The "Investigative Stage" Bar to Privilege: Plaintiffs vs. Insurers


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.

Cliff v. Dahl, Dominant Purpose, investigative stage, litigation privilege, Mr. Justice Smith, reasonable contemplation of litigation, Rule 7, Rule 7-1, Rule 7-1(1), Rule 7-1(10), Rule 7-1(11), Rule 7-1(12), Rule 7-1(13), Rule 7-1(14)

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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