Craig v. Smith,


2010 BCSC 1082

Date: 20100730

Docket: M116085

Registry: New Westminster


Daniel Craig



Ryan Lawrence Smith



Insurance Corporation of British Columbia

Third Party

Before: Master Caldwell

Reasons for Judgment

Counsel for the Plaintiff:

R.W. McMullan

Counsel for the Defendant:

No Appearance

Counsel for the Third Party:

C. Davidson

Place and Date of Hearing:

New Westminster, B.C.

July 12, 2010

Place and Date of Judgment:

New Westminster, B.C.

July 30, 2010


[1]             The plaintiff applies for production of documents over which the third party ICBC claims litigation privilege.

[2]             The action arises from a single vehicle accident which occurred on December 17, 2006. An SUV was being driven by the defendant; he has now been convicted of an alcohol related offence regarding the incident. The plaintiff was riding in the back luggage area of the SUV and was not wearing a seatbelt. There were other people occupying the seats of the vehicle; it went out of control and rolled. Several people were injured, several ICBC files were opened and at least one other legal action has been filed.

[3]             When the motion for production was filed, there had clearly been inadequate listing and disclosure of documents by the third party; I need not particularize the problems as virtually all of them have been acknowledged and remedied by agreement. In particular, counsel for the third party has agreed that the redaction for litigation privilege must be done by counsel; it is not to be done by the Freedom of Information Officer, a legal assistant or an adjuster. Counsel for the third party agreed during the second day of argument that he must and will review each of the more than 400 individual pages of documents as well as several disks of photographs and will thereafter provide a proper listing of documents.

[4]             I must however ask:  Why has it taken over a year, several written demands, a formal application to court and a day of argument, over the course of two days, to get counsel to undertake the task which should have happened by Fall, or at the latest, the end of 2009?

[5]             It is counsel’s duty to determine relevance and claims of privilege; see G.W.L. Properties Ltd. v. W.R Grace & Co., [1992] B.C.J. No. 2387. There is an obligation to describe documents in sufficient detail to enable other parties to assess the validity of the claim of litigation privilege; see Hetherington v. Loo et al, 2007 BCSC 129 and Nanaimo Shipyard Ltd. v. Keith et al, 2007 BCSC 9. The dominant purpose test is still the appropriate test to be applied in determining litigation privilege but is “more compatible with the contemporary trend favouring increased and reciprocal disclosure which is the hallmark of the judicial process”; see Blank v. Canada (Minister of Justice), 2006 SCC 39.  This is all well settled law.

[6]             It is tempting in this case to find that the third party has had more than adequate time to provide proper disclosure, that he has failed to meet the burden on it to support its claim of litigation privilege on all or most of the documents created before the filing of the Statement of Defence and to simply order disclosure and production of everything created prior to May 27, 2009. In my view that would be wrong and punitive.

[7]             Upon a full review of the materials before me and the submissions of counsel, I am satisfied that the plaintiff has now received or will be receiving considerable additional disclosure; perhaps all disclosure which he originally sought. I am also satisfied that he would not have received such disclosure without this application.

[8]             In addition, I am left with a series of Lists of Documents which have been modified to such an extent that they no longer coincide with the sworn evidence and the submissions of counsel; even the Further Amended List of Documents (undated) and the Second Supplemental List of Documents dated June 24, 2010 have been superseded by the inclusion of some of the “privileged” documents in the sworn material and agreements between counsel.  Given the various Lists, draft Lists and Supplementary Lists and the internal inconsistency and duplication of numbering, I am unable to determine which documents remain subject to a claim of privilege.

[9]             The application of the plaintiff will be adjourned generally. Counsel for the third party is ordered to produce by August 6, 2010 a full, consolidated, current and complete List of Documents; that List is to include a complete and current Part III which is to properly identify, document by document, all claims of litigation or other privilege and is to include sufficient detail as will allow the plaintiff to assess the claim of privilege. The plaintiff will have liberty to reset this application for further disclosure or challenge of privilege claims should that be necessary and I will remain seized of that application/continuation. The costs of this application to date and including one and a half days of hearing are to the plaintiff in any event of the cause, payable forthwith upon assessment.

“Master Caldwell”