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Tag: litigation privilege

Plaintiff Lawyer Copies of MSP and Pharmanet Printouts Subject to Litigation Privilege

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, finding that plaintiff’s counsel was correct in listing ‘copies’ of MSP and pharmanet printouts as privileged and refusing to produce a copy to the Defendant.

In today’s case (Kang v. Sahota) the plaintiff was advancing an injury claim and in the course of doing so plaintiff’s counsel ordered copies of their clients MSP and Pharmanet printouts.  These were used as tools in deciding what further records to order to advance the claim. The Defendant brought an application for production of these records.  The Court dismissed this noting that counsel was correct to list these as privileged and the application should seek production of these directly from the Ministry of Health.  In reaching this decision Mr. Justice Riley provided the following reasons:

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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:

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Defendant Statement to ICBC Regarding Crash Details Ordered to be Produced

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, ordering production of a statement from a Defendant to ICBC to be disclosed to the Plaintiff in a personal injury lawsuit.

In today’s case (Canning v. Mann) the Plaintiff was injured in a crash and sued for damages.  The Defendant provided ICBC a statement detailing the circumstances of the crash.  The Defendant refused to provide the statement to the Plaintiff in the lawsuit arguing it was privileged.   The court ordered production noting there was insufficient evidence to establish litigation privilege.  In ordering the statement to be disclosed Mr. Justice Basran provided the following reasons:

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ICBC's "Two Hats" Derails Litigation Privilege Claim

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering ICBC to produce and investigative report and video.
In today’s case (Oates v. Burton) the Plaintiff was injured in a collision and sued for damages.   After being represented by a lawyer the Plaintiff applied for disability benefits from ICBC and shortly after ICBC ordered surveillance.
The Plaintiff, in the context of the injury lawsuit, sought production of the surveillance and the investigator’s report but ICBC refused to produce this arguing it was privileged being created for the dominant purpose of use in the (at the time contemplated) injury lawsuit.  Mr. Justice Voith disagreed finding the report was likely created for dual purposes including investigating the Plaintiff’s claim for disability benefits.  In ordering production the Court provided the following reasons:

]         This case turns, as is generally the case, on the second or more “challenging” question; Raj at para. 12. That “challenging” question is whether Item 4.3 was generated for the dominant purpose of use in litigation.

[24]         I return to the narrow and focused chronology that I emphasized earlier. On August 23, 2013, plaintiff’s counsel, more than ten months after he had first advised the Insurance Corporation of British Columbia that he had been retained, sought an extension of the plaintiff’s temporary total disability (“TTD”) or Part 7 benefits. On September 5, 2013, or less than two weeks later, Item 4.3 was created. Almost immediately thereafter, plaintiff’s counsel was contacted and the plaintiff’s TTD benefits were extended. Approximately nine months later, the plaintiff’s Notice of Civil Claim was filed.

[25]         The plaintiff argues that at least one purpose that underlay the creation of Item 4.3 was the defendants’ desire to investigate or assess the plaintiff’s TTD benefits claim. Furthermore, and importantly, the plaintiff argues that it was necessary for the defendant to expressly address the relationship between the plaintiff’s TTD benefits claim and the creation of Item 4.3…

[31]         I do not say that a deponent, who prepares an affidavit that is intended to support a claim for litigation privilege, must address and negate all other potential or notional purposes, however remote, for which that document might have been prepared. In this case, however, the prospect or likelihood that Item 4.3 was created to address, at least in significant measure, the plaintiff’s TTD benefits claim is not fanciful or speculative. The preparation of Item 4.3 is bracketed, on the one side, by the ten months from when the defendants learned that the plaintiff had retained counsel and by eight months, on the other side, by when the Notice of Civil Claim was ultimately filed.

[32]         Conversely, Item 4.3 was prepared almost immediately on the heels of the defendants learning that the plaintiff was seeking an extension of her TTD benefits. In such circumstances, I do consider that there was a positive obligation on the part of the defendants’ deponent, the adjuster who oversaw the matter, to expressly and directly address the relationship of Item 4.3 and the plaintiff’s claim for TTD benefits, and the extent to which that claim gave rise to the creation of Item 4.3. That failure, in these circumstances, undermines the defendant’s affidavit evidence, calls into question the dominant purpose for the creation of Item 4.3, and is fatal to the defendants’ claim for litigation privilege over Item 4.3.

[33]         This conclusion is reinforced by the affidavit evidence of the adjuster on this central issue – evidence that the Master in the Reasons accurately described as “not particularly persuasive”. Specifically, the adjuster in her affidavit said:

… By the summer of 2013, the medical information seemed to indicate substantial recovery but with some partial disability. To get a better understanding of her function, I hired a private investigator to review the Plaintiff’s level of activity. My intention on retaining the investigator was to use the results of the investigation to hopefully assist with the defence of the claim and to assist counsel to prepare for litigation not yet commenced but reasonably anticipated.

[34]         Accordingly I allow the plaintiff’s appeal, and I order that Item 4.3 be produced to the plaintiff within seven days of these reasons being released. The plaintiff is to have the costs of both this appeal and of her earlier application.

Bare Assertion of Contemplated Litigation Does Not "Cloak Investigation" In Privilege

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing the merits of a claim for litigation privilege.
In today’s case (Buettner v. Gatto) the Plaintiff was injured in a collision and advanced a claim for damages.  The Plaintiff retained counsel.  Liability was initially admitted and then denied by ICBC.  The Plaintiff brought an application for production of various relevant documents and ICBC refused disclosure on the grounds that litigation was reasonably contemplated once Plaintiff counsel was assigned.
The Court rejected this finding this position was based on little more than a bare assertion.  In ordering production of the requested documents Master Caldwell provided the following reasons:

[31]         If this argument is correct, all that any or all adjusters must do in any or all motor vehicle cases is determine, at the instant that the incident is reported, that he or she is going to deny liability and/or the presence of damages without the need to show any basis or accountability for such decision. Having done so, that will virtually ensure that litigation will be required to resolve any claim for loss. Thereafter, having created the virtual certainty of litigation, the defence will be able to reasonably argue that any and all investigations done from the instant that the incident is reported is for the dominant purpose of the conduct of the litigation which they ensured by the arbitrary denial of fault or damage.

[32]         In my respectful view this circular argument runs counter to the letter and spirit of the Hamalainen case, the numerous cases which were cited in and followed by Hamalainen and the numerous cases which have cited and have followed Hamalainen. It runs counter to the stated object of our Supreme Court Civil Rules, B.C. Reg. 168/2009, the securing of the just, speedy and inexpensive determination of every proceeding on its merits. It runs counter to the Supreme Court of Canada decision in Blank v. Canada (Minister of Justice), 2006 SCC 39 and its findings at paras. 60 and 61 where it comments in affirming the dominant purpose test and the role of litigation privilege, that:

The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.


The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client

And finally,

While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.

[33]         Inherent in the reasonable prospect/dominant purpose test must be the expectation or requirement that there be at least some evidence of bona fides, due diligence or accountability on the part of the party seeking to rely on the prospect of litigation, which was created by their own actions, to support their claim of litigation privilege. Absent such requirement the test itself becomes meaningless. This is particularly of concern where, as here, the same insurer provides coverage for both parties and, presumably, owes each a duty of some form of meaningful investigation and determination of facts before reaching a decision on an issue as important as fault or liability for a motor vehicle accident.

[34]         I find that there is no evidentiary basis provided to support the decision of Ms. Hilliam to deny liability. Her unsupported decision cannot be used as justification for her to conduct a proper investigation into the facts of this motor vehicle accident while cloaking that investigation in a claim of litigation privilege. The time line and analysis of the court in Hamalainen is applicable to this case and to the evidence here, save as to the assertions of Ms. Hilliam which I reject. As in Hamalainen, the claim of litigation privilege regarding documents 4.7 to 4.12 inclusive, which documents were created prior to the June 17, 2013 form letter communicating the denial of liability, fails and all such documents are ordered produced forthwith and unredacted.

Private MRI Obtained for Diagnositic Puroses Producable in Injury Litigation

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a plaintiff to disclose the results of a private MRI to defendants.
In today’s case (Prothero v. Togeretz) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff’s physician wished for the Plaintiff to have an MRI and asked that this be obtained privately to expedite matters.  ICBC refused to pay for this service so the Plaintiff arranged to do so privately.  The Plaintiff did produce the MRI images arguing these were privileged.  The Court disagreed and ordered them to be produced.  In reaching this decision Master Caldwell provided the following reasons:

[10]         On the material before me I am unable to agree with plaintiff counsel’s assertion of litigation privilege or solicitor’s brief privilege. It appears clear on the material that the MRI was requested by Dr. Fernandes as part of his course of investigation and treatment of the plaintiff for injuries resulting from the motor vehicle accident; he then obtained the results and referred the plaintiff to a specialist for further assistance in diagnosis and treatment. Dr. Mutat was a treating doctor at the time this took place and only took on the role of expert at a later date when approached by plaintiff’s counsel.

[11]         In the result, the MRI disk is producible and is ordered produced; it came into existence for diagnostic and treatment purposes at the request of Dr. Fernandes, not for litigation purposes at the instance of plaintiff’s counsel. In this regard it would seem that the cost of the MRI will be addressable as a special damage matter relating to medically necessary investigation and treatment rather than as a disbursement in the litigation however that will remain to be determined in the fullness of time.


"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.

"Customer Safety" Based Incident Report Ordered Disclosed as Non Privileged

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Defendant in a personal injury lawsuit to disclose an incident report created following the incident at question.
In today’s case (Smith v. Air Canada) the Plaintiff “was in her seat when a bag allegedly fell on her after a fellow passenger failed to store it securely in the overhead compartment.“.  She sued Air Canada alleging negligence.  Following the incident Air Canada created an “incident report” but refused to provide the Plaintiff with a copy of this document alleging it was created for the dominant purpose of litigation.  Madam Justice Gropper disagreed finding it was instead created primarily with customer safety in mind and ordered it disclosed. In reaching this conclusion the Court provided the following reasons:
[24]         As noted, the first part of the test, whether the document was prepared in contemplation of litigation, must be satisfied before the court goes on to consider the dominant purpose of the creation of the document. Master Baker considered the first part of the test in light of the affidavits that were provided and as a matter of fact. He properly considered, in my view, that when Ms. Soroka prepared her incident report she was attempting to discover the cause of the accident, whether there were witnesses, and the nature of the injuries sustained by Ms. Smith. She said that her first concern was customer safety.
[25]         As with any claim of privilege, the trier of fact must assess whether the assertion that the document was prepared in contemplation of litigation is reasonable. He cannot simply rely on the statement that the document was prepared in contemplation of litigation. If that were so the mere assertion would determine whether the document was privileged.
[26]         Master Baker assessed the circumstances at the time the report was written and concluded that it was not reasonable to accept that Ms. Soroka prepared the incident report in contemplation of litigation.
[27]         As I stated, the Master applied the appropriate test and reached a reasonable conclusion. The Master’s view that litigation was not a reasonable prospect at the time the incident report was created is not clearly wrong.
[28]         Having reached that conclusion, it was not necessary for Master Baker to consider the dominant purpose test. He did not conflate the two-part test as Air Canada suggests. Air Canada did not clear the first hurdle.

BC Court of Appeal Summarizes Test for Asserting and Proving Litigation Privilege

The BC Court of Appeal released reasons for judgment today providing a concise summary of what is needed to succeed in asserting a litigation privilege claim.
In today’s case (Gichuru v. British Columbia) the Court was asked to address whether various documents were properly withheld due to claims of litigation privilege.  The BC Court of Appeal noted that the following test must be met to justify such a claim:
Madam Justice Gray then proceeded at para. 94, and following, to usefully describe the type of information necessary to sustain a claim of privilege. (Keefer Laundry concerns discovery of documents in a civil suit but the principles discussed by Gray J. are equally applicable to s. 14, the issue under consideration here.) I would adopt her comments as follows:
[96]      Litigation Privilege must be established document by document. To invoke the privilege, counsel must establish two facts for each document over which the privilege is claimed:
1.               that litigation was ongoing or was reasonably contemplated at the time the document was created; and
2.               that the dominant purpose of creating the document was to prepare for that litigation.
(Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada (2005), 40 B.C.L.R. (4th) 245, 2005 BCCA 4 at paras. 43-44.)
[97]      The first requirement will not usually be difficult to meet. Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola [(1991), 62 B.C.L.R. (2d) 254])
[98]      To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.
[99]      The focus of the enquiry is on the time and purpose for which the document was created. Whether or not a document is actually used in ensuing litigation is a matter of strategy and does not affect the document’s privileged status. A document created for the dominant purpose of litigation remains privileged throughout that litigation even if it is never used in evidence.
[33]         In Stone v. Ellerman, 2009 BCCA 294, Chief Justice Finch speaking for the Court, suggested that where the claim is litigation privilege rather than solicitor-client privilege, the description necessary to validate the claim to privilege must be more detailed. At para. 27 he held:
[27]          Some authority supports the proposition that where the privilege claimed is not solicitor-client privilege but rather litigation privilege, as in this case, the premium placed on protecting the information is lower and the description must be more detailed to facilitate challenge. In Hetherington v. Loo, 2007 BCSC 129, Master Caldwell distinguished Leung v. Hanna [(1999), 68 B.C.L.R. (3d) 360 (S.C.)] on the basis that it dealt exclusively with solicitor-client privilege. He reasoned as follows:
[8]        …The present case deals with a claim of privilege based upon the “dominant purpose of litigation” test and protection. While information such as the date and author’s identity may well be protected from disclosure under a claim of solicitor-client privilege, such protection is not necessarily afforded claims of privilege based upon the dominant purpose test. The latter protection is less absolute, more fact driven and subject to challenge. In the recent case of Blank v. Canada (Minister of Justice), [2006] S.C.J. No. 39, Fish J. said at [paragraph] 60:
the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.
[9]        And at [paragraph] 61:
While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.
[10]      In order that proper assessment may be made as to the propriety of a claim of litigation or dominant purpose privilege it is necessary that sufficient particulars of the documents be given. In most cases dealing with documents involving adjusters files and certainly in this case, particulars as to date and author must be provided. When dealing with interview notes, transcripts, and statements, it may also be necessary to identify if not the actual subject, at least the category of subject (e.g. eyewitnesses, home-care worker, etc.) involved.
[Emphasis added by Finch C.J.B.C.]

Costs Ordered Following "Unnecessary" Defence Case Planning Conference

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing when Case Planning Conferences are unnecessary and finding that a costs order is appropriate in the face of such a CPC.
In today’s case (Stewart v. Robinson) the Plaintiff was involved in a collision and sued for damages.  The Defendant set down a CPC seeking an order requiring the Plaintiff to reveal the “the areas of expertise” of the experts the Plaintiff would rely on at trial.  The Defendant also sought a few collateral orders such updated lists of documents and timelines for discoveries.  The Court held that the first order was one the Court had no jurisdiction to make and that the further orders were unnecessary given that the Plaintiff was fulfilling their disclosure duties under the Rules of Court.
Master Bouck dismissed the Defendant’s application and in doing so found it was an uncessary hearing and ordered that costs be paid.  In reaching this result the Court provided the following reasons:
[25]         Rule 5-3 (3) requires the court to make a case plan order following a CPC. In my view, that requirement presumes that the CPC served some purpose…
[28]         The plaintiff submits that the sole purpose of the case planning conference was an attempt by the defence to ferret out information about the plaintiff’s experts even though such a purpose is contrary to well-established law. The plaintiff also cites Galvon v. Hopkins, 2011 BCSC 1835, and Amezcua v. Norlander, 2012 BCSC 719 (Master)…
[34]         Read together, the above authorities stand for these propositions:
1.  rules of civil procedure do not trump substantive law, including the principle of litigation privilege;
2.  a party is not required to reveal, in a case plan proposal or order or otherwise, the name of any expert or the area of expertise of any intended expert before the 84-day deadline for the service of expert reports; but
3.  the court may order that the service requirements under Rule 11-6 (3) be abridged such that expert reports are to be served earlier than the 84 days before trial. Such an order will only be made in exceptional cases where a compelling reason for early disclosure is demonstrated.
[35]         While a party may volunteer details of their expert evidence in advance of the 84-day deadline, a CPC is not required for that purpose. The information can simply be provided in correspondence without the necessity of judicial involvement. As the court determined in Dhugha, the omission of the name of an expert or his or her area of expertise from a case plan order does not preclude the admission of that expert evidence at trial.
[36]         Thus, the order sought in the defendant’s case plan proposal with respect to experts could not be made by the court. The order proposed by the defence at the CPC with respect to experts is not necessary.
[37]         That leads to the next question: was a CPC necessary for any other purpose? In my view, it was not.
[38]         An order requiring the parties to exchange further amended lists of documents by certain dates is not necessary. Both counsel acknowledge the duty to provide ongoing document disclosure as required by theSCCR. The suggested deadlines micromanages a case that does not require such management.
[39]         An order requiring delivery of a certain therapist’s records by a specified date is also not required. The plaintiff has volunteered to provide those records.
[40]         An order identifying the timing and length of examinations for discovery is also unnecessary. The parties have agreed to examination dates. The length of these examinations was not seriously in dispute at this conference and did not require judicial management.
[41]         In short, I find that no case plan order ought to or need be made at this time…
[46]         Having already concluded that the CPC was unnecessary, I award the plaintiff costs related to counsel’s preparation and attendance and the conference. Those costs are fixed at $750 all inclusive, not payable forthwith.