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Litigation Privilege

What type of documents does litigation privilege protect? What test do I need to satisfy to protect documents under this form of privilege?

In the recent case of Oates v Burton, (2016 BCSC 1428),  the plaintiff sought a review of a previous decision that denied the production of a document the plaintiff was trying to compel the defence to produce. The document in question, Item 4.3,  was a video tape and investigative report produced two weeks after the plaintiff applied for a TTD extension. Just days after the video tape was made, TTDs were extended. ICBC said the video tape was produced for litigation purposes but the timing of it’s creation raised serious questions as to whether that was really the sole purpose for which the tape was created. Despite these concerns ICBC was successful in claiming privilege at the initial hearing. The plaintiff applied for a review of the Master’s decision which resulted in the  Supreme Court reversing the decision,  finding that the document in question was not protected by litigation privilege. Essentially, the defence’s claim for privilege failed on review because they did not properly identify (in their affidavit) all the potential purposes for why they had prepared the document in question. In coming to his decision, Mr. Justice Voith, described the test for litigation privilege and the onus that a party asserting it must meet.

Issue 2: Does Item 4.3 Enjoy Litigation Privilege?

iii)      Litigation privilege is established on a document-by-document basis

[19]         To establish such privilege, the defendants must meet the well-known two-step test:

  1. a)       Was litigation in reasonable prospect at the time the document in dispute was created? And;
  2. b)       If so, was the dominant purpose for the document’s creation for use in litigation?

iv)      Each document must be assessed at the time it was created

[20]         See Brayley v. Pappas (1991), 64 B.C.L.R. (2d) 37 at para. 8 (S.C.); and R.W. Hubbard, S. Magotiaux & S.M. Duncan, The Law of Privilege in Canada, (Aurora, Ont.: Canada Law Book, 2006) (loose-leaf) at 12-4.

v)       If a document is created for a dual purpose, one of which is not for use in litigation, it must be produced

[21]         See Meyer v. Lahm, 2015 BCSC 749 at para.15. However, the claim of litigation privilege “will succeed when a party can establish that a document produced for dual or multiple purposes, one of them being litigation, was produced for the dominant purpose of litigation”; Raj at paras. 16-17.

[22]         In this case, the plaintiff did not seriously question that there was a reasonable prospect of litigation when Item 4.3 was created. This first issue or first test is not usually difficult to make out as the threshold is low; see Raj at para. 10; and Hamalainen at para. 21. Here, the plaintiff was seriously injured in an accident and the defendant had been contacted by the plaintiff’s former counsel. There existed a reasonable and objective basis to consider the claim would not be resolved without resort to litigation.

[23]         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.

[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.

[26]         In Brayley at para. 7, Master Bolton said:

Ms. Chow deposes in her affidavit that the dominant purpose was to obtain a statement in writing because litigation is always a distinct possibility. But it is not enough to simply recite the magic formula “dominant purpose,” as a sort of charm that will fend off all evil. All the circumstances of the making of the statement have to be examined, and with respect, an affidavit as to purpose cannot be relied upon if it entirely ignores the relevance of the statement to other potential uses, such as Mr. Pappas’ own claim for accident benefits; a claim for collision coverage; a claim for damages for negligence against Ms. Brayley; an I.C.B.C. investigation of policy breach, or to simply comply with his obligation to provide a statement pursuant to s. 10(3) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1979, c. 204. All of these potential uses should be dealt with in the affidavit material, and eliminated or minimized as relevant factors to the point that the court can itself conclude that the remaining purpose, the defence of imminent litigation, was indeed dominant.

[27]         In Trask v. Can. Life Assur. Co., 2002 BCSC 1741, Madam Justice Sinclair Prowse said at para. 48:

Proof that the dominant purpose of a document was litigation is not met by taking the documents as a whole and treating them as one document, and claiming that the dominant purpose of all of them was to assist in litigation. See: Shaughnessy Golf & Country Club v. Uniguard Services Ltd. (1986), 1 B.C.L.R. (2d) 309 at 319 (C.A.). This affidavit must also address other potential purposes for the document (if there are any) so that those other purposes can be eliminated or minimized enabling me to draw the proper conclusion as to whether the document is protected by privilege. See: Brayley v. Pappas (1991), 64 B.C.L.R. (2d) 37 (S.C.) and Kaiser v. Bufton’s Flowers Ltd., supra. As Master Joyce stated in Hosanna Enterprises Ltd. v. Laser City Audio Video Ltd., [1999] B.C.J. No. 57 at para. 11 (S.C.):

In my respectful opinion these decisions [Brayley, supra and Kaiser, supra] reinforce and restate the principle that the party asserting the litigation privilege must establish on all of the evidence that the dominant purpose for which the document was created was litigation. Merely saying the dominant purpose was litigation may not satisfy the test if there are other possible purposes which are equally likely. If those other purposes are not dealt in one way or another, then it may not be possible to accept the bald statement of the deponent. On the other hand, just as the recantation of the words is not a magic charm neither is the failure to utter the precise words necessarily fatal.

[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.

[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.