IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Pshelensky v. Gouda, |
| 2010 BCSC 1073 |
Date: 20100730
Docket: M075439
Registry:
Vancouver
Between:
Nikolay
Pshelensky
Plaintiff
And
Kyle
Lee Dion and Rita Gouda
Defendants
Before:
Master Taylor
Reasons for Judgment
Counsel for Plaintiff: | A. Spence |
Counsel for Defendants: | T. Schmit |
Place and Date of Hearing: | Vancouver, B.C. July 20, 2010 |
Place and Date of Judgment: | Vancouver, B.C. July 30, 2010 |
[1]
The defendants seek an order requiring the defendants to disclose
certain documents over which privilege is claimed.
Facts
[2]
The plaintiff seeks compensation for injuries suffered in a motor
vehicle accident on November 15, 2006. The defendants vehicle was a van
bearing Alberta licence plates owned by the defendant Rita Gouda and driven by
the defendant Kyle Lee Dion. The defendants vehicle and the claimants
vehicle collided in an intersection. Both liability and quantum are in issue.
[3]
The plaintiff alleges that the defendant Dion negligently failed to stop
at a stop sign. In the statement of defence the defendants deny that the
accident occurred as a result of the negligence of the defendant Dion and
allege that the plaintiff was negligent, by failing to stop at a stop sign
before entering the intersection.
[4]
On November 21st, 2006 the law firm of Lacroix Mathers wrote
a letter to the Insurance Corporation of British Columbia indicating that firm
was representing Mr. Pshelensky in connection with injuries received as a
result of the motor vehicle accident of November 15, 2006. The lawyers letter
made various requests for information and enclosed a short statement from Mr.
Pshelensky which purported to be in compliance with Section 97 of the Insurance
(Motor Vehicle) Act.
[5]
On December 20, 2006 a claims representative from the Insurance
Corporation of British Columbia wrote a without prejudice letter to Wawanesa
Insurance Company in Red Deer, Alberta in relation to the insured Kyle Lee Dion
quoting the Alberta plate number of the other vehicle from the accident. The
body of the letter is as follows:
We are investigating the above
claim. Please provide us with your views on liability at your earliest
convenience.
[6]
The letter was purportedly sent by Paula LaFontaine.
[7]
On January 2, 2007 Elizabeth McInnis of Coast Claims Service Ltd. wrote
to Paula LaFontaine on behalf of their insured, Rita Gouda as follows:
Further to your correspondence directed to the Wawanesa
Mutual Insurance Company on December 20, 2006, we are attending to this matter
on their behalf.
From our investigation to date,
our insured driver, Kyle Dion was travelling east on 100th Avenue in
Surrey, B. C. when your insureds vehicle pulled out from a stop sign,
colliding with our insureds van. Therefore, we believe that your insured
would be 100% at fault for this accident. Our insureds vehicle was found to
be a constructive total loss, and we will be providing you with subrogation
documentation in due course.
[8]
The Writ of Summons and Statement of Claim were issued on December 17,
2007.
[9]
The statement of defence was filed on August 11, 2008.
[10]
On October 10, 2008 defendants counsel forwarded a letter to
plaintiffs counsel enclosing the defence list of documents dated October 8,
2008.
[11]
From that list of documents the plaintiffs seek the following documents
over which the defendants have claimed privilege:
1. Statement
of Ziad Bader taken on December 7, 2006.
2. Statement
of Kyle Dion taken on December 7, 2006.
3. A
letter titled Confidential Report from Coast Claim Services Ltd. to Wawanesa
Mutual Insurance Company dated December 15, 2006.
4. A
statement from Susan Howey dated March 27, 2007.
Discussion
[12]
Both parties rely upon the Court of Appeal decision of Hamalainen v.
Sippola 62 B.C.L.R. (2d) 254, [1992] 2 W.W.R. 132 1991 [B.C.J. No., 1364] for
the two part test set out therein by Wood, J.A on behalf of the Court where at
paragraph 17 he said:
17. Regardless of the terminology used to apply it, the
correct rule, as adopted in Voth, Voth Brothers Construction (1974)
Ltd. and North Vancouver School District No. 44, 29 B.C.L.R. 114, [1981]
5WWR 91, 23 C.P.C. 276 (C.A.), is that stated by Barwidk C.J. of the Australian
High Court in Grant v. Downs (1976), 135 C.L.R. 674 at 677:
Having considered the decisions, the writings and the various
aspects of the public interest which claim attention, I have come to the
conclusion that the Court should state the relevant principle as follows: a
document which was produced or brought into existence either with the dominant
purpose of its author, or of the person or authority under whose direction,
whether particular or general, it was produced or brought into existence, of
using it or its contents in order to obtain legal advice or to conduct or aid
in the conduct of litigation, at the time of its production in reasonable
prospect, should be privileged and excluded from inspection.
18. Any attempt to apply the rule when determining a
claim of privilege with respect to a document necessarily requires that two
factual determinations be made:
19. (a) Was litigation in reasonable prospect at the
time it was produced, and
20. (b) If so, what was the dominant purpose for its
production?
(a) Was litigation in reasonable prospect at the time
these documents were produced?
21. The onus is on the party claiming privilege to
establish on a balance of probabilities that both tests are met in connection
with each of the documents falling within the claim.
…
22. I am not aware of any case in which the meaning of
in reasonable prospect has been considered by this court. Common sense
suggests that it must mean something more than a mere possibility, for such
possibility must necessarily exist in every claim for loss due to injury
whether that claim be advanced in tort or in contract. On the other hand, a
reasonable prospect clearly does not mean a certainty, which could hardly ever
be established unless a writ had actually issued. In my view, litigation can
properly be said to be in reasonable prospect when a reasonable person,
possessed of all pertinent information including that peculiar to one part or
the other, would conclude it is unlikely that the claim for loss will be
resolved with it. The test is not one that will be particular difficult to
meet.
…
(b) What was the dominant purpose for which the documents
were produced?
23. 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.
…
26. 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.
[13]
I now turn to a consideration of the evidence before me to make a
determination as to which, if any, of these documents are to be protected by
privilege or whether in fact there is no privilege attaching and the documents
are to be provided to the plaintiff applicant.
[14]
In that regard I quote from the affidavit of Margaret Veldman, sworn
July 13, 2010 in these proceedings. Firstly Ms. Veldman deposes that she is a
claims manager at the Wawanesa Mutual Insurance Company in the City of Edmonton
and has person knowledge of the facts and matters deposed to in her affidavit.
She also deposes that the Wawanesa was the insurer for the defendants in this
action at the time of the alleged accident. She goes on to say in her
affidavit:
4. I am aware that the notice of the claim was
provided to the Wawanesa on November 24, 2006 and that the initial information
received was that the other driver left a stop sign and struck the insured
driver.
5. I am aware that the adjuster employed with
Wawanesa, Dana Vandenberg was handling the file when the notice of the claim
was received by Wawanesa [sic] the time and had received further details from
Kyle Dion over the telephone regarding the accident. His information confirmed
that he was travelling east on 100th Avenue and the other person was
travelling south on Semiahmoo Road facing a stop sign.
6. I was then assigned to handle the claim relating
to the motor vehicle of November 15th, 2006 involving the Plaintiff on
November 29, 2006.
7. I am aware that the Wawanesa was contacted by the
Insurance Corporation of British Columbia (ICBC) on November 29th,
2006, by a person who identified themselves as Charlene whose phone number was
(604) 583-8634. The representative of ICBC advised that ICBC insured the
vehicle operated by the Plaintiff was seeking recovery for property damage to
the vehicle operated by their insured and that their insured driver was injured
in the motor vehicle accident. The representative of ICBC also indicated that
the Plaintiff, Mr. Pshelensky had retained legal counsel to pursue recovery of
their personal injuries from our insured and his legal counsel was from the
firm Lacroix Mathers.
8. Following receipt of
the information that the Plaintiff had retained counsel and the claim by ICBC,
the Wawanesa retained Coast Claims Services Ltd. on November 29, 2006 in
Vancouver as it was apparent that both the ICBC and Mr. Pshelensky would likely
be pursuing litigation to recover alleged damages against our insured. Coast
Claims was retained to investigate the circumstances on the basis that there
were claims being made by both ICBC and the Plaintiff that could result in a
legal action by either of those parties. At that point any further information
to be gathered was for the purposes of defending any claims advanced by the
driver or occupants of the vehicle operated by Mr. Pshelensky.
9. The only purpose of
retaining Coast Claims Services Ltd. on this file was to investigate for the
purpose of defending any of the claims being alleged and to obtain statements from
the driver of the insured vehicle, Mr. Kyle Dion and a statement from his
passenger, Ziad Badr. In addition to obtaining statements, instructions were
provided to Coast Claims Services Ltd. to attend at the scene of the accident
and to take photographs for the purposes of providing this information to legal
counsel that would be retained by the Wawanesa should the claims by ICBC or the
Plaintiff, Nikolay Pshelensky be pursued.
10. I can confirm the
Wawanesa sent this file to Chomicki Baril Mah LLP to act on this matter on
November 20, 2007.
[15]
The defendants solicitor provided a list of documents to the
plaintiffs solicitor that was dated October 8, 2008. All four of the sought
after documents by plaintiffs were listed as documents and accordingly were
not appropriately identified as statements of the individuals from whom they
were taken or as a report from an independent adjuster.
[16]
With respect to the first two documents at issue, that being the
statements of Ziad Badr and Kyle Dion both taken on December 7, 2006 privilege
is claimed on the following grounds:
1. The original or
copies of documents which are privileged as they are documents which were
produced or brought into existence either with a dominant purpose of its
author, of the person under whose direction it was produced or brought into
existence, of using it or its contents in order to seek, formulate or give
legal advice or legal assistance, or to conduct or aid in the conduct of
litigation or to provide information to the solicitors for the defendant after
this litigation commenced or at a time when there was a reasonable prospect of
litigation.
The other ground of privilege
claimed is that the originals are copies of documents that are privileged as
they are documents which relate to the seeking, formulating or giving of legal
advice or legal assistance generally.
[17]
It is interesting to note in Para 9 of Ms. Veldmans affidavit that she
includes the statements of Dion and Badr with photographs of the scene for the
purposes of providing information to legal counsel should the claims of ICBC
and Pshelensky be pursued yet the plaintiffs have already disclosed the
photographs taken and listed them in part I of the plaintiffs list of
documents. Accordingly, I take from that observation that the plaintiffs had
not yet made a determination about the statements or photographs at the time
but rather made a determination to claim privilege over the statements much
later.
[18]
I take the view that the two statements taken from the driver and
passenger of the defendant motor vehicle were essentially taken to determine
the cause of the accident and, of course, to determine who might be at fault.
[19]
In my view the defendants rely upon the fact that the plaintiff retained
counsel early on in these proceedings or shortly after the accident to suggest
that litigation was contemplated. I do not agree with this proposition for in
my view it was far too early in the proceedings to make a final determination
as to whether or not litigation would be inevitable.
[20]
I further take the view that the statements taken from Badr and Dion
were so close to the time of the accident that they were very early in the
continuum before the dominant purpose became one of furthering the course of
litigation. Accordingly I find that both statements are not privileged and
should be released to the plaintiff applicant.
[21]
Similarly I am of the view that the third document sought, being a
letter titled Confidential Report from Coast Claim Services Ltd. to Wawanesa
Mutual Insurance Company dated December 15, 2006 is still at the very earliest
part of the continuum. Accordingly that document is also producible.
[22]
The last document sought is a statement from Susan Howey dated March 27,
2007. It is said that Ms. Howey was an independent witness at the scene of the
accident. I take the view that in this case the statement taken from Ms. Howey
was too far along the continuum to be still in the stage of investigation.
Rather, by the time the statement had been taken the dominant purpose was that
of furthering the course of litigation and accordingly that statement is not
producible.
[23]
In this case the plaintiff has been mostly successful in obtaining the documents
over which privilege had initially been claimed; accordingly I award the
plaintiff 75% of its costs of this application.
Master Taylor