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December 30, 2009

Is the information in a statement by an Insured to an Insurer privileged?

Sangaralingam v. Sinnathurai, [2009] O.J. No. 5211 (Master).

During examinations for discovery, information gathered by insurance companies during its process of investigation into a claim, are sometimes the subject of dispute.

For example, counsel for an insurer will usually assert privilege over the document containing a statement made by an insured to the insurer during the course of investigation.

The document itself is privileged. But the question arises whether the "material information" in the statement is also privileged.

Master Short recently dealt with a motion in which the plaintiff sought an Order directing a defendant to disclose information contained in a statement delivered to his insurer following a motor vehicle accident.

Counsel for the plaintiff asserted that even if the statement is privileged, the contents of the statement must be disclosed on discovery.

Master Short quoted Justice Lane in Greco v. Thornhill, [1993] O.J. No. 1347, who wrote that information which is relevant may not be withheld from disclosure merely because it has also been incorporated into a privileged document. For example, with respect to surveillance the questioner is entitled to know what the investigator saw, his knowledge, information and belief, but not to have the document itself. However, the situation is different in the case where the witness has already testified to the facts and what is being requested is not the facts but what the witness said about the facts to her insurer. Justice Lane held that such questioning is clearly devoted solely to the credibility of the witness and the witness is not obliged to respond.

Master Short held that a witness who has been examined for discovery and makes him or herself available to the party opposite to answer any relevant questions is not obliged to then also provide the material information contained in a statement made to its insurer.

1 comment:

  1. This is an odd result, particularly in light of the recent S.C.J. decision in Tiller v. St. Andrew's College (http://www.canlii.org/en/on/onsc/doc/2009/2009canlii32274/2009canlii32274.html)

    Perhaps the result in Sangaralingam v. Sinnarthura turns on the wording in paragraph 10: "Perhaps if the question were reframed there might be a different result...".

    But it seems to me that the the question asked by counsel in Sangaralingam ("You may not give me the statement, but don't you have to give me the information?" and "...[I ask] that you provide me with all of the material information [in] that statement?") is close enough to the question asked by counsel in Tiller v. St. Andrew's. (It's clear that counsel in both cases sought production not of the statement itself, but any material facts in the statement.)

    Whenever I examine a witness who has provided a statement to an insurance adjuster, I simply ask for a summary of any information that is different from what I've already heard from the witness.