A recent motion decision deals with two issues that can arise in defending claims: the extent of litigation privilege with respect to statements made following an incident, and whether reviewing such a statement prior to examination for discovery waives privilege.
In Knox v. Applebaum Holdings, 2012 ONSC 4181 (CanLii) the plaintiff brought a motion seeking production of a statement prepared by the defendant’s property manager following an accident in its parking lot. The accident occurred at 8:55 p.m.. The property manager was quickly notified, travelled to the parking lot, took pictures and called her risk manager to report what she had found at 12:35 a.m. At this point, she was aware that two people had been injured. She typed up a statement detailing 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 later that day.
On the motion, the issues were whether the statement was protected by litigation privilege and whether privilege was lost when the property manager reviewed it when she prepared for her examination for discovery.
Justice Hockin held that litigation privilege attached to the document. The property manager knew there was an accident and that two people had been injured. She believed that litigation would follow. It did not matter that the defendant was not represented by counsel at the time. The dominant purpose of the document was to facilitate her employer’s defence and to assist in her forensic involvement of the case.
Privilege was not waived. Justice Hockin relied on Wronick v. Allstate (1997), 7 C.P.C. (4th) 285 (Gen. Div.) where Justice Leitch held that reviewing a privilege document to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of privilege.