IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100520

Docket:
09 1406

Registry: Victoria

Between:

Dorothy
Beer

Plaintiff

And:

Eva
Nickerson and B.J.T. Pharmacy Consultants Inc.,
doing business as Pharmasave and
Yennadon Holdings Ltd.

Defendants

Before: Master Bouck

Reasons for Judgment

[1]            
The plaintiff applies for an order that certain items
listed in Part III of the defendant Nickerson’s list of documents be produced
for inspection. Ms. Nickerson claims privilege over the documents on the basis
that each item was created for the dominant purpose of litigation at a time
when litigation was a reasonable possibility.

Background

[2]            
Ms. Beer’s claim is for damages arising out of a
slip and fall at a local Pharmasave store. The incident in question occurred on
or about June 20, 2008.

[3]            
It is alleged that the injuries were caused by
Ms. Nickerson’s negligent operation of her scooter in the store. The other
named defendant is the Pharmasave’s owner and operator.

[4]            
A writ of summons was issued on March 31, 2009, and
served on Ms. Nickerson on April 23, 2009.

[5]            
On May 22, 2009, plaintiff’s counsel was advised
that Mr. O’Meara had been retained to act on Ms. Nickerson’s behalf. An
appearance for Ms. Nickerson was filed shortly thereafter.

[6]            
In June 2009, pursuant to a demand issued by the
plaintiff, Mr. O’Meara delivered a list of documents which included the
following items listed under Part III:

5.  Aug 20/08  Statement of Eva Nickerson

6.  Aug 20/08  Drawing prepared by
McCreary-Beniac

7.  Aug 20/08  7
color photographs of scooter and Pharmasave taken by McCreary-Beniac

[7]            
Privilege is claimed over those documents on the
following grounds:

(a)  the documents are communications
passing in confidence between the Defendant, Eva Nickerson and her solicitor or
between her agents, consultants and advisors and her solicitor for the purpose
of providing legal advice or assistance to the Defendant, Eva Nickerson.

(b)  they are communications prepared with a
view to litigation or prepared or obtained as part of it [sic] solicitor’s brief
for pending or contemplated litigation.

(c)  They are documents compiled by the
Defendant, Eva Nickerson’s solicitor for use in cross examination of the
Plaintiff and) other witnesses.

(d)  The documents are or were created in
the context of an ongoing business relationship and are proprietary.

(e)  The
documents were prepared for the sole or dominant purpose of litigation or
contemplated litigation or are communications between solicitor and client.

[8]            
On July 14, 2009, Mr. Selly wrote to Mr. O’Meara
requesting delivery of items 5 through 7 on the basis that privilege was not
properly claimed. In his letter, Mr. Selly makes reference to the decision
of Stevanovic v. Petrovic, 2007 BCSC 1392.

[9]            
In opposing this application, Ms. Nickerson
relies on the affidavit of  Zena McCreary-Beniac sworn April 9, 2010.

[10]        
Ms. McCreary-Beniac is an insurance adjuster
employed by Coast Claims Services Ltd., an independent adjusting firm. She was
retained on this matter on August 18, 2008, to investigate the claim advanced
by the plaintiff.  Ms. McCreary-Beniac was aware that Ms. Beer had
retained counsel.

[11]        
Ms. McCreary-Beniac deposes that shortly
after being retained, she formed the view the coverage on behalf of Ms.
Nickerson was not going to be an issue.

[12]        
On August 19, 2008, Ms. McCreary-Beniac spoke
with T. Clifford Chiu, another independent adjuster who was assisting
the co-defendant.

[13]        
Ms. McCreary-Beniac deposes that on being
retained and “certainly by the time I spoke to Ms. Chiu on August 19”, she
thought it likely that the Pharmasave store would resist any claim for damages
advanced by Ms. Beer “and that litigation would likely follow as a result”.

[14]        
The documents in question were, as noted, created
or obtained on August 20, 2008.

[15]        
Item 6 represents a rough drawing of the
interior of the Pharmasave store prepared by the defendant Nickerson’s
daughter, with refinements made by Ms. McCreary-Beniac based on information
she had ascertained or was told about by the defendant Nickerson.

[16]        
The photographs listed as item 7 were taken by
Ms. McCreary-Beniac because she “was uncertain that the objects depicted
in the photographs would remain the same in the future”.

The Law

[17]        
The legal principles to be applied on this
application are well-settled and set out in Hamalainen (Committee of) v.
Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic,
supra. Those principles are as follows:

1.  The party
withholding disclosure bears the onus of establishing a claim for privilege
over a document.

2.  The test for
considering whether litigation privilege is established is two-fold:

(a)  Was
litigation a reasonable prospect at the time the document in dispute was
created?

(b)  If so, was
the dominant purpose of the document’s creation for use in litigation? (commonly
known as the “dominant purpose” test.)

3.  Litigation can
properly be said to be in reasonable prospect when a reasonable person,
possessed of all the pertinent information including that particular to one
party or the other, would conclude that it is unlikely that the claim for loss
will be resolved without it.

4.  However, the prospect of litigation
alone is not sufficient to meet the claim of privilege. Nor does the denial of
liability alone mean that all documents produced thereafter are subject to a
claim for privilege. As stated by the court in Hamalainen v. Sippola:

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.

6.  It is not
incumbent upon the court to accept without question the opinion of either deponent
on one of the very issues that is to be decided. Whether or not litigation was
a reasonable prospect is a matter for the court to decide on all the evidence.

[18]        
To these principles I would add that the dominant
purpose test is consistent with “the more contemporary trend favouring
increased disclosure”: Blank v. Canada (Department of Justice), 2006 SCC
39 at paras. 60-61.

Ruling

[19]        
Upon considering the evidence presented, I
conclude that the defendant Nickerson has failed to meet the onus of proving a
claim of privilege over the impugned documents.

[20]        
First, I find that on a balance of probabilities,
litigation was not a reasonable prospect when the documents were created. While
the Pharmasave adjuster may have concluded that his client bore no
responsibility for the incident, there is no indication that Ms. Nickerson had
been absolved of blame by her insurer. Even if that conclusion had been drawn,
however, that still does not mean that litigation was a reasonable prospect.
The plaintiff was not threatening litigation and, indeed, could have decided to
proceed no further in the claim once the adjusters became involved. Alternatively,
Ms. Nickerson’s insurers may have chosen to resolve the claim by some sort of
payment before litigation was a reasonable possibility. It is only in hindsight
that Ms. McCreary-Beniac could truly determine that litigation was a reasonable
prospect.

[21]        
If I am wrong in that regard, the plaintiff has
still not met the so-called dominant purpose test. The documents in issue were
created within days of Ms. McCreary-Beniac being retained. On the
continuum discussed in Hammelein, the documents were created in the
investigative stage not for the dominant purpose of litigation. Again, nowhere
in Ms. McCreary-Beniac’s affidavit does she state that her principal would be
denying liability. That is because the investigations into the incident had
only begun.

[22]        
Privilege having not been established, I
therefore order that the items 5 through 7 as listed in Part III of the list of
documents of the defendant Nickerson be produced to plaintiff’s counsel.

[23]        
The plaintiff is awarded costs of the
application in any event of the cause.

                 “C.
P. Bouck”              

Master C. P. Bouck