IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131220

Docket: S025450

Registry:
Chilliwack

Between:

Sarina Barbara
Derksen

Plaintiff

And

Canada
Safeway Limited and Clearbrook Town Centre Ltd.

Defendants

Before:
Master Caldwell

In
Chambers

Reasons for Judgment

[1]            
The plaintiff seeks production of three documents over which the defence
claims privilege.

[2]            
The plaintiff alleges that in December of 2010 she suffered injuries and
damage when her arm was caught in an entry door at the Safeway store on South
Fraser Way.

[3]            
The incident was reported to the store authorities and communications
began between the plaintiff and the store manager, Mr. Edmondson.

[4]            
By February of 2011 the plaintiff had retained counsel. In early March
of 2011 Ms. Freestone, a liability claims examiner, began communicating
with plaintiff’s counsel on behalf of the defendant Safeway; her written
requests for information and position on possible settlement were ignored until
December of 2011 when plaintiff’s counsel advised that he was obtaining
clinical records and the like and would be providing relevant portions of them
in due course.

[5]            
Having received nothing further from plaintiff’s counsel by mid-January
of 2012 Ms. Freestone retained a private investigator to “conduct inquiries”;
those inquiries resulted in reports dated January 19 and February 1 of 2012.

[6]            
Ms. Freestone deposes that she retained the investigator solely for
purposes of litigation which she felt “was certain to be commenced”. The basis
of this belief is at least somewhat unclear; there is no evidence in her
material to indicate that she had done anything to investigate the incident
other than to write 3 letters to plaintiff’s counsel requesting material and a
settlement position.

[7]            
In her material, Ms. Freestone does indicate that the plaintiff’s
complaint regarding migraine headaches struck her as “odd” given that the
allegation was that her arm had been caught in an automatic door. In those
circumstances, Ms. Freestone concluded that this claim for migraine
medication in the context of an injured arm indicated that the plaintiff was
probably suffering from a pre-existing condition and that she was claiming
“improperly” to be compensated by Safeway. She appears to have reached that
conclusion in January or February of 2011, before the plaintiff retained
counsel and before she wrote to plaintiff’s counsel requesting documents and a
settlement position.

[8]            
In my respectful view, applying the tests as outlined in the cases of British
Columbia v. Canadian Forest Products Ltd., (1999) 37 C.P.C. (4^th)
61; Hamalainen (Committee of) v. Sippola (1991) 62 B.C.L.R. (2d) 254 and
Keefer Laundry Ltd. v. Perllerin Milnor Corp., 2006 BCSC 1180, there was
no reasonable basis for Ms. Freestone to have determined that litigation
was a reasonable prospect in January or February of 2011. Had the reports been
commissioned at that point no claim of privilege could have succeeded.

[9]            
The objective “reasonableness” as to litigation becoming a reasonable
prospect however changed over the course of 2011. Ms. Freestone actively
pursued information and settlement positions from plaintiff’s counsel; she
received not even an acknowledgement of the request for some eight months or
more. Even after the request was acknowledged, a further five-six weeks of silence
followed. In the context of that overall delay and lack of appropriate
response, Ms. Freestone says at paras. 16 and 17:

…At this point, my sense was that
litigation was certain, that any prospect of an early and reasonable resolution
of the claim was exhausted and that if we did not take steps to ascertain
information to defend the litigation, which I then felt was certain, the
opportunity to do so would expire or significantly diminish…In that context, on
January 12, 2012 I retained a private investigator to conduct inquiries. The
investigator was retained to obtain information for the sole purpose of
litigation

[10]        
I am satisfied that at the time of the commissioning of the inquiries
and reports Ms. Freestone was subjectively satisfied that there was a reasonable
prospect of litigation, that that belief was objectively reasonable in the
circumstances and that the dominant purpose of obtaining the reports was for
the purpose of preparing for and conducting that litigation.

[11]        
I do note that in later correspondence dated March 1, 2012 Ms. Freestone
again referred to documents and requested a settlement proposal. As of that
date the defendant had still not received any of the requested documents. In my
view that correspondence must be seen as indicating no more than that at that
time the defendants were still willing to talk but were proceeding to protect
themselves; in short, while praying for peace, the defendants were preparing
for war.

[12]        
Similar comment can be made regarding the defendants’ request for time
for investigation after being served with the Notice of Civil Claim. The
defendants may well have sought time to investigate; that request was made at a
different point in time and in the context of different information than had
previously existed. The fact of a later investigative stage does not change the
character of the earlier reports which were obtained in different circumstances
and for a different purpose based on the then available information.

[13]        
The defendants’ claim of litigation privilege over the two reports
succeeds; the plaintiff’s application regarding those two reports is dismissed.

[14]        
The remaining issue involves a statement provided to Ms. Freestone
by an unnamed individual on April 11, 2012. According to Ms. Freestone,
she was contacted by this person who claimed to have information regarding the
plaintiff and her claim. An interview was arranged and a transcript created. The
defence now claims that the interview was done and the statement created solely
for the purpose of litigation.

[15]        
There is no property in a witness, particularly a lay witness. Based
upon the material before me, the individual has potentially relevant,
potentially controversial information, about the plaintiff and her claim. The
statement provided by this lay witness may well form an important part of cross
examination. Failure to disclose such a statement denies plaintiff the
opportunity to investigate the allegations contained therein and to challenge
the veracity and motives of the informant.

[16]        
No authority was cited to me to support the defence position of
privilege as regards the statement and the identity of the witness.

[17]        
The defendants are ordered to produce to counsel for the plaintiff an
unredacted copy of the statement dated April 11, 2012 which has been listed as
privileged item 4.3 of the defendants’ List of Documents.

[18]        
Success has been divided; costs will be in the cause.

“Master Caldwell”