In a motor vehicle accident tort action scheduled for jury trial, the defendants brought a motion seeking production of a draft Form 1 assessment relating to attendant care benefits under the Statutory Accident Benefits Schedule.
The document had been inadvertently disclosed by the plaintiff’s counsel during production of the accident benefits file, after which the plaintiff asserted litigation privilege.
The court held that litigation privilege did not apply because the dominant purpose of the occupational therapist’s assessment was to support a statutory claim for accident benefits rather than to prepare for litigation.
The plaintiff could not retroactively convert the document into privileged litigation material after receiving an unfavourable assessment.
The motion was granted and the document ordered produced, though admissibility at trial remained within the trial judge’s discretion.
