IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Jones v. West Shore Parks and Recreation Society, |
| 2015 BCSC 1837 |
Date: 20151009
Docket: 13-3136
Registry:
Victoria
Between:
Nancy Jones
Plaintiff
And:
West Shore Parks
and Recreation Society, City of Langford,
City of Colwood, District of Highlands, Disrict of Metchosin,
Capital Regional District and Town of View Royal
Defendants
Before:
Master Bouck
Reasons for Judgment
Counsel for the Plaintiff: | R.S. Sahota |
Counsel for the Defendants: | J.D. Martin |
Place and Date of Hearing: | Victoria, B.C. September 29, 2015 |
Place and Date of Judgment: | Victoria, B.C. October 9, 2015 |
The Application
[1]
The plaintiff seeks an order for broad document disclosure by the
defendants as well as two non-parties. Much of the relief sought was resolved by
agreement through counsel. The only issue before the court is whether the
defendants ought to disclose two documents over which litigation privilege is claimed.
Those documents are described in the defendants list of documents as Claimspro
Inc. Independent
Adjusters Preliminary Report dated September 10, 2013 and Claimspro Inc. Independent Adjusters Confidential
Report #1 dated October 31, 2013.
[2]
The plaintiffs notice of application does not specifically identify
these two documents as those sought to be disclosed. For the sake of certainty
in the court record, the order made in these reasons relates to item 1(h) of
the notice of application filed September 25, 2014. All of the other relief
sought in that notice of application that is not otherwise the subject of an
agreement between counsel is dismissed.
The Facts
[3]
This is a personal injury action.
[4]
As set out in the defendants application response, Ms. Jones alleges
that on Saturday, March 16, 2013, while walking behind the home players bench
at the Bear Mountain Arena, a portion of the protective glass separating the
home bench from the spectator seating area collapsed on her causing physical injury.
[5]
The defendants deny liability for the incident and assert that any injuries
were the result of the plaintiff wrongly holding onto the glass partition while
attempting to climb into the viewing stands.
[6]
Both the incident and its immediate aftermath were witnessed by
employees of the defendant West Shore Park and Recreation (West Shore). An
incident report was completed by one of those employees and submitted to West Shore.
Consequently, on March 18, 2013, West Shores operation manager discussed the
matter with staff, attended the arena and took photographs of the scene. No
further steps were taken in the matter by any of the named defendants.
[7]
Then, on September 5, 2013, the City of Colwood (Colwood) received a
letter from plaintiffs counsel which stated:
Please be advised that I have been retained to act on behalf
of Nancy Jones as a result of injuries she sustained when a sheet of
protective glass fell on her at the Bear Mountain Arena, in the City of
Colwood, Province of British Columbia on March 16, 2013.
Pursuant to section 286 of the Local Government Act,
RSBC 1996, c. 323, we are hereby notifying you of a personal Injury claim
against the City of Colwood for damages sustained by Ms. Jones.
Kindly admit service upon the copy of this letter and return
to our office.
Please bring this letter to the attention
of your insurer immediately and have them contact our offices within 30 days of
the date of this letter.
[8]
Colwood did contact its insurer who in turn retained an independent
adjuster, Ms. Mary Ann Haire. Ms. Haire deposes that she was
instructed to conduct a liability investigation for a contentious claim being
brought by [the plaintiff]. Ms. Haires retainer commenced September 10,
2013. The defendants or their agents provided Ms. Haire with the West Shore
incident report prepared in March 2013 along with the photographs taken at
the time and information obtained from witnesses to the incident. Ms. Haire
does not say when this information was provided to her. Both the incident
report and some photographs have been disclosed under Part 1 of the defendants
list of documents.
[9]
On September 11, 2013, the plaintiff commenced this action. The
defendant West Shore was served with the notice of civil claim on September 16,
2013. The evidence does not disclose when the other defendants were served.
[10]
Ms. Haire further deposes that she was advised [but not by whom] at the
commencement of [the] investigation that there was an alternative to the
version of the incident to that described by the plaintiff. As such, it was
immediately obvious that liability for the incident would be contentious and
that the sole and dominant purpose of my retainer was to investigate this
litigated claim to gather evidence to assist in the defence of the litigation
that was being commenced.
[11]
Ms. Haire proceeded to conduct interviews of individuals who either
witnessed the incident or attended to the plaintiff or had some involvement in
the inspection and maintenance of the arena. The affidavit evidence does not
say when exactly each of these steps was taken. Ms. Haire interviewed Ms. Jones
on October 23, 2013, with plaintiffs counsel present, but no statement
was recorded.
[12]
There is no evidence whatsoever from the individual who instructed
Ms. Haire.
[13]
Ms. Haire is the creator of documents 4.1 and 4.5, both of which, she
says, were provided to the defendants insurer for the sole and dominant
purpose of assisting in the defence of the various issues
raised by the plaintiff
in the litigation.
[14]
The defendants response, in which liability for the incident is denied,
was filed and delivered in the spring of 2014.
Discussion
[15]
In Beer v. Nickerson, 2010 BCSC 718 (appvd. in Smith v. Air
Canada, 2014 BCSC 1648), I attempted to summarize the law to be applied
on this type of application:
[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 documents 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.
[16]
Further, litigation privilege must be established document by document: Keefer
Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180.
[17]
The defendants rely primarily on Sauvé v. ICBC, 2010 BCSC 763, a
personal injury action in which two independent adjusters reports prepared in
advance of litigation were found to be protected from disclosure to the
opposing party. The court found that by the time the reports were prepared, the
author:
had concluded that, litigation
was a near certainty. She not only knew at that time, the severity of the
accident, the severity of the injuries and the involvement of an unidentified driver,
but she also knew what the witnesses had to say.
(Para.
33)
[18]
The court also found that the reports were created for the dominant
purpose of assisting in the defence of the claim:
[37]
In my view, when deciding whether the reports were prepared for the dominant
purpose of litigation I have to consider not only what was known by
Mr. Taylor [the instructing adjuster] and communicated to Ms. Webber
[the independent adjuster]; I also have to consider what Ms. Webber knew
when she prepared the reports, as well as the nature of the reports.
Ms. Webber has deposed that when she prepared the reports, she believed
that the dominant purpose for their creation was litigation. She came to that
conclusion being aware of the information that the witnesses could give with
respect to the circumstances of the accident. According to Ms. Webber, the
reports consist of her descriptions of the witness, her impressions or opinions
concerning their credibility and her own analysis of how the evidence of the
various witnesses matched or conflicted. While it might be possible that such
information might assist ICBC at the investigation stage, I am of the view that
any such use of the documents would clearly be secondary to their use in assisting
counsel in the conduct of the action. I am, therefore, satisfied that the
reports were created for the dominant purpose of litigation and attracted
litigation privilege.
(Para.
37)
[19]
Applying the law to the evidence presented here, I find that the defendants
have not met the necessary onus with respect to item 4.1, but have properly
asserted litigation privilege with respect to item 4.3.
[20]
The evidence of Ms. Haire falls short in demonstrating that litigation
was a reasonable possibility when document 4.1 was created. According to the
evidence, the defendants knew very little about the plaintiffs claim as of
September 10, 2013. The defendants did not know the extent of the
plaintiffs injuries or even what damages were being claimed. The fact that
there might be differing versions of the incident does not automatically mean
that there is a reasonable prospect of litigation. In any event, it is not at
all clear from the evidence as to when Ms. Haire became aware of this
different version. The West Shore incident report, prepared in March 2013,
only records the plaintiffs version of the incident.
[21]
Moreover, unlike in Sauvé, there is no evidence from Ms. Haire or
her principals setting out the precise reasons why litigation was a reasonable
possibility at that time of the retainer. Ms. Haire describes the retainer as,
at least initially, one of investigatory in nature. I find that a reasonable
person being aware of the circumstances as of September 10, 2013, would not
conclude that the claim could only likely be resolved through litigation.
[22]
Even if I am wrong on that aspect of the test, the defendants have not
shown that the dominant purpose of creating the preliminary report was for use
in litigation.
[23]
The September 5, 2013 letter from plaintiffs counsel does not threaten
or even hint at the possibility of litigation. Ms. Haire references the notice
of civil claim as forming a basis for her investigations into liability for the
incident but that document could not have come into her possession until September 16,
2013 at the earliest. The evidence presented by the defendants on the question
of dominant purpose is far different than that before the court in Sauvé. I
find that on the continuum described in the authorities, the September 10, 2013
report was created during the investigatory stage and not for the dominant
purpose of assisting in the defence of the plaintiffs claim.
[24]
In contrast, litigation was underway by the time document 4.3 was
created. Most of the events described by Ms. Haire in asserting the dominant
purpose claim had occurred by October 31, 2013. This document need not be
disclosed to the plaintiff.
[25]
In the result, the defendants are ordered to produce to the plaintiff by
October 30, 2015, the Claimspro Inc.
Independent Adjusters Preliminary Report dated September 10, 2013.
[26]
Costs of the application will be in the cause.
C.P.
Bouck
Master
C.P. Bouck