"The Continuum Between the Information-Gathering and Litigation Stages"

Reasons for judgement were released today by the BC Court of Appeal discussing “the continuum between the information-gathering and litigation stages” in the context of an application for production of privileged documents.
In today’s case (Raj v. Khosravi) the Plaintiff was involved in a motor vehicle collision.  Both he and the at fault motorist were insured with ICBC.  The Plaintiff met with an adjuster to advance his claim.  After the initial meeting the ICBC adjuster commissioned the services of a private investigator who produced a report.
In the course of his lawsuit the Plaintiff requested a copy of this report but ICBC refused to provide it arguing it was subject to litigation privilege.  The plaintiff argued that the report was commissioned in the ‘investigative stage’ following the collision and further that even if the report was in part prepared for the purpose of defending subsequent litigation, it was also commissioned in the context of his claim for Part 7 benefits.   The lower courts reached opposing conclusions on whether the report was subject to litigation privilege.  In finding that it was, the BC Court of Appeal provided the following reasons on the sometimes parallel roles ICBC plays while investigating claims:

[50]         In my respectful opinion, the judge erred in characterizing the Meeting as part of the information-gathering process, thereby foreclosing a finding that litigation was “in reasonable prospect” when the Report was commissioned. The master, correctly in my view, described the Meeting as “information gathering for the purposes of defending an anticipated claim for lost income” (para. 27). Litigation may be “in reasonable prospect” at any point along the continuum between the information-gathering and litigation stages of an inquiry if an evidentiary basis is established that a party has more than just suspicions about the legitimacy of litigation occurring. The two stages are not mutually exclusive for such a finding. Moreover, this aspect of the test, as noted in Hamalainen, will not be particularly difficult to establish. The evidence in this case established that by the date of the Meeting the information regarding the nature of the accident and the parties involved had been sufficiently established for ICBC to admit liability on behalf of Mr. Khosravi. In my view, an evidentiary basis was established for the master’s finding that litigation was “in reasonable prospect” when the Report was commissioned.

[51]         Similarly, the master found that the dominant purpose of the Report was to assist ICBC in the conduct of Mr. Raj’s anticipated tort claim. She did so by accepting Mr. Kalisch’s evidence that there was no other purpose for the Report other than Mr. Raj’s tort claim, as any potential Part 7 claim by Mr. Raj would only become a reality if and when Mr. Raj provided written confirmation that he had no WCB coverage. While the Report might be relevant to a potential claim for Part 7 benefits in the future, such a claim at the time of the Meeting was not a purpose for the Report’s production. The lack of confirmation that Mr. Raj did not have WCB coverage, and therefore could not make a Part 7 claim at that time, corroborated Mr. Kalisch’s evidence that he had no purpose other than the anticipated tort claim for ordering the Report. Again, in my view it was open to the master on this evidence to find that the dominant purpose of the Report was to defend Mr. Raj’s anticipated tort claim.

[52]         In my respectful view, the judge erred in finding that there was a dual purpose for the production of the Report. The evidence of Mr. Kalisch, as accepted by the master, was that the only purpose for the Report’s production was the anticipated tort claim. Even if a dual purpose could be found to have existed, in my view the judge erred in finding that the dominant purpose of the Report was not litigation because Mr. Khosravi had not eliminated the competing Part 7 claim (para. 49). Mr. Khosravi was not required to eliminate all potential purposes for the Report in order to establish that its dominant purpose was litigation.