Expert Report Privilege Waived With Disclsoure to Disability Carrier

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff involved in a vehicle collision injury claim to turn over an otherwise privileged report to the Defendant because the report had been previously disclosed to the Plaintiff’s disability benefits provider.

In today’s case (Malimon v. Kwok) the Plaintiff was involved in a 2015 collision and sued for damages.  In the course of the lawsuit the Plaintiff obtained a medico-legal report from a physiatrist.  The Plaintiff did not disclose the report to the Defendants maintaining a claim of litigation privilege.

The Plaintiff did share a copy of the report with her long-term disability benefits provider hoping it would assist in their assessment of her claim.

The Defendants succeeded in obtaining an order that the above disclosure waived litigation privilege and the BC Supreme Court ordered that a copy be provided to them.  In reaching this decision Master Elwood provided the following reasons:

[26]         However, I agree with the defendants that litigation privilege will be lost when a potential litigant, knowing that a document is protected by the privilege, deliberately discloses it to a party who is not involved in the preparation of the case for trial: see for example Sommerville Belkin Ind. Inc. v. Brocklesby Transport (1986), 65 B.C.L.R. 260 (S.C.), at para. 24 and 26.

[27]         The purpose of litigation privilege is to create a “zone of privacy” within which a lawyer can prepare a case for trial without intrusion into his or her thoughts or work product: Blank v. Canada (Minister of Justice), [2006] 2. S.C.R. 319, 2006 SCC 39, at para. 32 – 34. Deliberate disclosure of an expert report outside that zone of privacy constitutes a waiver of litigation privilege.  

[28]         The plaintiff has not sworn an affidavit on this application. In the absence of any evidence from the plaintiff, I think it is a fair inference that she knew her appointment with Dr. Travlos was for the purpose of litigation against the defendants and that a report by Dr. Travlos was subject to a claim of litigation privilege. Likewise, I think it is a fair inference that that the plaintiff provided the report to the PSA voluntarily and deliberately, with the intention of using it to convince Great West Life to reconsider its decision denying her long-term disability benefits. In other words, she deliberately disclosed the report to an outsider for a purpose unrelated to preparing her case for trial. 

[29]         While it may be possible that an employee could disclose a privileged medical report to her employer or benefits provider on the understanding that it will be held in confidence, and thereby preserve litigation privilege, there is no evidence in this case that the plaintiff asked Great West Life to hold Dr. Travlos’ report in confidence or that they would agree to consider the information on those terms.  

[30]         The plaintiff also asserts a common interest privilege. Litigation privilege may be maintained when a privileged document is disclosed to another party that has a common interest with the disclosing party.  The common interest exception has been found to apply where, for example:

·       the sender and receiver anticipate litigation against a common adversary on the same issue or issues, whether or not they are both parties: General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.); and

·       two defendants in a motor vehicle action with a common interest in demonstrating that the plaintiff was contributorily negligent share between them an expert engineering report: Wade v. Ray, [1997] B.B.J. No. 2877 (S.C.).

[31]         I cannot conceive of a common interest between the plaintiff and Great West Life on the subject of Dr. Travlos’ report. Great West Life denied the plaintiff’s claim to long-term disability benefits. The plaintiff’s interest was in convincing Great West Life to reconsider its decision. Great West Life’s interest was in administering the plaintiff’s benefits in accordance with the terms of the plan. The plaintiff and Great West Life do not have a common adversary in the defendants on the issues in Dr. Travlos’ report. Great West Life may have a right of subrogation under the plan, but that right does not create a common interest with the plaintiff in demonstrating that she suffered a long-term disability as a result of the accident.  

[32]         The plaintiff waived litigation privilege over the report of Dr. Travlos dated February 23, 2017. That document must be produced to the defendants. The plaintiff must also produce an unredacted copy of the e-mail to the PSA dated February 23, 2017.