ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 851/10
DATE: 2012/07/18
B E T W E E N:
ANGELA KNOX, NATALIE KNOX and MATTHEW KNOX by their Litigation Guardian, ANGELA KNOX
G. Good, for the Plaintiffs
Plaintiffs
- and -
APPLEBAUM HOLDINGS LTD. c/o 20 VIC MANAGEMENT INC. and LAFARGE PAVING AND CONSTRUCTION LTD.
S. Handler, for the Defendants
Defendants
HEARD: April 10, 2012
HOCKIN, J.
[ 1 ] This is the plaintiffs’ motion under rule 30.02(2) for production of a statement which was prepared by the defendant Vic’s property manager following a motor vehicle accident on the defendant Applebaum Holdings’ parking lot at 8:55 pm, April 3, 2008. The plaintiff, Angela Knox, alleges that she suffered injury when the vehicle she was operating came into contact with an unmarked pile of asphalt which was sitting in the middle of the Applebaum lot.
[ 2 ] The background to the motion and the circumstances which surround the preparation of the statement are as follows.
[ 3 ] Vic’s property manager, Bonnie Wludyka was notified quickly of the accident. She telephoned straightaway Vic’s risk manager and then travelled to the scene of the accident. Photographs were taken and then she called again her risk manager to report what she had found. The risk manager’s advice was that an insurance adjuster would call her. That occurred at 12:35 am, April 4, 2008. At this point, she was aware that two people were injured. After speaking to the adjuster, she typed up in statement form her recollection of what she had seen and learned of the accident while it was fresh in her mind. The statement was delivered to the adjuster late that day when they met.
[ 4 ] I consider the following paragraphs of the Wludyka affidavit to the point of the motion:
My typewritten statement entitled “Northland Mall Incident April 3, 2008” serves no particular purpose within the organization other than to furnish information about the incident in question.
While it is required that I make notes of incidents when they occur as a matter of general policy to preserve evidence, the notes were not made in the ordinary course of business. The accident at Northland Mall was an unusual event, not something that occurs in the ordinary course. To the extent that my evidence on examination for discovery is inconsistent with this, I hereby correct that evidence.
Although we had not yet been advised of any lawsuit at the time I made my notes, when I made the notes I anticipated that there would be litigation out of this incident. I made my notes with the intention of providing them to the insurance adjuster and to my superiors in the organization to inform them of my knowledge of the incident, and to preserve my own recollection of the matter for use in litigation.
There are two questions:
Does litigation privilege attach to the statement?
If it does, was the protection from production lost when Wludyka read her statement when she prepared for her examination for discovery?
[ 5 ] For instruction on the concept of litigation privilege and its application, I need travel no further than the judgment of the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39 , [2006] 2 S.C.R. 319 . In particular, I am instructed by the following statements of Fish J. for the court:
- Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.
Para. 27, p. 330.
- The following definition of litigation privilege by R.J. Sharpe (now Sharpe J.A.) was accepted without change by Fish J.
Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversarial process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).
(“Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, 164-65)
Para. 28, pp. 330, 331.
- The purpose of litigation privilege in sum, is to create a “zone of privacy” within which an event which may reasonably give rise to an apprehension of litigation may be investigated by a party, whether represented or not, to the end that a case or defence may be prepared for trial without the risk of “premature disclosure”.
Paras. 32 and 34, pp. 332, 333.
[ 6 ] In my view, litigation privilege attaches to the statement at the time of its preparation. Vic’s property manager knew that there had been an accident and that two people had been injured. The accident, as known to her, occurred on a parking lot under the control of her employer. She believed that litigation would follow. This is the effect of her affidavit.
[ 7 ] It matters not, of course, that at the time, the defendants were not represented by counsel. They were insured and representation would follow in the ordinary course.
[ 8 ] I am satisfied that the dominant purpose of Ms. Wludyka’s investigation and the preparation of a statement to record its result was twofold: to facilitate her employer’s defence; and to assist her in her forensic involvement in the case.
[ 9 ] When Ms. Wludyka reviewed her statement before her examination for discovery, was privilege waived?
[ 10 ] Mr. Good for the plaintiff points to the decision of Harris J. in Copeland v. Frey, [2002] O.J. No. 1356 . In Copeland the defendant motorist provided her insurance adjuster nine days after the accident a statement with respect to the accident which was then read over by her before she was examined for discovery. Harris J. held the view that when she read over her statement, privilege was waived. This was explained as follows:
However, the defendant Sundermann had used her statement to refresh her memory before attending at her Examination for Discovery and in so doing waived her privilege.
The defendant, in using her statement to refresh her memory may have given evidence which is not a true recollection and it would be unfair to refuse this document to the opposite party for the purpose it could be put to test whether the alleged recollection is accurate or not.
Accordingly, I order that the Sundermann statement supra be provided to the plaintiff.
[ 11 ] Ms. Handler for the defendants Applebaum and Vic cited a number of cases but the two principal cases relied upon are Wronick v. Allstate (1997), 7 C.P.C. (4 th ) 285 per Leitch J. and Sangardlingam v. Sinnathurai (2011), 2011 ONSC 1618 , 105 O.R. (3d) 714 (Ont. Div. Ct.) . The Wronick case, in its important aspects, is not distinguishable from this case: both cases dealt with a pre-discovery review of a privileged document. There are these useful statements by Leitch J. at paras. 13, 14 and 15:
The plaintiff distinguishes the case of Schellert v. Nesteegaard , (1985), 1985 403 (BC CA) , 61 B.C.L.R. 379 (C.A.) where it was held that the privilege attaching to the defendant’s written statement containing particulars of the motor vehicle accident prepared prior to the plaintiff commencing her action was not lost on the basis that the defendant had referred to the statement to refresh his memory about one month prior to the examination for discovery in preparation for the examination. The plaintiff submits that that case is distinguishable because the reference to the privileged statement was made one month before the examination for discovery.
I concur with the reasoning of the court in Schellert v. Nesteegaard that reference to privileged documentation to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of the privilege and that to remove the privilege in those circumstances unduly narrows the effect of privilege. As the court in Schellert noted, those circumstances are quite different from the situation where a witness refers to notes to refresh his memory during the course of his testimony at trial and the witness is required to produce the notes for the inspection of opposing counsel during cross-examination. I am of the view that there is no difference in substance to a review of notes one month prior to the examination for discovery as was the case in Schellert and a review of the notes during the course of the examination for discovery as is the case here.
Further, in both of the instances in which reference was made by Mr. Hisson to the notes, Mr. Wunder who was conducting the examination for discovery specifically asked if there was an annotated copy in the file and whether there was an indication in the report as to remuneration of jobs. In other words, the manner in which Mr. Wunder framed the question directed the witness to his notes. In these circumstances, therefore, the privilege was not deliberately and knowingly waived. These circumstances are closer to those considered in Somerville Belkin v. Brocklesby Transport where there was found not to be a waiver of privilege in circumstances where the adjuster was unaware that the furnishing of copies of his reports to the broker could be considered a waiver of his principle’s privilege.
[ 12 ] The Sangardlingam case is not a case where a discovery witness had reviewed a privileged document and so is distinguishable from this case. However, there is this statement by Herman J. which may offer some guidance in this case, at para. 26:
[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.
[ 13 ] I note that the discovery transcript of Ms. Wludyka is 129 pages in length. It is clear that she was widely and well examined by Mr. Good on the material facts in issue.
[ 14 ] I agree with the reasoning of Leitch J. in Wronick and conclude that Ms. Wludyka’s review of her statement before her examination for discovery did not waive privilege. I do not overlook the Copeland case but on a careful review, it seems to me that Harris J.’s order for production was for trial purposes which is not the case here. As well, it is difficult to tell from his reasons whether the matters argued in this case were before him.
[ 15 ] For these reasons, the motion for production of the statement is dismissed. If there is no agreement on costs, I will receive Ms. Handler’s outline by month’s end and Mr. Good’s by the end of August.
“ Justice Peter B. Hockin”
Justice Peter B. Hockin
Released: July 18, 2012