DIVISIONAL COURT FILE NO.: DC-54/10
SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO
RE: SANGARALINGAM v. SINNATHURAI, CIAMPAGLIA et al
BEFORE: H. Sachs J.
COUNSEL: Lynne Lawson, for the Defendants/Moving Party, Ciampaglia and Lisi Mechanical
David S. Wilson, for the Plaintiff/Responding Party
DATE HEARD: March 22, 2010 at Toronto
E N D O R S E M E N T
1This is a motion by the Defendants for an order granting them leave to appeal the order of Allen J. dated January 22, 2010, requiring the Defendant, Joseph Ciampaglia, to provide the material information contained in the statement that he gave to his insurer on March 7, 2007.
2The action arises out of a motor vehicle accident. After the Statement of Claim was issued and after the insurer had retained counsel to defend the action, a representative for the insurer met with Mr. Ciampaglia to obtain his statement. The statement was obtained for the dominant purpose of responding to the litigation commenced by the Plaintiff. There is no issue between the parties that the statement itself is protected from production by litigation privilege.
3Mr. Ciampaglia was examined for discovery. During his examination he was asked to provide the material information contained in the statement that he had given to his insurer on March 7, 2007. The question was refused and the Plaintiff brought a motion to compel Mr. Ciampaglia to provide a response to the question. Master Short heard the motion and upheld the refusal finding that the question was directed solely at credibility and, thus, was improper.
4The Plaintiff appealed the master’s decision and Allen J. allowed the appeal. In doing so, she found that the master was clearly wrong in upholding the refusal for two reasons. First, she found that while litigation privilege may attach to the statement itself, it does not attach to the contents of that statement. Second, she found that the master erred in finding that the question was directed solely to the credibility of the Defendant. In her view
…a request for information that is pertinent to the matters in dispute has the potential of eliciting responses that can clarify evidence or jog the deponent’s memory as to relevant information he might have overlooked or forgotten. This is especially the case if the statement was taken closer in time to the incident than the discovery. In this case the statement was taken about two years before discovery.
5I agree with the Defendants that the motion judge’s decision does appear to be in conflict with two other decisions by other judges in Ontario - Greco v. Thornhill, 1993 CarswellOnt 1150 (Div. Ct.) and Kennedy v.McKenzie, 2005 CarswellOnt 2109 (Ont. Sup. Ct.).
6In Greco the action also arose as a result of a motor vehicle accident. Again, what was at issue were the contents of a statement that the defendant in that action had made to her insurance adjuster. The plaintiff sought that information at examination for discovery and the defendant refused to provide it. In that case the refusal was upheld. The Plaintiff applied for leave to appeal and Lane J. heard the leave motion. He dismissed the motion, finding that the witness had already testified on discovery about the material facts in the litigation and that the question was directed solely to testing the credibility of the witness. Therefore, she was not obliged to respond.
7In this case the motion judge distinguished Greco on the basis that in this case the Plaintiff has no knowledge as to the subject matter of the statement, while in Greco the Plaintiff knew that the statement related to the defendant’s allegation that she was not responsible as the owner of a vehicle for the damages caused in the accident since her car had been stolen and was being driven without her consent. In other words, while the Plaintiff in Greco did not know the contents of the statement, they at least knew the subject matter of the statement - the owner’s position that her car had been stolen.
8With respect, I find this basis for distinguishing the two cases problematic. The statement at issue would have no relevance unless it concerned the material facts alleged against or by the defendant in the pleadings. In the Greco case the material issue from the defendant owner’s perspective was consent. In this case the material issues are apparent from the pleadings.
9In Kennedy Ducharme J. was also dealing with two written statements that a party to the litigation had made to his insurer. The master had ordered that the statements were not protected by litigation privilege and should be produced. On an appeal from the master’s decision Ducharme J .dealt both with the question of whether the statements or their contents were protected by litigation privilege and with the question of when the privilege should be set aside. With respect to the first question Ducharme J. stated at para 47:
It must be remembered that the fact that the statement itself is protected by litigation privilege only precludes questions about the contents of the statement; it does not preclude questions about the factual circumstances discussed in the statements.
10Thus, in contrast to the motion judge, Ducharme J. decided that when a statement is protected by litigation privilege questions about the contents of the statement are precluded. Ducharme J. also found that the privilege should be set aside when the materials sought to be disclosed are relevant to “the proof of an issue important to the outcome of the case and that there is no reasonable alternative form of evidence that can serve the same purpose” (para 46). In the case at bar, as in Kennedy, there was another alternative way to obtain the information about the factual circumstances discussed in the statement ie. through examination for discovery.
11The motion judge distinguished Kennedy on the basis that in that case Ducharme J. was being asked to decide challenges to privilege, whereas in the case before her, the Plaintiff accepted that the witness statement was protected by litigation privilege. Again, with respect, I have concerns about whether this is an adequate basis for distinguishing the two decisions.
12Insurance adjusters take statements from insureds all the time when litigation is contemplated or commenced. In my view, it is desirable and important that the issue of when and if the contents of such statements are subject to disclosure to the other side be clarified by the Divisional Court.
13For these reasons the motion is granted. The costs of the motion are reserved to the panel hearing the appeal. For the guidance of that panel, the parties have agreed that those costs should be fixed in the amount of $6000.00.
H. Sachs J.
DATE: March 25, 2010