COURT CASES on PRIVILEGE
GENERAL TEST for LITIGATION PRIVILEGE
In Snow v Friesen, ICBC’S lawyer objected to certain documents being produced, based on litigation privilege. The Plaintiff brought an application, and was largely successful. The Court went on to discuss the test for litigation privilege.
[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 …”.
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.
[9] The dominant purpose test in the context of litigation privilege came before the Supreme Court of Canada in Blank v. Canada, 2006 SCC 39 (CanLII), 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.
[10] It is in the context provided by Hamalainen and Blank that the defendants’ claim to litigation privilege must be determined with the onus on the defendants to establish the privilege on a balance of probabilities. The first question is whether the defendants have established that litigation was a reasonable prospect at the time of production of each of the documents over which they claim litigation privilege.
EVIDENCE NEEDED in SUPPORT of a CLAIM for PRIVILEGE
In Shooting Star Amusements Ltd. v. Prince George Agricultural and Historical Association, the British Columbia Court of Appeal discussed the need for evidence in support of a claim for privilege.
[7] In my view, the criteria necessary for leave to be granted have not been met in this case. I do not read the authorities that were provided to us as uncertain or conflicting. A careful examination of Delgamuukw indicates that the Chief Justice’s comments were “designed for this unusual case where counsel have established some lines of communications and are working together … with a common understanding of the nature of this massive case and of the problems each of them are enduring.” (My emphasis.) The circumstances of this case and of Keefer are very different from those in Delgamuukw, and 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 decided Hamalainen (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.
[8] In the case at bar, Mr. Dungate stated in the course of his application in this court that at their meetings, the directors of his client had discussed certain settlement discussions and legal advice given to the defendant by its previous solicitor. However, the transcript indicates that he steadfastly refused to provide these “details” to Bruce J. below, either orally or by affidavit. Without any such information, she understandably declined to accede to the argument that privilege had been established, and was reluctant to review the documents herself. I think it highly unlikely that this court would interfere with her exercise of discretion in these circumstances.
[9] Finally, with respect to irreparable harm, 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.
PRIVILEGE AT CASE PLANNING CONFERENCES
In Blackwell v. Kwok, the Plaintiff was injured in a motor vehicle accident, and initiated an ICBC claim for damages for pain and suffering, as well as other heads of damages. At a Case Plan Conference, ICBC’S lawyer sought a court order directing the Plaintiff to disclose the specialty of an expert witness that the Plaintiff intended to rely on at trial. The Court would not grant the order sought by ICBC’S lawyer, stating that this would trump the privilege in the solicitor’s brief of Plaintiff’s counsel.
[11] Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723. In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial. The Court denied the application:
[10] The area of expertise of an intended expert witness is a matter of trial strategy. Trial strategy is a key component of a solicitor’s brief. It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations. Intentions may change as the process unfolds over time.
[11] In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12] That being said, there may well be cases in which a departure from the usual timelines can be justified. For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …
[12] I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7). Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.
[13] In my view, the defendants’ application should be rejected. I see no prejudice if the normal rules for delivery of expert reports apply. If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.
[14] Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.
[15] The Court declines to make the order sought.
In Galvon v. Hopkins, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages. At a case planning conference, ICBC’S lawyer obtained an Order requiring counsel for the Plaintiff to notify ICBC’S lawyer of the name of a neurologist that the Plaintiff had a future appointment with, and the names of future experts as well, including their area of expertise. The lawyer for the Plaintiff appealed, arguing that the Master did not have jurisdiction to make such an order. The appeal was allowed, with the Court commenting:
[21] I agree with counsel for the plaintiff’s submission that Rule 5‑3 cannot be read as to allow the case planning conference judge or master to disregard the common‑law principle of privilege.
[22] In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.
[23] Furthermore, in my view, Master Bouck fell into error when she assumed that any medical expert with whom the plaintiff and her solicitor conferred automatically become a witness at trial. She did not appear to consider the possibility that the plaintiff would receive advice from the expert that would not result in a report being prepared or the expert being called at trial. She did not appear to consider that the object of the rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.
[24] By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, nor warranted, I might add, by our Supreme Court Rules.
[25] Having concluded that our rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiction to do so.
PRODUCTION of MEDICAL EVIDENCE WHEN PLAINTIFF ARRANGES FOR an EXAMINATION
In Lanteigne v Brkopac, the Plaintiff’s lawyer arranged for the Plaintiff to meet with a neuropsychologist to explore the possibility of a brain injury, however did not order any report. ICBC’S lawyer brought an application to compel production of the clinical notes, however the Court denied the application, holding that clinical notes arising from a Plaintiff-arranged examination are subject to litigation privilege.
[21] In my view it is improper to categorize the non-treating doctor or any other third party consultant retained on behalf of the plaintiff as a witness in which there is no property. The very fact that the plaintiff consulted with that physician or other individual during the course of litigation removes that individual from the “witness” category until such time as the plaintiff and counsel make a determination about whether or not that physician will be used as a witness at the trial, and preserves the right of privilege. The fact that the consulted doctor or other consultant never gives evidence preserves the privilege for all time unless waived by the plaintiff.
[22] While the defendant and third party submit they could have the plaintiff examined by their own doctor or proceed with an examination of the doctor pursuant to Rule 7-5, they complain that those alternatives are costly, and, accordingly, the court should assist them by ordering the records of Dr. Coen be produced and thus save them the cost of proceeding with the other alternatives. The defendant also submits that Rule 1-3 provides the court with sufficient justification to order Dr. Coen to provide his notes of the plaintiff’s examination.
[23] In my view, the defendant and third party have not shown any meritorious reason for abrogating the plaintiff’s litigation privilege related to the information obtained by Dr. Coen from the plaintiff as a result of the referral to Dr. Coen by the plaintiff’s solicitor. Nor, in my opinion, does Rule 1-3 provide justification for abrogating the privilege. Accordingly, the plaintiff’s application fails with costs to the plaintiff in any event of the cause.
INFORMATION COLLECTED BY ICBC in EARLY INVESTIGATIVE STAGES
In Fournier v Stangroom, ICBC collected information in the initial investigative stages following the accident. The lawyer for ICBC attempted to argue that such information is subject to litigation privilege, however the Court ruled that such information was in fact not subject to litigation privilege.
[10] The next issue involves what has been referred to as the MEA Engineers file material.
[11] On August 9, 2007 the initial adjuster on the file requested MEA or one of their engineers to examine the plaintiff’s vehicle in order to determine whether the plaintiff was wearing his seatbelt at the time of the collision. The engineer did so, communicated with the adjuster the following day with questions and subsequently reported to the adjuster on September 13, 2007. That adjuster referred to that report as being sufficient for his purposes; the next adjuster, Ms. Madsen referred to the “verbal report” as being “sufficient for the purposes of handling the claim SHORT OF LITIGATION” (emphasis mine).
[12] In early 2011 defence counsel commissioned MEA to prepare an expert report, apparently regarding the seatbelt issue, for possible use at trial; he says that since such a report has now been requested, the engineer’s file material, notes and such are not producible unless and until the report is received and provided to plaintiff’s counsel 84 days before trial.
[13] In cases such as this one, the adjuster or adjusters have duties of investigation on behalf of both the plaintiff and the defendants; there must, almost of necessity, be an initial period of adjusting or investigating to discover the factual matrix within which the adjusters will perform their duties and assess the file and the claims or roles of the interested parties. Absent such period and process of investigation the adjuster can have no reasonable basis upon which to conclude that there is a reasonable prospect of litigation and that all or part of what is done from any given point in time forward is done for the dominant purpose of litigation. In this regard see Hamalainen (Committee of) v. Sippola 1991 CanLII 440 (BC CA), (1991) 62 BCLR (2d) 254 (BCCA).
[14] These engineers were approached within the first 3 weeks following the collision, clearly within the period of initial investigation and was even seen by at least one of the adjusters as being used for purposes of handling the file short of litigation. The investigative material, notes, correspondence and other such recordings of the engineers were not created at a time when litigation was a reasonable prospect; neither were they created for the dominant purpose of litigation. The fact that counsel has now requested an expert report from MEA does nothing to change that any more than a request to a G.P. or plaintiff’s medical expert that he or she provide an expert report renders that practitioner’s clinical records privileged.
[15] The MEA investigative material, notes, correspondence and working papers which arose between August 9, 2007 and September 13, 2007 inclusive are not subject to a valid claim of litigation privilege; they are ordered to be listed and to be produced to plaintiff’s counsel within 14 days. If there are any other MEA materials which arose between September 14, 2007 and the date when defence counsel commissioned their expert report, those are to be listed with the required clarity, date and description in order that any further claim of litigation privilege can be properly assessed.
INFORMATION COLLECTED BY PLAINTIFF’S COUNSEL IN EARLY STAGES
In Cliff v. Dahl, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC for damages for pain and suffering. Shortly after the motor vehicle accident, the lawyer for the Plaintiff hired investigators to obtain witness statements. ICBC’S lawyer asked the Plaintiff’s lawyer for the witness statements, however the request was refused on the grounds of privilege. ICBC’S lawyer brought an application to compel production of the witness statements, arguing that they should be produced as they were acquired in the investigative stages, however the Court refused to grant the application.
[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.
DUTIES of COUNSEL WHEN LISTING PRIVILEGED DOCUMENTS
In Craig v Smith, the Court addressed the issue of the duties of counsel when claiming litigation privilege of a document.
[3] When the motion for production was filed, there had clearly been inadequate listing and disclosure of documents by the third party; I need not particularize the problems as virtually all of them have been acknowledged and remedied by agreement. In particular, counsel for the third party has agreed that the redaction for litigation privilege must be done by counsel; it is not to be done by the Freedom of Information Officer, a legal assistant or an adjuster. Counsel for the third party agreed during the second day of argument that he must and will review each of the more than 400 individual pages of documents as well as several disks of photographs and will thereafter provide a proper listing of documents.
[4] I must however ask: Why has it taken over a year, several written demands, a formal application to court and a day of argument, over the course of two days, to get counsel to undertake the task which should have happened by Fall, or at the latest, the end of 2009?
[5] It is counsel’s duty to determine relevance and claims of privilege; see G.W.L. Properties Ltd. v. W.R Grace & Co., [1992] B.C.J. No. 2387. There is an obligation to describe documents in sufficient detail to enable other parties to assess the validity of the claim of litigation privilege; see Hetherington v. Loo et al, 2007 BCSC 129 (CanLII), 2007 BCSC 129 and Nanaimo Shipyard Ltd. v. Keith et al, 2007 BCSC 9 (CanLII), 2007 BCSC 9. The dominant purpose test is still the appropriate test to be applied in determining litigation privilege but is “more compatible with the contemporary trend favouring increased …mutual and reciprocal disclosure which is the hallmark of the judicial process”; see Blank v. Canada (Minister of Justice), 2006 SCC 39 (CanLII), 2006 SCC 39. This is all well settled law.
[6] It is tempting in this case to find that the third party has had more than adequate time to provide proper disclosure, that he has failed to meet the burden on it to support its claim of litigation privilege on all or most of the documents created before the filing of the Statement of Defence and to simply order disclosure and production of everything created prior to May 27, 2009. In my view that would be wrong and punitive.
[7] Upon a full review of the materials before me and the submissions of counsel, I am satisfied that the plaintiff has now received or will be receiving considerable additional disclosure; perhaps all disclosure which he originally sought. I am also satisfied that he would not have received such disclosure without this application.
