IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150507

Docket: S027573

Registry:
Chilliwack

Between:

Sarah Ann Meyer

Plaintiff

And

Daniel Joseph Lahm

Defendant

Before:
Master Caldwell

In
Chambers

Reasons for Judgment

[1]            
This is an application by the plaintiff for production of various
defence documents which have been listed as privileged documents 4.1 through
4.8.

[2]            
The defence claims litigation privilege over all of the enumerated
documents.

[3]            
The plaintiff was involved in a motor vehicle accident on July 21, 2012
and retained counsel approximately a month later. The Notice of Civil Claim was
filed on February 28, 2014; it was served shortly thereafter and a Response
followed in due course admitting liability for the collision but contesting
injury, damages and causation.

[4]            
The plaintiff had pre-existing scoliosis and was undergoing
physiotherapy as a result of that condition at the time of the motor vehicle
accident.

[5]            
The defence alleges in its material that the collision was very minor in
nature and that no emergency services attended. By August 29, 2012 a committee
of the insurer had determined that, at least for their purposes, this collision
met their self-created criteria to be classified as a Low Velocity Impact.

[6]            
No evidence is provided by the plaintiff to dispute the allegation that
this was a minor impact collision.

[7]            
I am unaware of when, if ever, the plaintiff returned to work. It is
clear from the material that she remained off work until at least July of 2013
as there is reference to a note produced by her doctor on the 17^th
of that month indicating that she was still unable to return to work as a
result of injuries suffered in the motor vehicle accident.

[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.

[11]        
Addressing the two part test, I must address whether litigation was in
reasonable prospect at the time the documents were created. That test is not
met by an adjuster simply declaring that there was an accident, the plaintiff
is claiming damages and has a lawyer, therefore we are going to litigation. There
must be an objectively defensible basis for the assertion that there was a
reasonable prospect of litigation. Would a reasonable person, possessing the
available facts, come to the conclusion that litigation was likely?

[12]        
In this case I am satisfied that by the time the first of the documents
at issue in this application came into existence, the answer to that question
would have been yes.

[13]        
The first document came into existence in March of 2013, more than seven
months after the accident. The accident itself is alleged to have been very
minor and that allegation is not challenged in the evidence before me. The
plaintiff had been off work entirely since the time of the accident. None of
the evidence before me indicates any objective explanation or basis for the
plaintiff’s ongoing complaints being related to the accident.

[14]        
The above does not mean that, in fact, the plaintiff’s problems were and
are not serious and directly related to the accident; it means only that a
reasonable person, reviewing the information as it existed at the time, could
reasonably conclude that litigation would likely be necessary to resolve the
matter by proof of that fact.

[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.

[17]        
Success has been divided on this application; however, it is clear that
none of the documents sought would have been produced without this application
in spite of the fact that the basis for the order of production of documents
4.1 and 4.8 was founded in the evidence produced by the defence affiant. Costs
will be to the plaintiff in the cause.

“Master
Caldwell”