Conor Vaughan Wyche

The appellant insurer appealed a master’s order compelling answers to discovery refusals and production of documents from its claims file in litigation arising from a propane facility explosion and a coverage dispute.

The insurer asserted solicitor-client privilege and litigation privilege over memoranda, meeting notes, and claims file materials generated during the coverage investigation.

The court held that an appeal from a master’s decision is not a de novo hearing and is limited to correcting errors of law, wrong principles, or palpable and overriding errors.

The insurer failed to establish an evidentiary basis for either solicitor-client privilege or litigation privilege because no affidavit evidence demonstrated that the documents contained legal advice or were created for the dominant purpose of litigation.

The master’s order requiring production was therefore upheld.

On a procedural motion in a simplified rules action, the moving parties sought to rely on transcripts and undertakings generated from cross-examinations conducted on affidavits in relation to a certificate of pending litigation motion.

The court reviewed Rules 1, 2, 42, and 76, prior authorities on irregularities and fresh steps, and the statutory framework governing certificates of pending litigation.

The court held that, given the nature of the interim land-related relief and the parties' conduct, use of the existing transcripts should be permitted on the main motion.

The withdrawn refusals motion and the subsidiary motion costs were reserved to the judicial officer hearing the certificate motion.