During litigation, are you entitled to see all of ICBC’s documents about you and your case? What if they were obtained from your Facebook profile?
In the May 7, 2015 case of Meyer v Lahm, 2015 BCSC 149 the plaintiff made an application for production of various ICBC documents that the defence was hoping to keep confidential. Master Caldwell described the development of “litigation privilege” before ordering that documents must be shared unless the only purpose of creating the documents was to defend the lawsuit:
[8] The test for litigation privilege has been often stated and re-stated, but is possibly best summarized in simple form in the case of Hamalainen (Committee of) v. Sippola (1991) 62 BCLR (2d) 254 where the decision of Master Grist, as he then was, is affirmed by the Court of Appeal. The questions to be asked are:
(1) Was litigation in reasonable prospect at the time the document was produced; and
(2) If so, was its use in that litigation the dominant purpose for its production?
[9] Subsequent courts have addressed the issue on different facts and from different perspectives, including the Supreme Court of Canada in the case of Blank v. Canada (Minister of Justice), 2006 SCC 39 where that Court recognized the more modern trend towards limiting litigation privilege in favour of fuller disclosure.
[10] In spite of such modern trend towards fuller disclosure, litigation privilege, while somewhat more limited, is not dead.
[15] The next question is often the more difficult question. Was the contemplated litigation the dominant purpose for the creation of the document in question? In Waugh v. British Railways Board, [1980] A.C. 521, Lord Wilberforce, referring with approval to the dissent of Lord Denning in the lower court, indicated that if material comes into being for a dual purpose rather mainly for use in litigation it must be disclosed. In my view, nothing has occurred in the development of our law to diminish that general statement.
[16] Looking then at the individual documents with a view to the dominant purpose test I would find as follows:
(1) Document 4.1: This document is described by Ms. Frenken in her affidavit as an internal form that records data in the contemplation of litigation, primarily with regard to the plaintiff’s anticipated claims for damages. Were the description to end there the claim of litigation privilege might well succeed, however Ms. Frenken goes on to expressly say that “the purpose of this form is to request ICBC’s rehabilitation department to assess and assist the Plaintiff for a rehabilitation program.” This is clearly a document which was produced for at least a dual purpose and is ordered produced.
(2) Documents 4.2-4.7: These documents relate to investigations into the plaintiff’s on-line presence including Facebook, interviews with the plaintiff’s employer regarding her employment and income loss, surveillance of the plaintiff and a defence medical exam report. All of these came into existence when litigation was a reasonable prospect. All of them, by their very nature, are consistent with litigation and trial preparation and are not consistent with any other reasonable inquiry. The claim of litigation privilege succeeds as regards these documents and they are not ordered produced.
(3) Document 4.8: This document is described by Ms. Frenken as an “Independent Occupation Therapist (OT) Case Management Initial Report for ICBC Accident Benefits”. In the paragraph immediately preceding that description, Ms. Frenken swears that she consulted with her manager, Carla Jorge, and then “instructed Intuitive Rehabilitation Services to evaluate the Plaintiff in order to develop a return to work plan for her and to start the Plaintiff in an active rehabilitation program.” Nothing in that explanation speaks to litigation, rather it specifically and expressly indicates that the consultation and report were for the purpose of a rehabilitation and return to work plan. Document 4.8 is ordered produced.
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