IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100429

Docket: M081915

Registry:
Vancouver

Between:

Aaron Jeffrey
Cliff

Plaintiff

And:

Maureen Evelyn
Dahl, Aggressive Towing Ltd.,

and Terry
Snelgrove

Defendants

Before:
The Honourable Mr. Justice N. Smith

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The defendant appeals from a decision of a Master who
dismissed an application to compel production of statements taken on behalf of
plaintiff’s counsel from three witnesses.

[2]            
This action concerns a motor vehicle accident that took place on January
21st, 2007. Plaintiff’s counsel states in an affidavit that he was retained on
or about February 6th, 2007 and retained an investigator who shortly thereafter
met with three witnesses and obtained statements from them. Counsel states, in
his affidavit at para. 5:

5.         The retained
investigator took statements from multiple witnesses which he provided to me
for the purpose of preparing for the plaintiff’s case in this action.

[3]            
Those witnesses apparently would not cooperate with requests from ICBC
adjusters or investigators to give statements. This action was begun on May
5th, 2008 more than a year after the statements were taken.

[4]            
The application came on before the Master on October 23rd, 2009. In
response to that application, counsel for the plaintiff stated in an affidavit:

The defendant is seeking
production of information that forms part of my solicitor’s brief and is
privileged.

[5]            
The Master referred to the leading authority of Hamalainen v. Sippola,
[1991] B.C.J. No. 3614 (B.C.C.A.) and in particular the two-part test set out
in that case:

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:

(a)        Was litigation in reasonable prospect at the time
it was produced, and

(b)        If so, what was the
dominant purpose for its production?

[6]            
The defendant here does not dispute that the first branch of the test is
satisfied. The issue is the second branch:  the dominant purpose test.

[7]            
The Master correctly decided that a bald assertion of privilege as
contained in the affidavit of plaintiff’s counsel was not determinative, but
stated:

[7]        However, I think the
other aspects which the Court asks affiants to give us are other indicia
of facts or circumstances that will help the Court decide whether on balance
the second stage or portion of the test has been met and there is some
assistance from Mr. Maryn’s affidavit. He gives some chronology that when the
accident happened January 21st, 2007 when he was retained which is February
6th, I am going to say roughly two weeks after the accident and that on
February 18th, about nine days later, he retained an investigator who then went
out and met with these witnesses and took statements.

[8]            
The Master referred to the decision of Mr. Justice Hood in Catherwood
v. Heinrichs, [1995] B.C.J. No. 2658 in which he stated at para. 25:

[25]      … I find that the
dominant purpose for their production falls within the classic phrase "to
obtain legal advice or to conduct or aid in the conduct of litigation" ….

[9]            
The Master then said at para. 10:

[10]      Although every case
turns on its facts, in this particular case the obtaining of this information
by Mr. Maryn on behalf of Mr. Cliff even though fairly early in the
relationship was obtained well within the terms of that phrase, namely, to
obtain legal advice, to conduct or aid in the conduct of litigation.

[10]        
The defence in this case relies on Hamalainen, supra, and other
authorities which say that litigation must be shown to be the dominant purpose
and in most cases it cannot be the dominant purpose until the party claiming
the privilege has reached a certain point in its initial investigation and
enquiry.

[11]        
This was recently described by Master Caldwell in Celli v. White,
2010 BCSC 313 at para. 15 where he says:

[15]      I do not interpret Hamalainen,
and particularly paragraphs 22 and 26 of that decision, as saying that
litigation is a reasonable prospect when an adjuster, absent investigation or
enquiry, arbitrarily determines that he or the party whom he represents are
determined to drive the matter to litigation and trial. In like fashion I do
not interpret Hamalainen as determining that once such a decision has
been made, it can be used to support a claim of litigation privilege for
everything which follows. Wood J. said in Hamalainen 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 of
the other, could conclude it is unlikely that the claim for loss will be
resolved without it”. In my view that requires, by implication, basic
investigation; it requires, by implication, enquiry; it requires, by
implication, bona fides.

[12]        
Before going further, I need to consider the standard of review which I
must apply in reviewing the Master’s decision. The oft-quoted authority is Abermin
Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1060 which states that
an appeal from a Master’s order in a purely interlocutory matter should not be
entertained unless the order was clearly wrong. However, where the ruling of
the Master raises questions which are vital to the final issue in the case that
results in one of those final orders which a Master is permitted to make, a
re-hearing is the appropriate form of appeal.

[13]        
The defendant relies on Coast Hotels Limited v. Royal Doulton Canada
Limited, 2000 BCSC 525 which involved an appeal from a Master’s decision
regarding production of certain documents. In that case, Mr. Justice Hood said
at para. 12:

[12]      … Many a case has been
won or lost on the basis of the contents of the documents … a process in use
long before the equally important process of examination for discovery was
developed …. I do not consider the Master’s order pertaining to the production
of documents to be purely an interlocutory matter, since it may well affect the
outcome of the proceeding, or raise a question vital to the final issue of the
case.

[14]        
In those circumstances, Mr. Justice Hood considered the matter to be an
appropriate one for re-hearing.

[15]        
There is however in my view a distinction between witness statements
such as we have here and documents.

[16]        
Defence counsel says these witness statements, having been taken within
a very short time after the accident, are the best evidence.

[17]        
In fact, the witness statements are not evidence at all and in that
sense they are different from documents which are capable of becoming evidence
in and of themselves.

[18]        
The evidence of these witnesses is what they will eventually give under
oath. If they are uncooperative, the defence has, and has had since the
commencement of the action almost two years ago, the opportunity to seek an
order for their examination under oath.

[19]        
On the question of the test, I will follow the approach taken by Mr.
Justice Williams in Joubarne v. Sandes, 2009 BCSC 1413 where he says at
para. 14:

[14]      Nevertheless, even
though I will treat the decision as interlocutory in character, this Court is
not necessarily obliged to defer to the master’s conclusion. If the decision is
one of straightforward discretion, then, certainly, substantial deference is
required. However, if the decision of the master involves a question of law,
the standard of review must be correctness even though the matter involves an
interlocutory issue such as the production of documents.

[20]        
He then also quotes from the decision of Mr. Justice Fraser in Northland
Properties Ltd. v. Equitable Trust Co., 71 B.C.L.R. (2d) 124 (S.C.) which
reads in part:

…A decision involving an
exercise of discretion always involves consideration of the facts and rarely
has implications for the general law. The "clearly wrong" standard
recognizes this and is based on practical considerations having to do with the
proper allocation of court time. A decision on a point of law, by contrast, has
implications for other cases and other litigants. To adopt the "clearly
wrong" standard on an appeal from a decision on a point of law would mean that
an incorrect (but not clearly wrong) interpretation by a Master of a point of
law would stand and presumably be binding on other Masters but would remain
vulnerable to a different interpretation by a judge, in a later case.

[21]        
I take those authorities when applied to this case to mean that had the
Master applied the wrong test of whether these documents were producible or
not, that would be a question of law which I could and should review on the
standard of correctness. However, the Master in this case did apply the correct
test, that is, the two-part test in Hamalainen, supra, and concluded on
the basis of the evidence before him that the dominant purpose was for
litigation. In my view, I can only interfere with that conclusion if I am of
the view that it is clearly wrong.

[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.

[26]        
I infer from the material before me that the Master reviewed the
evidence and found it sufficient to establish a dominant purpose. Whatever
decision I might have made had the matter come before me, I cannot say that the
Master was clearly wrong.

[27]        
Those are my reasons for judgment and so the appeal is dismissed.

“N.
Smith J.”