This personal injury claim arises from injuries suffered while the claimant was a guest at the defendants’ home. The claimant brought this application for an order that the defendants disclose an independent adjuster’s report and audio statements over which litigation privilege was claimed.(Drewniak v. Law, 2017 BCSC 1565)

The documents sought were created after the personal injury lawyer for the claimant sent letter asking the defendant to contact her home insurance provider about the incident.  In the letter the lawyer also stated that they intended to start a personal injury lawsuit.

 Upon receipt of this letter the insurance company for the homeowner retained an independent adjuster who in turn took statements from the defendants and witnesses to the event in question and prepared a written report. The adjuster also had communications with the claimant’s lawyer but the claimant would not agree to be interviewed by the adjuster unless there was a quid pro quo exchange of witness statements or the adjuster’s notes. The adjuster did not agree to release any information regarding witnesses, pending receipt of instructions from the insurer. No exchange of statements ever occurred.

The insurance adjuster deposed that he was retained by the defendants’ insurer to “investigate and report on [this] alleged slip and fall that occurred at the defendants’ residence.” The claimant argued that the the documents should be produced because the purpose of the report was primarily, or even equally, investigative, particularly when considering all of the evidence regarding the timing and creation of the documents. As the court explained:

[4]  The dominant purpose test is discussed in Raj v. Khosravi, 2015 BCCA 49:

[17]  A claim of privilege will succeed when a party can establish that a document produced for dual or multiple purposes, one of them being litigation, was produced for the dominant purpose of litigation. There is no absolute rule for determining whether litigation was the dominant purpose for the document’s production (Hamalainen at para. 25). A finding of dominant purpose involves an individualized inquiry as to whether, and if so when, the focus of the investigation/inquiry shifted to litigation. This is a factual determination to be made based on all of the circumstances and the context in which the document was produced. As Wood J.A. explained in Hamalainen:

[24]  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. [Emphasis added.]

Master Bouck was persuaded that the defendants met the dominant purpose test and the claimant’s application was dismissed with costs to the defendants in the cause.

Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A. LL.B.

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