Court File and Parties

COURT FILE NO.: 00-CV-201487CM Div. Ct. File No. 524/02 DATE: 2003-09-08

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: LAWRENCE GARRATT, Plaintiff (Moving Party) A N D: CGU INSURANCE COMPANY OF CANADA, Defendant (Respondent)

BEFORE: Then J.

COUNSEL: Pamela Blaikie, for the Plaintiff (Moving Party) Seth J. Kornblum, for the Defendant (Respondent)

E N D O R S E M E N T

1The plaintiff seeks leave to appeal to this court from the decision of Chapnik J. with respect to both branches of Rule 62.04.

2In the context of an action involving a motor vehicle accident and the plaintiff’s attempts to secure accident benefits, the plaintiff had brought a motion for a further and better Affidavit of Documents and for production of various documents before Master Birnbaum. The defendant had claimed litigation privilege over some of these documents.

3The Master held that litigation privilege commenced no earlier than June 7, 2000, the date on which plaintiff’s counsel threatened to commence an action for bad faith. The Master ordered the delivery of a further and better Affidavit of Documents, including all documents not protected by litigation privilege from June 7, 2000.

4On appeal, Chapnik J. held that litigation privilege commenced on November 26, 1999 referable to the date on which the Plaintiff applied for mediation at the Financial Services Commission of Ontario. She went on to hold that the defendant had satisfied the onus with respect to all documents prepared after November 26, 1999. In coming to this conclusion, specific reliance was placed on the affidavit of the defendant’s lawyer, Jamie Fox, which asserted that all the documents were “produced for the purpose of defending the company’s legal position.”

5The plaintiff submits that Chapnik J. erred in accepting the bald assertion of Jamie Fox as sufficient evidentiary basis for the defendant to meet its onus to establish that the dominant purpose of the documents was litigation. The plaintiff submits that in the absence of evidence describing how each document over which privilege is claimed meets the dominant purpose test, the documents should be ordered to be produced. (See: Davies v. American Home Assurance, [2001] O.J. No. 960 (S.C.J.); Davies v. American Home Assurance, 2002 ONSCDC 62442, [2002] O.J. No. 2696 (Div. Ct.)).

6In my view, Jamie Fox, the defendant’s lawyer, has merely stated his conclusion that the documents were produced for the purpose of litigation without offering the required evidentiary basis upon which either the plaintiff or the court may delve into the validity of his opinion.

7I agree with the Plaintiff that the decision of Chapnik J. specifically conflicts with the authorities cited above and generally conflicts with the approach outlined by the Court of Appeal in General Accident Assurance Co. v. Chrusz (1999), 1999 ONCA 7320, 45 O.R. 321.

8The defendant submits that even if the instant decision can be said to conflict with Davies, the jurisprudence is nevertheless sufficiently well established as to obviate the need for further elaboration. I agree with the plaintiff that it is desirable that leave be granted. The invocation of litigation privilege is a matter of everyday occurrence and accordingly it seems obviously desirable that the principles underlying this privilege be clearly developed in a variety of situations. This approach is particularly apt in the circumstances of this case in view of the differing approaches as to the date of the commencement of litigation privilege outlined in paragraph 7 (October 10, 2001) in the endorsement of December 3, 2001 by Master Birnbaum and in paragraphs (7) – (9) of the decision of Chapnik J. In my view, it is desirable that this conflict in approach be resolved on a principled basis.

9In my view, the Plaintiff has met the test outlined in Rule 62.02(4)(a).

10I am further of the view that given the conflict in authorities outlined above, there is good reason to doubt the correctness of the decision. Moreover, the issues raised transcend the specific facts of this case. The plaintiff has also met the test for leave to appeal outlined in Rule 62.02(4)(b).

11Costs of this application reserved to the panel of the Divisional Court on the appeal.

Then J.