for a copy optometrists records relating to the eyesight of the alleged driver and lastly asked for photographs and measurements of the van allegedly involved in this collision taken by a professional engineer instructed by U-Haul.  Production of these materials was also opposed on the basis of litigation privilege.

In rejecting the claim for privilege Mr. Justice Rogers of the BC Supreme Court summarize and applied the law as follows with respect to the statement to the insurance adjuster (so that the following excerpt makes sense Ms. Aisler is the ‘U-Haul adjuster’ and Ms. Wilkosz is the alleged driver):

[12]            It is evident from this list that Ms. Aisler had several goals in mind when she asked Ms. Wilkosz to give her statement.  The current litigation is not clearly dominant among them.  In fact, it appears that Ms. Aisler was as concerned about whether Ms. Wilkosz would ask for payment of no‑fault accident benefits as she was about instructing some lawyer that U‑Haul might eventually retain or preparing for litigation being advanced by the third party to the accident.  I cannot, on Ms. Aisler’s evidence relating to the purposes for which the Wilkosz statement was obtained, conclude that this litigation was the dominant reason for getting it.

[13]            Further, what a party actually does with a document and how it treats that document before its production is demanded can sometimes be as good an indicator of privilege as anything that the party may decide to assert after that demand is made.  In this case, Ms. Wilkosz’s interaction with the police officer in Calgary clearly demonstrates that U‑Haul was quite content for her to have and keep and distribute a copy of her statement to whomever she chose.  Ms. Wilkosz was not, apparently, under any instruction from U‑Haul to not show the statement to other persons.  If she was under such instruction, one would have thought that U‑Haul would have adduced evidence of such in this application, but it did not.  Furthermore, Ms. Wilkosz made it clear that she had shown her statement to her lawyer Mr. Yuzda.  If Ms. Aisley had truly obtained that statement in order to protect U‑Haul from, among other things, Ms. Wilkosz’s claims for accident benefits it is unlikely in the extreme that Ms. Aisley would have allowed Ms. Wilkosz to take the statement off to show to a lawyer who might well advise her on how to successfully prosecute such a claim.

[14]            In my opinion, the fact that U‑Haul gave a copy of the statement to Ms. Wilkosz and that it did not restrict her use of that statement demonstrates that U‑Haul’s dominant purpose in obtaining the statement was not to instruct its own counsel with respect to the accident.  If that had been U‑Haul’s dominant purpose, common sense dictates that U‑Haul would have kept the statement to itself, or if it let Ms. Wilkosz have a copy it would have done so after giving her very strict instructions limiting her dissemination of it.

[15]            The defendants’ claim of litigation privilege over the Wilkosz statement must fail.  Because the defendant has chosen to assert a single basis for its claim of privilege for all of its documents, the failure of its claim with respect to that one document means that its claims for all of the documents must likewise fail.  The defendants will be required to give production of all of the documents pre‑dating September 21, 2007 and for which they claimed privilege in Part III of their supplemental list of documents.  It follows that Ms. Wilkosz need not give evidence in her examination for discovery concerning the circumstances in which she gave her statement to U‑Haul.

With respect to the optometrists records:

[16]            Ms. Wilkosz’s visual acuity is obviously an issue in this case.  She has filed no material to suggest that records relating to her eyesight contain any embarrassing, sensitive, or confidential information that is not relevant to these proceedings.  She has not, therefore, met the criteria for insisting that these records be sent first to her counsel for review.  The plaintiff is, therefore, entitled to receive the records directly from the professionals involved in Ms. Wilkosz’s eye care.  Plaintiff’s counsel has offered her undertaking to deliver those records to defence counsel immediately upon receipt.  Defence counsel has, for no good reason I can discern, been reluctant to accept that undertaking.  In the result there will be an order that defence counsel accept the undertaking.  There will be an order that Ms. Wilkosz sign authorizations for release of her eye care records and delivery of those records to plaintiff’s counsel.  She must sign those authorizations and see that they are delivered to plaintiff’s counsel within seven days of the release of these reasons.  Defence counsel will deliver the signed authorizations to plaintiff’s counsel immediately upon receipt.

and lastly with respect to the engineers materials:

[18]            Ms. Aisley’s affidavit does not describe Mr. Gough’s involvement in the case beyond saying that she understood that he was to provide expert advice and that he took a look at the U‑Haul van and tried to look at another vehicle involved but was rebuffed by its owner.  Mr. Gough’s affidavit describes his activities concerning the U‑Haul van and the site, but does not illuminate his purpose.  Specifically, Mr. Gough does not assert that he examined the van and the site for the purpose of preparing an expert report or for the purpose of assisting counsel in preparing for this or any other litigation.  On Mr. Gough’s evidence, the most that I can conclude is that U‑Haul asked him to have a look at the van and the accident scene and to record his observations.  There are no grounds on which U‑Haul can claim that Mr. Gough’s work is protected by privilege.

[19]            Mr. Gough’s observations are, of course, relevant to issues raised in the lawsuit.  The plaintiff has asked Mr. Gough to produce the records of his observations but he has refused.  This is a proper circumstance for an order under Rule 26(11) that Mr. Gough deliver to all parties of record a copy of all photographs and records in his possession relating to his examination of the U‑Haul van and of the accident scene.

When advancing an ICBC Injury Claim ICBC can typically arrange an ‘independent medical exam’ to assess your injuries.   This is usually done either through the power given to ICBC under the Insurance (Vehicle) Regulation or pursuant to Rule 30 of the Supreme Court Rules.

When ICBC sends you to a doctor for an ‘indpendent’ examination the physician usually takes notes and often authors a report summarizing his/her opinion of collision related injuries.  Normally ICBC Injury Claims Lawyers negotiate the terms of these examinations to permit their client to have access to the medical examiners notes.

What if these terms are not discussed prior to the exam, are you entitled to have access to the notes that ICBC’s doctor generates as a result of the visit or can ICBC claim litigation privilege over these notes?

Reasons for judgement were released today (McLeod v. Doorn) dealing with this issue.  In today’s case ICBC arranged to have the Plaintiff examined by a physician.   The Plaintiff did not negotiate what access she would have to the physicians records when she agreed to this assessment.  After the exam the Plaintiff sought access to the doctor’s clinical records and ICBC refused to provide these on the basis that the notes were protected by litigation privilege.

The Plaintiff brought an application in Court to be granted access to these records and in granting the application Master Caldwell summarized and applied the law as follows:

[4] I have considered counsel’s submissions extensively; however, I am consistently drawn back to paras. 12 and 13 of the reasons of Finch J.A. (as he then was) in Stainer v. Plaza, [2001] B.C.J. No. 4:

In my respectful opinion this condition is too broadly expressed.  Some reports prepared by or for a doctor performing an independent medical examination may not be protected by a solicitor’s brief privilege.  Ever since Milburn v. Phillips (1963), 44 W.W.R. 637 (B.C.S.C.) our courts have recognized that statements made by a plaintiff to a doctor conducting an independent medical examination under compulsion of court order may be ordered to be communicated to the plaintiff’s solicitor.  And, insofar as the examining doctor makes observations or findings on physical examination, he becomes to that extent a potential witness as to matters of fact.  That there can be no property in a witness of fact is well settled: Harmony Shipping Co. S.A. v. Davis.[1979] 3 All ER (C.A.).

It therefore appears to me to be within the proper exercise of the discretion afforded under Rule 30 to impose, as a condition of ordering an independent medical examination, delivery up to a plaintiff of the examining doctor’s notes that record any history given to him by the plaintiff on the examination, and any notes that record the doctor’s observations or findings on physical examination.  It would not usually, however, be fair to go further, and to require the defendant or third party to disclose any documents prepared by the doctor which contain his confidential opinions or advice to the lawyer who requested the examination, whether for the purposes of trial preparation, cross-examination at trial, or otherwise.

[5] Defence counsel points out that there was no order made under Rule 30 and, therefore, this reasoning does not apply; however, because the plaintiff agreed to go without an order, she is stuck.  I fail to see how that can be correct.  Rule 1(5) states that the object of the Rules is to “secure the just, speedy and inexpensive determination of every proceeding on its merits”.  Requiring a court order in the circumstances of this case hardly fits with such intention.

[6] I am of the view that the notes that record any history given to Dr. Piper and Mr. Kerr by the plaintiff at the examinations and any notes of those two professionals which record their observations or finding on physical examination, including raw test data, are to be produced to plaintiff’s counsel in the manner outlined in para. 4 of the proposed order.

What kind of disclosure are you entitled to from the police if you are injured in a BC Car Accident that resulted from a criminal act?  For example, say you were injured by a drunk driver or someone fleeing from the police.  Are you entitled to the police departments records documenting their investigation in your ICBC claim or do you have to wait until criminal charges are finally dealt with?  Reasons for judgement were released today dealing with this issue.

In this case the Plaintiff was killed in a motor vehicle accident.  Charges were brought against the alleged operator of the vehicle alleging criminal negligence causing death.  In the ICBC claim the identity of the Defendant driver was put in issue.  The Plaintiff’s estate brought a motion seeking production of the Vancouver Police Departments documents concerning this accident.  The Attorney General, on behalf of the VPD,  opposed this motion.  Mr. Justice Pitfield ordered that the documents be disclosed finding that ‘the accused’ should not be in a better position with respect to the police evidence (such evidence typically gets disclosed to the accused as part of the criminal disclosure process) than the Plaintiff.  His key analysis can be found at paragraphs 43-47 of the judgment which I reproduce below:

[43]            The issue in the present application then is whether the actual or implied undertaking to refrain from using Crown disclosure documentation for any purpose other than making full answer and defence should be modified to permit disclosure to a plaintiff in a related civil action in which the accused is a defendant.  A number of factors must be considered:

1.         As with any request for production, the requested documentation or the information that may be derived from it, must relate to an issue in the proceeding in which use of the documentation is intended.

2.         The information likely to be obtained from the documentation must not be available from other sources, thereby necessitating production.

3.         The public interest in ensuring the conduct of a prosecution in a manner that is fair from the perspective of both the Crown and the defence must be balanced against the private interest of ensuring the capacity of a plaintiff to advance a bona fide and meritorious claim in a civil action.  In other words, the balance of convenience must favour disclosure.  As the Ontario Court of Appeal said in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, [2004] O.J. No. 2053, at para. 53:

53.       …Society has an interest in seeing that justice is done in civil cases as well as criminal cases, and generally speaking that will occur when the parties have the opportunity to put all relevant evidence before the court.  The Crown disclosure may be helpful to the parties in ensuring that they secure all relevant evidence.

[44]            The court may be required to engage in a screening process conducted with the participation of Crown, police and defence in order to identify the documentation that must be produced and to ensure that the preconditions to production have been satisfied.  The screening process will only be avoided in the event that consent to production is forthcoming.

[45]            I am persuaded by the affidavit evidence that documents in the VPD file that may afford evidence of, or point to the source of evidence regarding, the operator of the vehicle involved in Mr. Wong’s death and its manner of operation, are relevant and material in so far as the family compensation action is concerned.  I am also satisfied that the evidence cannot be obtained by the plaintiff from other sources available to him.  The plaintiff does not possess any of the investigative tools that were likely employed by the VPD in its attempts to identify the driver.

[46]            The remaining question is whether the balancing of the public and private interests should result in production of the relevant documents at this point in time.  The Crown has tendered affidavit evidence suggesting that the criminal prosecution might be jeopardized by disclosure of any documents to the plaintiff because the material might find its way to potential witnesses, to the jury pool, or to persons who could seek to subvert the course of justice.  While the affidavit evidence contains general statements of possible adverse effects resulting from premature disclosure, it does not identify any specific concerns in the context of the Antunes prosecution.  Moreover, the possibility of any adverse effect can be materially reduced, or eliminated, by an appropriate undertaking from counsel and the plaintiff in the civil action.

[47]            In sum, I can see no reason why, in the circumstances, the accused should be in a position to know of the police evidence or sources of evidence pertaining to the identity of the driver and the allegation of negligent operation of a motor vehicle, but the plaintiff who sues on behalf of the victim of the operator’s negligence should not.  

Reasons for judgement were released today by the BC Supreme Court ordering the production of certain documents that the defendants claimed were exempt from disclosure due to ‘litigation privilege.’

The Plaintiff suffered severe head injuries when struck as a pedestrian in 2006.   In the course of her lawsuit her lawyer served the defendants with a Demand for Discovery of Documents.  In exchanging their List of Documents the Defendants claimed ‘litigation privilege’ over some of the documents.  The Plaintiff brought motion to compel production of these documents and largely succeeded with the court holding that:

the defendants failed to provide sufficient information to enable the plaintiff to assess whether the defendants were correctly claiming litigation privilege over each of the documents found in P3 to P9 of their list of documents.

In reaching this conclusion Mr. Justice Blair provided a great overview of the legal principles relating to a claim of litigation privilege which I reproduce below:

[5]                Litigation privilege extends to those documents prepared for the dominant purpose of preparing for ongoing or reasonably anticipated litigation as discussed in Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614; 2 W.W.R. 132; 9 B.C.A.C. 254; 62 B.C.L.R. (2d) 254.  Wood J.A. (as he then was) for the Court of Appeal stated at ¶18 that the two following factual findings required answering to determine whether litigation privilege applied to a document:

(a)        Was litigation in reasonable prospect at the time the document was produced, and

(b)        If so, what was the dominant purpose for the document’s production?

[6]                Wood J.A. held that the onus is on the party claiming privilege to establish on a balance of probabilities that both tests are met in connection each of the documents for which the party claimed litigation privilege.  With respect to the first factual finding, Wood J.A. wrote at ¶20 that

. . . litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet.

[7]                With respect to the second factual finding Wood J.A. wrote:

21.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

22.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p.541 of the report:

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.

23.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

24.       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.

[8]                The dominant purpose test in the context of litigation privilege came before the Supreme Court of Canada in Blank v. Canada, 2006 SCC 39.  Fish J. for the majority noted at ¶60 that the dominant purposes standard was consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure.

Reasons for judgment were released today by the BC Court of Appeal dealing with the timing of disclosure of non-privileged video surveillance of a Plaintiff involved in a tort claim.

In this case the Plaintiff sued for damages as a result of 2 motor vehicle collisions.  The Defendants insurer retained a private investigator to conduct surveillance of the Plaintiff.

In the course of the lawsuit the Plaintiff triggered Rule 26 (which, when complied with, requires the opposing party to provide a list of documents relevant to the action).  The Defendants listed the video surveillance as non-privileged but refused to produce the tape of the Plaintiff until after her examination for discovery claiming that Rule 26(1.2) permits them to delay production of this document because the credibility of the Plaintiff was a central issue of this claim and if the supposedly damaging tape was disclosed prior to discovery that would somehow compromise the defendants ability to examine her for discovery. 

The Plaintiff applied to court for production of the tape and succeeded.  The Defendants took the case up to the Court of Appeal.

The Court of Appeal dismissed the appeal and gave the following insightful reasons discussing the intent of Rule 26(2.1)

[22]            Generally speaking, the burden of proof is on the party making an application.  That burden is to the standard of a balance of probabilities.  I see no principled reason why an application under R. 26(1.2) should be treated any differently.   In this case, the appellants are the applicants seeking a postponement of production of the Investigative Report.  In my view, they have the burden of establishing the grounds for such an order on a balance of probabilities.

[23]            Both sides contend that Blank, the seminal decision on the scope of the exemption for litigation privilege, supports their respective positions that the trend in disclosure of documents favours broadening (the appellants) or restricting (the respondent) of the exemption.  With respect, I do not find these submissions offer assistance in this appeal.  The circumstances of this case do not involve a request for disclosure of a privileged document but, rather, a request to postpone production of a relevant, non-privileged document.  In my view, the issue raised in this appeal requires an inquiry into what factors might negate the mandatory production of relevant, non-privileged documents in an action…..

[37]            I am not persuaded these authorities support the appellants’ position that the common law permits the postponement of non-privileged documents in order to permit a party to challenge the credibility of the opposing party.  On the other hand, neither am I persuaded that the policy considerations relied upon by the chambers judge, namely that prior disclosure may save the cost of discoveries as well as court time, preclude trial by ambush, or advance settlement, are relevant considerations.  In my view, the scope of R. 26(1.2) must be decided by reference to the legislative intent of its drafters and a principled application of the competing rights provided by the Rules of Court to parties in an action.   

[38]            The express wording of R. 26(1.2) allows for exclusion from compliance with R. 26(1), not the postponement of its compliance.  To read in language importing a temporal factor is not, in my view, in keeping with the approach to statutory interpretation adopted in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] S.C.R. 559 at 26, where the Court endorsed the modern approach to statutory interpretation: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.  In determining the scope of the exemption provision in R. 26(1.2), I am of the view the Court must consider only those circumstances in which valid policy concerns might support the decision to exclude (not postpone) production of a relevant, non-privileged document.  …

[45]            There has been much debate over the broad scope of the Peruvian Guano rule, which stated in Murao at para. 12 requires disclosure of “every document … which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit [making the demand] either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a chain of inquiry which may have either of these consequences”.  In my view, it is the extensive scope of this common law disclosure rule that created the need for reasonable limitations.  Stated in another way, it is the “slavish” application of R. 26(1) which informs the scope of R. 26 (1.2). 

[46]            The appellants seek to distinguish these decisions under R. 26(1.2) on the basis that they do not involve a key issue of credibility. They submit that, in this case, an order postponing the production of the surveillance videotapes would give them the opportunity to test the willingness of the respondent to lie about her claim.  They argue that, in the absence of such an order, the respondent might tailor her evidence to fit the scenario depicted in the videotape. 

[47]            With respect, I do not accept this argument as representing a valid purpose for an application of R. 26(1.2).  In this case, there has been no factual determination regarding the respondent’s truthfulness, or lack thereof.  This is the appellants’ theory of liability, and it is for them to establish in the course of the trial.  Nor am I persuaded that the Rules of Court were intended to be used in a manner that would displace a right of a party granted under them, in favour of creating an opportunity for an adverse party to advance their theory of a fact in issue.

[48]            The court in Bronson v. Hewitt, 2007 BCSC 1477,  52 C.P.C.(6th) 116 reached a similar conclusion in dismissing an application for the exclusion of the defendants from one another’s examination for discovery over concerns they might tailor their evidence to fit the evidence of the other.  Credibility was a key issue in that case.  Citing Sissons v. Olson (1951), 1 W.W.R. (N.S.) 507 (B.C.C.A.), Goepel J. stated at para. 17 that “exclusion was only appropriate if necessary to ensure the fair and proper judicial conduct of the action.”

[49]            Another similar conclusion was reached in McGarva v. British Columbia, 2003 BCSC 909.  That case involved a damages claim for breach of fiduciary duty against the Crown by a plaintiff who had been abused while in foster care.  The plaintiff sought disclosure of similar fact evidence from the Crown.  The Crown, in turn, applied for a postponement of disclosure of that evidence in order to avoid the potential of the plaintiff tailoring her evidence to fit the similar fact evidence.  Credibility was a key issue in the action.  Madam Justice Gray declined to impose such a term on the disclosure of the relevant documents, stating that there was no basis for her to restrict the plaintiff’s receipt of this information.  In her view, the Crown’s position was not prejudiced because it would remain open to the Crown to argue, at trial, that the plaintiff had tailored her evidence to conform to any similar fact evidence disclosed to her before her examination for discovery (para. 17).

[50]            The final submission by the appellants is that, in our adversarial system, the right to cross-examination is sacrosanct and should not be trumped by disclosure.  However, this argument mischaracterizes the issue.  Rule 26(1.2) does not limit the appellants’ right to cross-examine the respondent.  The respondent’s credibility may be challenged in any number of ways, including the use of a prior inconsistent statement on cross-examination, the lack of adequate explanation for any apparent discrepancies between the respondent’s actions in the surveillance videotape and her reported disability, and by other evidence tendered at trial that might dispel the legitimacy of her claims.

[51]             In summary, I am not persuaded that R. 26(1.2) was intended for the purpose of restricting the right of a party, at an examination for discovery, to prior knowledge of all relevant and non-privileged documentation in the examining party’s possession and control, in order to permit the latter to advance its theory of the case where credibility of the former is a key issue in the litigation.  

[52]            I would dismiss the appeal and award costs of the appeal to the respondent in any event of the cause.

I should point out that this case does not address the more typical fight about the release of surveillance video in a tort claim that is supposedly privileged.  In this case it was agreed that the tape was not privileged.  This case is useful, however, because the Court of Appeal references many precedents addressing the issue of litigation privilege and the disclosure of video surveillance.

Interesting reasons for judgement were released today dealing with the issue of whether a plaintiff in an ICBC tort claim has to produce materials from previous legal proceedings.

In this case the Plaintiff alleged injury as a result of a 2005 BC motor vehicle accident.  The Plaintiff was involved in previous legal proceedings.  The defence lawyer asked the court for production of 3 documents which were contested, specifically

(a)        a copy of the medical report of Dr. Bloch requested by Ms. (the Plaintiff;s) counsel in a pervious proceeding unrelated to this motor vehicle accident (the “Great West proceeding”);

(b)        a copy of submissions prepared by the plaintiff, dated July 11, 2005 and September 23, 2005, regarding a claim which she brought against Mr. Murray in the Surrey Registry of the Provincial Court of British Columbia;

(c)        a copy of the transcript of the plaintiff’s examination for discovery in the Great West proceeding.

The court first dealt with the issue of whether the current defendant was entitled to the plaintiff’s examination for discovery transcript from a previous legal claim.  The court reproduced paragraphs 51 and 53 of the leading Supreme Court of Canada Decision dealing with the ‘implied undertaking’ of confidentiality of examination for discovery transcripts, specifically:

51.       As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant’s privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d’Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd, at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country. The effect of the Harman decision has been reversed by a rule change in its country of origin.

53.       I would not preclude an application to vary an undertaking by a non-party on the basis of standing, although I agree with Livent Inc. v. Drabinsky that success on such an application would be unusual. What has already been said provides some illustrations of potential third party applicants. In this case the Attorney General of British Columbia, supported by the Vancouver Police, demonstrated a sufficient interest in the appellant’s transcripts to be given standing to apply. Their objective was to obtain evidence that would help explain the events under investigation, and possibly to incriminate the appellant. I think it would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant’s right to silence and the protection against self-incrimination afforded her by the criminal law. Accordingly, in my view, the present application was rightly dismissed by the chambers judge. On the other hand, a non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed. Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the [page187] message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose.

The court in this case refused the defendants motion to produce the plaintiff’s previous discovery transcript and the plaintiff’s previously obtained medico-legal report holding that 

On balance, the plaintiff’s privacy interest outweighs the defendants “fishing expedition” as referred to by Binnie J.A.  I am also of the view that the same must be said of the medical report of Dr. Bloch.  That report was a document created for the previous proceeding.  There is no evidence before me to indicate that it was incorporated into the record of that proceeding, in fact I am advised that the action settled before trial.  In the absence of evidence to the contrary, I would expect that such report would have been created and received subjected to a claim of privilege; there is no evidence before me as to the waiver of such privilege.  The defendants’ application for production of the discovery transcript and the medical/psychiatric report is dismissed.

The court however, did order that the transcript of the plaintiff’s previous submissions in a cmall claims court action be produced holding that:

The defendants’ application for a copy of the plaintiff’s submissions in the provincial court proceeding is, however, a different matter.  That action went to trial; the plaintiff apparently made various oral submissions and representations to the court and, I assume, gave evidence.  In addition she is said to have provided written submissions dated July 11, 2005 and September 23, 2005.  In my view, any undertaking regarding those submissions was spent by their use in that proceeding.