Sangaralingam v. Sinnathurai et al.; The Nordic Insurance Company of Canada, Third Party [Indexed as: Sangaralingam v. Sinnathurai]

105 O.R. (3d) 714

2011 ONSC 1618

Ontario Superior Court of Justice,

Divisional Court,

Ferrier, Polowin and Herman JJ.

March 21, 2011

Civil procedure -- Discovery -- Examination for discovery -- Counsel for plaintiff in personal injury action asking defendant on examination for discovery to provide information contained in written statement defendant gave to his insurer -- Motion judge erring in ordering defendant to answer question -- Alternative means of obtaining information in statement existing as plaintiff's counsel could have questioned defendant about matters relevant to material issues -- Question improper as it was directed solely to defendant's credibility.

The plaintiff brought an action for damages suffered in a motor vehicle accident. When examining the defentant for discovery, counsel for the plaintiff asked the defendant to provide information contained in a written statement he gave to his insurer. Counsel for the defendant refused to provide the statement or the information on the basis that it was protected by litigation privilege. The master ruled that the defendant was not required to provide the information in the statement, but the motion judge allowed the plaintiff's appeal from that decision and ordered the defendant to answer the question. The defendant appealed.

Held, the appeal should be allowed.

A party under examination cannot withhold relevant information merely because that information may be included in a privileged document. However, that is not what occurred in this case. Plaintiff's counsel had the opportunity to ask the defendant questions about matters relevant to the material issues. The defendant did not withhold information about those issues. There was, therefore, an alternative means available for the plaintiff to obtain the relevant information, and no need to seek disclosure of the contents of the privileged document. Moreover, the question was improper as it was directed solely to the defendant's credibility.

APPEAL from an order requiring the defendant to answer the question asked on examination for discovery.

Cases referred to Greco v. Thornhill, [1993] O.J. No. 1347, 65 O.A.C. 71, 40 A.C.W.S. (3d) 1092 (Gen. Div.); Kennedy v. McKenzie, [2005] O.J. No. 2060, [2005] O.T.C. 385, 17 C.P.C. (6th) 229, 139 A.C.W.S. (3d) 843 (S.C.J.), consd Other cases referred to April Investments Ltd. v. Menat Construction Ltd. (1975), 1975 704 (ON SC), 11 O.R. (2d) 364, [1975] O.J. No. 2578 (H.C.J.); Pearson v. Inco Ltd., [2008] O.J. No. 3589, 169 A.C.W.S. (3d) 524, 2008 46701 (S.C.J.); Sacrey v. Berdan, [1986] O.J. No. 2575, 10 C.P.C. (2d) 15, 38 A.C.W.S. (2d) 296 (Dist. Ct.); Sangaralingam v. Sinnathurai, [2010] O.J. No. 309, 2010 ONSC 554, 81 C.C.L.I. (4th) 79, 86 C.P.C. (6th) 89; Tiller (Litigation guardian of) v. St. Andrew's College, [2009] O.J. No. 2634, 178 A.C.W.S. (3d) 330, 2009 32274 (S.C.J.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 31.06(1) [page715] Authorities referred to Sharpe, Robert J."Claiming Privilege in the Discovery Process" in Law in Transition: Evidence, [1984] Special Lect. L.S.U.C. 163

M. Katzman, for plaintiff/respondent. S. Lynne Lawson, for defendants/appellants, Joseph Ciampaglia and Lisi Mechanical Contractor Ltd.

The judgment of the court was delivered by

[1] HERMAN J.: -- The appellants Joseph Ciampaglia and Lisi Mechanical Contractor Ltd. appeal from the order of the motion judge, dated January 22, 2010 [[2010] O.J. No. 309, 2010 ONSC 554], requiring the appellant, Mr. Ciampaglia, to provide information contained in a written statement he gave to his insurer.

The Issues

[2] The parties agree that the statement made to the insurer is subject to litigation privilege. They also agree that the issue in this appeal involves a question of law and is therefore subject to the standard of correctness.

[3] The appellants submit that the motion judge erred in requiring Mr. Ciampaglia to provide the information because (i) litigation privilege attaches to the contents of the document as well as to the document itself; (ii) there was an alternative way in which the respondent could obtain the relevant information; and (iii) the question was directed solely to Mr. Ciampaglia's credibility.

[4] The respondent's position is that setting aside litigation privilege is not at issue because he is not seeking a copy of the actual statement; rather, he is seeking information contained in the statement. The respondent also disagrees that the question was [directed] solely to credibility.

The Background

[5] On March 5, 2005, the respondent was involved in a motor vehicle accident. According to the statement of claim, the respondent was a passenger in a car which was struck by a vehicle operated by Mr. Ciampaglia and owned by Lisi Mechanical.

[6] The respondent issued his statement of claim on February 13, 2007. [page716]

[7] Mr. Ciampaglia met with the insurer on March 7, 2007 and gave the insurer a statement.

[8] Counsel for the respondent examined Mr. Ciampaglia for discovery on April 23, 2009. At the discovery, counsel asked Mr. Ciampaglia to either give him the statement he provided to his insurer or the information in the statement. Counsel for Mr. Ciampaglia refused to provide the statement or the information on the basis that it was protected by litigation privilege.

The Master's Decision

[9] The respondent brought a motion dealing with refusals and undertakings in the examination for discovery.

[10] In a decision dated September 25, 2009, the master decided that Mr. Ciampaglia was not required to provide the information in the statement.

[11] In reaching his conclusion, the master referred to the decision in Greco v. Thornhill, [1993] O.J. No. 1347, 65 O.A.C. 71 (Gen. Div.). In that case, Lane J. referred to the fact that the witness had already testified as to the facts of the alleged automobile theft. In his opinion, the examining party was not trying to find out the facts, but was trying to find what the witness had said about the facts to her insurer. Lane J. concluded [at para. 3]: "Such questioning is clearly devoted solely to the credibility of the witness and she is not obliged to respond."

[12] The master referred to the fact that Mr. Ciampaglia had already been examined for discovery to the extent of a 75-page transcript. The plaintiff had also received a copy of the statement Mr. Ciampaglia made to the police following the accident.

The Motion Judge's Decision

[13] The respondent appealed the master's decision.

[14] In a decision dated January 22, 2010, the motion judge determined that the master had erred on a question of law. She required the witness to answer the question.

[15] The motion judge referred to various cases as authority for the principle that questions on discovery seeking the facts of a party's case do not offend privilege even though the source of the facts is a document over which privilege is being asserted.

[16] In reaching her conclusion that the information should be provided, the motion judge distinguished the case at hand from the circumstances in Greco and Kennedy v. McKenzie, [2005] O.J. No. 2060, [2005] O.T.C. 385 (S.C.J.), both cases involving statements given to insurers. [page717]

Leave to Appeal

[17] The appellants sought leave to appeal the motion judge's decision.

[18] Leave was granted on the basis that there appeared to be two conflicting decisions: Greco and Kennedy; and it was desirable and important that the issue be clarified.

Does privilege extend to the contents of the statement? If it does, should it be set aside?

[19] The respondent asserts that litigation privilege is not an issue because he is not seeking to have the statement produced. The appellants submit that there is no difference between the statement itself and the contents. Furthermore, the respondent is able to obtain information relevant to the matters in issue through other means.

[20] The respondent referred to several cases in which the court distinguished between the disclosure of a privileged document and the disclosure of facts which may be contained in a privileged document: Sacrey v. Berdan, [1986] O.J. No. 2575, 10 C.P.C. (2d) 15 (Dist. Ct.); April Investments Ltd. v. Menat Construction Ltd. (1975), 1975 704 (ON SC), 11 O.R. (2d) 364, [1975] O.J. No. 2578 (H.C.J.); Tiller (Litigation guardian of) v. St. Andrew's College, [2009] O.J. No. 2634, 2009 32274 (S.C.J.); Pearson v. Inco Ltd., [2008] O.J. No. 3589, 2008 46701 (S.C.J.).

[21] In Pearson v. Inco Ltd., Cullity J. referred, at para. 15, to the following statement of law by Professor Robert J. Sharpe in "Claiming Privilege in the Discovery Process" in Law in Transition: Evidence, [1984] Special Lect. L.S.U.C. 163, at p. 169:

It is well established in the case law that where a party on discovery has asked for facts relating either to his own case or to that of his opponent, those facts must be revealed, not withstanding that the party's source of information is a privileged report or document.

[22] The cases cited by the respondent relate to discovery of information in a document created by someone other than the witness. In the case at hand, the person who is the author of the privileged document is the one being questioned.

[23] In Kennedy v. McKenzie, the plaintiff made two statements to his insurer, one of which was mistakenly sent to counsel for an opposing party. The plaintiff brought a motion to require the lawyer to return the statement. The master concluded that the statement was not privileged. Ducharme J., on appeal, set aside the decision of the master and required that the statement be returned and copies of it destroyed. [page718]

[24] In reaching his conclusion, Ducharme J. considered whether there was any basis for setting aside the litigation privilege that would ordinarily attach to the statement. He indicated, at para. 46, that litigation privilege should only be set aside where "the materials being sought 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". He noted that there was an alternative because the opposing party would be able to obtain the plaintiff's account of the events at his examination for discovery.

[25] The motion judge distinguished Kennedy on the basis that in Kennedy, the judge was dealing with challenges to privilege, while in the case before her, the respondent did not dispute that the statement itself was protected by privilege. I am unable to see a distinction between providing the contents of the statement and providing the statement itself. In both cases, the opposing party wanted to find out what the witness told the insurer. In both cases, there was an opportunity for the opposing party to question the witness about the matters in issue.

[26] A party under examination cannot withhold relevant information merely because that information may be included in a privileged document. However, that is not what occurred here. In the course of the examination for discovery, counsel had the opportunity to ask Mr. Ciampaglia questions about matters relevant to the material issues. Mr. Ciampaglia did not withhold information about those issues. There was, therefore, an alternative means available for the respondent to obtain the relevant information and no need to seek disclosure of the contents of the privileged statement. In these circumstances, the distinction between producing the statement and providing the information in the statement is a distinction without a difference.

Is the question directed solely to credibility?

[27] Rule 31.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a person being examined for discovery shall answer any proper question relevant to any matter in issue. It further provides that no question may be objected to on the ground that: (b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness[.] (Emphasis added)

[28] The appellants and respondent disagree as to whether the request for the information in the statement was directed solely to the credibility of the witness. [page719]

[29] The respondent distinguished between questions that have no relationship to the facts of the case and therefore are clearly related solely to credibility (e.g."Do you have a criminal record?") and questions that are related to the facts of the case (e.g."Please provide me with the material information in the statement you gave to your insurer").

[30] The issue of asking a question related solely to credibility was considered by Lane J. in Greco. In that case, a motion was brought to obtain the contents of a statement made by the insured to her insurer about the alleged theft of her car. The witness had already testified to the facts of the alleged theft. Therefore, when the opposing party sought the contents of the statement, the party was not seeking the facts. Rather, the opposing party was trying to find out what the witness told her insurer. Lane J. concluded that the question was "clearly devoted to the credibility of the witness" and the witness was not required to respond.

[31] The motion judge distinguished Greco on the basis that the respondent in the case at hand had no knowledge as to the subject matter of the statement, while in Greco, the opposing party knew that the statement related to the witness's position that she was not responsible for the damages in the accident because her car had been stolen.

[32] I have difficulty accepting the distinction. This case involves a straightforward motor vehicle accident. The material issues in the case would have been apparent from the pleadings. Mr. Ciampaglia's position would have been apparent from the statement of defence. Counsel for the respondent had every opportunity during the examination for discovery to ask questions about the accident and the material issues. The only purpose the question would have served would have been to find out what Mr. Ciampaglia told the insurer.

[33] The motion judge suggested that the information in the statement could have the potential to clarify the evidence or jog Mr. Ciampaglia's memory as to relevant information. However, there is no suggestion that Mr. Ciampaglia had difficulty remembering what had occurred. Furthermore, the respondent had every opportunity to ask questions to clarify the evidence.

[34] In these circumstances, it is my opinion that the question was being asked for the sole purpose of finding out what Mr. Ciampaglia told his insurer, not for the purpose of eliciting information relevant to material issues. As such, it was being asked solely for the purpose of credibility and need not be answered. [page720]

Conclusion

[35] I respectfully conclude that the motion judge erred when she decided that the information contained in the statement to the insurer should be provided.

[36] In the circumstances, there is no distinction between the statement, which is protected by litigation privilege, and the contents of the statement. Litigation privilege should not be set aside because there was an alternative way for the respondent to obtain information from Mr. Ciampaglia relevant to the matters in issue. Furthermore, the question was directed solely to Mr. Ciampaglia's credibility.

[37] The appeal is therefore allowed and the decision of the master that the witness need not provide the information is restored.

[38] I would encourage the parties to come to an agreement with respect to costs. If they are unable to do so, the appellants may provide written submissions on costs within 14 days of the release of this decision. The respondent has a further 14 days within which to provide responding submissions. The written submissions should be no more than five pages in length, plus a bill of costs.

Appeal allowed.