ICBC Law

A developing area of law is electronic discovery.

In the personal injury context the BC Supreme Court Rules require relevant, non privileged documents to be disclosed to opposing counsel.  The definition of document includes “any information recorded or stored by any means of any device“.  So, if there is relevant information, be it printed, on a computer or even on a cell phone, discovery needs to be made in compliance with the Rules of Court.

In recent years electronic documents have been the subject of court applications and Insurance companies / Defendants have sometimes been successful in gaining access to a Plaintiff computer’s hard drive.  Reasons for judgement were released today by the Supreme Court of Canada discussing court orders for the seizure of computer hard drives.

Today’s case (R v. Morelli) dealt with a criminal law matter.  However the Canadian High Court’s reasons may be of some use in the personal injury context.

By way of background the Defendant was charged with a criminal code offence.  One of the reasons for the charges was evidence that was apparently obtained from the Defendant’s computer which was seized pursuant to a search warrant.

The Defendant was convicted at trial.  The Supreme Court of Canada, in a very close split decision (4-3) overturned the conviction on the basis that the search warrant never should have been ordered because there were no reasonable and probable grounds to issue it.

While this case strictly dealt with criminal search warrants and the necessary evidence to obtain one, the Canadian High Court made some very strong comments about the intrusive effects of computer searches and this reasoning very well may have persuasive value for Courts considering whether they should give insurance companies access to Plaintiffs computers.  Specifically the Supreme Court of Canada provided the following comments:

Further to my previous posts on the topic of ICBC Claims and Privilege, reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, demonstrating that a party seeking to withhold documents on the basis of ‘litigation privilege’ may face an uphill battle.

In yesterday’s case (Celli v. White) the Plaintiff was a pedestrian who was struck by a vehicle.  The Plaintiff was injured and eventually sued for damages.  In the course of the lawsuit the Defendants refused to produce a number of documents relevant to the Plaintiff’s Claim on the basis that they were protected by ‘litigation privilege‘.

The Plaintiff obtained legal advice almost immediately after the accident.  As a result of this the defence lawyers argued that “litigation was inevitable from the outset.”  On this basis the Defendant refused to produce a number of documents which were gathered by the Defendant’s insurer in the immediate aftermath of this collision.

The Plaintiff applied to Court for production of a number of the allegedly privileged documents.  The Plaintiff was largely successful and the Defendants were ordered to produce a number of documents which were gathered by the Defendants insurer in the 6 months following the collision.  In reaching this decision Master Caldwell summarized the law of litigation privilege in the context of BC Injury Claims as follows:

[8] The leading case in this subject area is Hamalainen v. Sippola (1991), 62 B.C.L.R. (2d) 254 [Hamalainen].  In that case the Court of Appeal held that two factual determinations were required in order to uphold a claim of litigation privilege:

(1)        Was litigation in reasonable prospect at the time the document was produced,

(2)        If so, what was the dominant purpose for its production?

[9] The court indicated that while the first of these requirements would not likely be overly difficult to establish, the second would be more challenging:

22.       I am not aware of any case in which the meaning of “in reasonable prospect” has been considered by this Court. Common sense suggests that it must mean something more than a mere possibility, for such possibility must necessarily exist in every claim for loss due to injury whether that claim be advanced in tort or in contract. On the other hand, a reasonable prospect clearly does not mean a certainty, which could hardly ever be established unless a writ had actually issued. In my view litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet. I am satisfied it was met in this case in connection with all of the documents in issue. The circumstances of this accident, and the nature of Mr. Hamalainen’s injuries, were such that litigation was clearly a reasonable prospect from the time the claim was first reported on December 1st, 1986.

(b)        What was the dominant purpose for which the documents were produced?

23.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

24.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p. 541 of the report:

If material comes into being for a dual purpose - one to find out the cause of the accident - the other to furnish information to the solicitor - it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents - which are made shortly after the accident - should be disclosed on discovery and made available in evidence at the trial.

25.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

26.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

27.       In that sense there is obviously no absolute rule that the decision to deny liability in such a claim must mark the point in which the conduct of litigation becomes the dominant purpose underlying the production of each and every document of the sort for which privilege was claimed in this case. But I do not read the master’s reasons as invoking any such absolute rule. He was faced with affidavit material filed by the party claiming privilege which was deficient in a number of respects. As already noted it failed to draw any distinction between the purpose underlying the production of individual documents. The risk inherent in that approach was pointed out by Mr. Justice Esson in the Shaughnessy Golf case at p. 319 of the report:

Privilege was claimed for a large number of documents. The grounds for it had to be established in respect of each one. By trying to extend to the whole list the considerations which confer privilege on most of the documents, the plaintiff has confused the issue and created the risk that, because it did not make in its evidence the distinctions that could have been made, it must be held not to have established privilege for any.

28.       Furthermore, the affidavit material concentrated on the repetitious assertion by each deponent of his belief that litigation in the case was inevitable, from which fact the dominant purpose underlying the production of all documents was apparently assumed. As already pointed out that approach to the onus facing the deponent on this question represented a mistaken view of the law.

[10] Gray J. echoed this sentiment at paragraphs 97 and 98 of Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180 as follows:

97.       The first requirement will not usually be difficult to meet.  Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.)

98.       To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.

[11] This dominant purpose test was also confirmed by Fish J. in the case of Blank v. Canada (Minister of Justice), 2006 SCC 39 at paragraphs 60 and 61:

60. I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure. As Royer has noted, it is hardly surprising that modern legislation and case law

[TRANSLATION] which increasingly attenuate the purely accusatory and adversarial nature of the civil trial, tend to limit the scope of this privilege [that is, the litigation privilege]. [para. 1139]

Or, as Carthy J.A. stated in Chrusz:

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. [p. 331]

61. While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process. In this context, it would be incongruous to reverse that trend and revert to a substantial purpose test.

In ordering that the Defendants produce the relevant documents the Court held that the dominant purpose of much of the defendants insurer’s early investigations was due to ‘adjusting‘ the potential claims as opposed to in response to anticipated ‘litigation‘.

Since ICBC is a monopoly insurer in British Columbia the analysis of the ‘adjusting‘ phase vs. the ‘litigation‘ stage will be triggered in most multi-party motor vehicle collisions.  The lesson to be learned is that many documents which are gathered by ICBC in the early stages which may prove harmful to a Defendant if disclosed may not be protected by privilege if they were gathered by for the dominant purpose of determining how a collision occurred.

Further to my many posts on the topic of discovery, when parties are involved in a lawsuit in the BC Supreme Court the Rules of Court require the parties to disclose certain information to the opposing side.  Generally all relevant information needs to be disclosed however there are exceptions to this and one such exception is ‘privilege‘.

Generally speaking (this is not an exhaustive list), privileged documents are documents that were created with an expectation of confidentiality between a party and his/her lawyer or documents that were created with the dominant purpose of advancing the parties interests in court.

The purpose behind the privilege exception to disclosure is to permit individuals to freely discuss their legal matters and work with their lawyers to advance their interests without the fear that these conversations/actions can come back to hurt the individuals interests later on.

The law recognizes an extension of privilege between one client and their lawyer to multiple people and that lawyer if the conversations took place in anticipation of a lawsuit and the multiple parties have a common interest.  This type of privilege is sensibly called ‘common interest privilege‘.  Reasons for judgement were released today discussing this area of law and highlighting some of the limitations of common interest privilege.

In today’s case (Peters v. Paterson) the Plaintiff was seriously injured while windsurfing when he was involved in a collision with a motorboat.  He eventually sued multiple parties including the people alleged to have been operating the boat (the “Motorboat Defendants”) and the people alleged to have rented the boat to the Motorboat Defendants (the “Renter Defendants”).

Before the lawsuit started one of the Renter Defendants apparently feared a potential lawsuit and retained the services of a lawyer.  That lawyer retained an adjuster who immediately took statements from a handful of people including the people who would later turn out to be the Motorboat Defendants.

After all the Defendants were sued by the Plaintiff the Renter Defendant who initially hired the lawyer issued a Third Party Notice against the Motorboat Defendants (a Third Party Notice is a document which alleges that if a certain defendant is found at fault and has to pay that the Third Party has to indemnify that defendant for the judgement).

The Plaintiff then asked for the statements of the Motorboat Defendants to be produced.  The Lawyer for the Renter Defendants refused citing ‘common interest privilege‘.  Ultimately an application was brought to court to force disclosure and the application succeeded.  Master Taylor of the BC Supreme Court, Vancouver Registry, held that the Third Party Notice took away any claim to common interest privilege.  The key reasons were as follows:

[13] Common interest privilege is said to be an extension of the privilege against disclosure of solicitor-client communications.  As Wigmore defines it:

The chief instance occurs when the same attorney acts for two parties having a common interest, and each party communicates with him.  Here the communications are clearly privileged from disclosure at the instance of a third person.  Yet they are not privileged in a controversy between the two original parties, inasmuch as the common interest and employment forbade concealment by either from the other.  (Wigmore’s emphasis)

[14] The defendants take the position that the statements in this case are covered by common interest privilege, which, they submit, applies to an exchange of confidential information between individuals who have a common interest in anticipated litigation.  The defendants cite Buttes Gas and Oil Co. v. Hammer (No. 3), [1980] 3 All E. R. 475 (C.A) in support of their position where Lord Denning says:

There is a privilege which may be called a “common interest” privilege.  That is a privilege in aid of anticipated litigation in which several persons have a common interest.  It often happens in litigation that a plaintiff or defendant has other persons standing alongside him – who have the self-same interest as he – and who have consulted lawyers on the self-same points as he – but these others have not been made parties to the action…All exchange counsel’s opinions.  All collect information for the purpose of litigation.  All make copies.  All await the outcome with the same anxious anticipation – because it affects each as much as it does the others.

[15] The defendants maintain that common interest privilege can apply to witness statements and in fact has been so applied in a number of Canadian cases.

[16] On the other hand, the plaintiff asserts that the case at bar is distinguishable from other cases in that there is no suggestion by the defendant or their counsel that counsel has ever worked in conjunction with the motorboat defendants to jointly advance the interests of all the defendants.  As well, the plaintiff maintains, there has not been any evidence led to indicate the motorboat defendants understood the reason for giving their statements, the uses their information would be put to, or that their statements would be kept privileged from the plaintiff.  In fact, in the instant case, two of the motorboat defendants have signed authorizations to release their statements to the plaintiff.

[17] In the recent decision in Maximum Ventures Inc. v. De Graaf, 2007 BCCA 510, Mr. Justice Mackenzie discussed the test for maintaining privilege between parties at paragraph 14:

Recent jurisprudence has generally placed an increased emphasis on the protection from disclosure of solicitor-client communications, including those shared in furtherance of a common commercial interest.  In the instant case the [solicitor’s] draft was produced within the recognized solicitor-client privileged relationship.  The common interest privilege issues arise in response to a plea of waiver of that privilege.  The common interest privileges is an extension of the privilege attached to that relationship.  The issue turns on whether the disclosures were intended to be in confidence and the third parties involved had a sufficient common interest with the client to support extension of the privilege to disclosure to them….Where legal opinions are shared by parties with mutual interests in commercial transactions, there is a sufficient interest in common to extend the common interest privilege to disclosure of opinions obtained by one of them to the others within the group, even in circumstances where no litigation is in existence or contemplated.

[18] And, at paragraph 16, Mackenzie, J.A. made the following finding:

The interests of the clients of the three solicitors were not identical but they were common to the extent that financing of the Western exploration of the Mongolian properties was beneficial to all of them.  They also shared an interest in assessing the invalidity of Maximum’s claims.

[19] The defendants maintain that even though two of the defendants have signed authorizations addressed to counsel for the defendants directing that their statements be released to counsel for the plaintiff, they cannot, in these circumstances, create a waiver over the common interest privilege by so doing.

[20] In my view, that argument begs the question for two reasons.  Firstly, were the persons from whom the statements taken to request copies of their statements, surely they would be entitled to receive copies of them as no privilege attaches to one’s own statement in the hands of a third party?  It would then be open to each of those parties to deliver a copy of their statements directly to the plaintiff.  Secondly, the defendant, Paterson, has issued third party proceedings against the four individual motorboat defendants for which he seeks judgment against the motorboat defendants, or indemnity from them in the event a judgment is rendered against Paterson.

[21] The Third Party Notice contains the following allegations:

a. The plaintiff’s windsurfer struck the port side of the motorboat;

b. The motorboat defendants represented that Arvinder Kaler would be the person operating the motorboat;

c. While Paterson does not know who was operating the boat at the time of the accident, it has been represented to Paterson that Sukhbir Brar was operating the motorboat at the time of the accident; and

d. the accident was caused solely by the negligence of the operators of the motorboat.

[22] In the circumstances, two things are apparent.  One, that the allegations made in the Third Party Notice are likely the result of information gleaned from the motorboat defendants, and, two, the defendant, Paterson, alleges the accident was caused solely by the negligence of the motorboat defendants, which creates the question: where is the commonality of interest between the renter defendants and the motorboat defendants such that a privilege continues to exist over the statements taken from the motorboat defendants?

[23] In my view, by the very nature of the Third Party Notice and the allegations made in it, there has been a severing of the commonality of interest of the defendants.  In the result, therefore, there is no common interest privilege which can be maintained, and, accordingly, the statements taken from the four motorboat defendants are no longer privileged and must be turned over to the plaintiff.

When a person at fault for a car crash is sued by the innocent victims and at the same time faces criminal charges as a result of the accident competing needs for records disclosure arise.

In the course of the criminal defence trial Canadian law requires disclosure of the facts the prosecution has gathered against the accused.  This information can be very useful to the Plaintiff in the civil suit against the at-fault motorist.  Is the Plaintiff advancing a Civil Injury Claim entitled to this disclosure or does the law limit this disclosure until the criminal trial concludes?

Reasons for judgement were released today by the BC Court of Appeal addressing disclosure rights when there are competing criminal and civil interests.

In today’s case (Wong v. Antunes) the Plaintiff’s son was struck and killed by a motor vehicle in 2005.  A civil lawsuit was started against the alleged driver Mr. Antunes.  At the same time the alleged driver was charged with ‘criminal negligence causing death’.

In the course of the criminal prosecution the Defendant was provided disclosure by Crown Counsel as required by Canadian law.   He refused to provide these documents to the Plaintiff in the civil lawsuit.  The Plaintiff brought a motion for production and largely succeeded.

The Attorney General for BC, the creator of the records, appealed this order. In allowing the appeal and in modifying the terms under which a civil litigant is entitled to disclosure of records produced in the prosecution of a criminal offence, the BC Court of Appeal held as follows:

[18] The case at bar is complicated, first, by Mr. Antunes’ refusal to even list the VPD documents as being in his possession and, second, by the Crown’s concern that some of the documents or information may jeopardize the on-going criminal proceedings.

[19] The chambers judge was alive to the problems associated with disclosure of the VPD documents.  It appears that he intended to adopt the approach to disclosure approved by the Ontario Court of Appeal in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, 184 C.C.C. (3d) 321 [“Wagg” cited to D.L.R.].

[20] Wagg bears some resemblance to the case before us.  It too concerned the right of a plaintiff to disclosure and production of documents in the possession of the defendant that the defendant obtained as a result of the disclosure process in criminal proceedings brought against the defendant.  In particular, the plaintiff was interested in obtaining statements given by the defendant to the police which the trial judge in the criminal proceedings had ruled as inadmissible because the statements were held to be obtained in violation of his Charter rights.

[21] The Ontario Court of Appeal ultimately endorsed the screening process formulated in the Divisional Court, holding, at para. 48-49:

Like the Divisional Court, I can see no practical way of protecting the interests discussed by that court and by the House of Lords in Taylor without giving the bodies responsible for creating the disclosure, the Crown and the police, notice that production is sought.  Further, where the Crown or police resist production the court must be the final arbiter.

I do not think that the various interests will be protected because of the implied undertaking rule in Rule 30.1.  The fact that civil counsel obtaining production is bound not to use the information for a collateral purpose may be little comfort for persons who once again find their privacy invaded, this time in civil rather than criminal proceedings.  Further, the Stinchcombe obligation on the police and Crown is very broad.  Subject to privilege the Crown must disclose all relevant information.  If there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, the information must be disclosed.  Crown counsel are urged in Stinchcombe at p. 339 to err on the side of inclusion and refuse to disclose only that which is clearly irrelevant.  The courts ought not to apply the discovery rules in civil cases in a way that could have an unintended chilling effect on Crown counsel’s disclosure obligations.

[22] The screening mechanism devised by the Divisional Court was summarized (and endorsed) by the Court of Appeal as follows, at para. 17:

· the party in possession or control of the Crown brief must disclose its existence in the party’s affidavit of documents and describe in general terms the nature of its contents;

· the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced;

· the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice though full access of litigants to relevant information” (para. 51).

[23] The Attorney General identifies a number of practical problems created by the impugned order.  The Stinchcombe package is assembled by the Crown, not the VPD.  The order, as it currently reads, requires the VPD to produce documents, despite the fact that it will not know whether these documents were part of the Stinchcombe package.  More importantly, the Attorney General maintains it is cumbersome in that it contemplates all documents being produced, subject to the police or Crown specifying why a particular document is not required to be produced.  Further, the order contemplates that the Crown must assert public interest immunity on a document by document basis.  The difficulty posed by effectively ordering disclosure of theStinchcombe package is that it fails to recognize that the disclosure under Stinchcombe serves a different purpose than disclosure in the civil context, and that to meld the two is an unfortunate development in the law.  Further, by failing to incorporate the public interest immunity claimed by the Crown in the order, it creates opportunities for unforeseen negative consequences.

[24] The preferable alternative, according to the Attorney General, is for the making of a desk order which recognizes the public interest in maintaining the confidentiality of police — Crown communications as a class, and leaving the parties with liberty to apply as to whether particular documents, or the whole class, should be disclosed in a particular case.

[25] In my opinion, the mischief identified by the Attorney General in the application of the impugned order, namely unfortunate unforeseen consequences that may impair the criminal proceedings, can be rectified by the form of order suggested by the Attorney General, which reads as follows:

ON THE APPLICATION of the [party], without a hearing and by consent;

THIS COURT ORDERS THAT:

1.         the [Chief Constable of municipal police force] [Officer in Charge or the Non-Commissioned Officer in Charge of the location Detachment of the Royal Canadian Mounted Police], or his delegate (“the Police”) be authorized and directed to, within 35 days of receipt of a copy of this Order, find all documents as defined in the Supreme Court Rules, including all handwritten notes of all investigating officers, in the possession or control of the Police relating to [incident] (“the Incident”) and in particular file number [file number];

2.         the Police shall examine the said documents when found, and determine which documents or portions of documents may not be produced because they are:

(a)  any correspondence or communications between the Police and Crown Counsel, or between the Police and solicitors advising them, for the purpose of giving or receiving legal advice;

(b)  documents which it would be contrary to the public interest to produce, and in particular documents which if disclosed:

(i)  could reveal correspondence or communications between the Police and Crown Counsel other than those referred to in subparagraph (a);

(ii)  could prejudice the conduct of a criminal prosecution which is anticipated or has been commenced but not finally concluded, where the dominant purpose for the creation of the documents is that prosecution (not including reports, photographs, videotapes or other records of or relating to the Incident created by or for the Police on their attendance at the scene of the Incident or as a contemporaneous record of such attendance);

(iii)  could harm an ongoing statutory investigation or ongoing internal Police investigation;

(iv)  could reveal the identity of a confidential human source or compromises the safety or security of the source;

(v)  could reveal sensitive police investigation techniques; or

(vi)  could harm international relations, national defence or security or federal provincial relations;

(c)  protected from production by the Youth Criminal Justice Act (Canada), or by any other applicable statute;

3.         the Police shall copy the documents which satisfy the criteria for production referred to in paragraph 2 or such portions of the documents as satisfy the criteria for production referred to in paragraph 2;

4.         the Police shall make the copies available to the solicitor for the Applicant for inspection or collection at [address];

5.         the solicitor for the Applicant shall forthwith enter this Order and deliver a copy to the Police and the solicitors for the parties herein;

6.         any reasonable costs incurred by the Police for the retrieval, production, inspection, copying and delivery of the said documents shall be paid forthwith by the solicitor for the party requesting such retrieval, production, inspection and delivery of the said records;

7.         within seven days after receipt by the solicitor for the Applicant of the said documents from the Police pursuant to this Order, such solicitor shall provide each of the solicitors for the parties herein with a copy thereof and the solicitors for the parties herein shall be at liberty to examine the copies of the documents received by the solicitor for the Applicant from the Police;

8.         any party, the Police and the Attorney General of British Columbia, shall have liberty to apply to the Court to determine which, if any, documents are required to be produced pursuant to this order.

[26] In my opinion, the form of order suggested by the Attorney General balances the plaintiff’s need to obtain information in the police file with the Crown’s need to preserve the integrity of the criminal prosecution.  Further, it permits, in the appropriate case, full debate on the various privilege issues that may arise.

IV.        DISPOSITION

[27] It follows that I would allow the appeal and direct that an order in the form referred to above be entered.

It is not uncommon for insurance companies such as ICBC to conduct video surveillance of plaintiffs involved in injury litigation.  Normally such video evidence is protected by privilege and ICBC does not need to disclose it unless they want to rely on it at trial.  In these circumstances the BC Supreme Court Rules don’t require disclosure until shortly before trial.

What if ICBC shares the evidence with their expert witnesses?  Does this result in a waiver of privilege?  The BC Supreme Court dealt with this issue in 2006 and today reasons for judgement delivered by Mr. Justice Johnston were transcribed and published by the BC Courts website addressing these facts.

In the decision released today (Lanthier v. Volk) the Plaintiff was injured in a motor vehicle collision and was prepared to proceed to trial.  The defence lawyer delivered expert medical reports which relied in part on the facts depicted in video surveillance conducted on behalf of the Defendant.  The Plaintiff asked for disclosure of these films and Defendant refused claiming privilege over the films.

On application of the Plaintiff for disclosure Mr. Justice Johnston held that disclosure of the films to the defendants expert physicians resulted in a waiver of privilege such that the films needed to be disclosed to the Plaintiff.  The courts key reasoning is reproduced below:

[16] The competing consideration is that the tendency given the rules, such as the Evidence Act, ss. 10 and 11, Rule 40A and the rules relating to production, has been over the last number of years away from what used to be a trial by ambush style of advocacy toward pre-trial disclosure, forced or otherwise, in order to prevent two things:  One, impediments to settlement that keeping all one’s cards close to the vest tends to foster, but more to the point, what I indicated was a concern during argument, and that is the possibility, likelihood or probability that late disclosure, as Mr. Turnham would have it when counsel decides to call the witness or tender the written opinion, might lead to an adjournment of the trial, or, at minimum, an argument in the middle of a jury trial whether it should be adjourned.

[17] I conclude that privilege over the video has been waived by the delivery of reports of experts who have stated, each of them, that they have relied upon, in part, what they saw on the video.  I conclude that waiver is more logical, more defensible when what truly is disclosed in the reports ostensibly as the facts upon which the expert — and I refer now particularly to Dr. Warren who most helpfully listed what he observed — the facts upon which the expert relied, is, when really that expert’s interpretation of what the expert saw on the videotape.  It is not possible, in my view, for the opposing party to adequately prepare, either to cross-examine the expert if the expert is called, or to brief the parties’ own witnesses, on the strength of a description in writing of a witness’s interpretation of what is shown on the video.  To adequately prepare for trial the plaintiff must have the videotape to show to his witnesses and to review himself.  Trial fairness, as well as the promotion of efficiency in the courts and the trial process, dictates disclosure, so I order the videotape disclosed forthwith.