Fedotkin v Obodzinski, 2023 ABKB 632

Court of King’s Bench of Alberta Citation: Fedotkin v Obodzinski, 2023 ABKB 632 Date: 20231108 Docket: 2101 13712 Registry: Calgary Between: Yuriy Fedotkin and Iryna Fedotkina Plaintiffs - and - Marek Obodzinski and Dream Ridge Homes Corp. Defendants _______________________________________________________ Memorandum of Decision of the Applications Judge J. Farrington _______________________________________________________ [ 1 ] I heard this matter in morning chambers on September 21, 2023. [ 2 ] The plaintiff Iryna Fedotkina was injured in a motor vehicle accident in 2019.

She was injured in a prior accident in 2015. A significant number of undertakings were in dispute, but the dispute was narrowed to two undertakings arising from the questioning of Ms. Fedotkina: Undertaking 13. To provide all independent medical examinations or other medical/legal reports completed on Ms. Fedotkina in relation to the 2015 accident. Undertaking 14. To provide copies of all functional capacity evaluations and economic assessments completed on Ms.

Fedotkina as the [ sic ] result of the 2015 accident. [ 3 ] The defendants request the information because they say that there is significant overlap between the nature of the injuries presented in this action and those arising from the 2015 accident. After hearing argument, it appears that there is no dispute that there is

overlap in the injuries. Ms. Fedotkina’s contention is that the injuries from the prior accident are resolved. [ 4 ] First, the defendants say that the reports are relevant and material. Second, they say that any litigation privilege that might have attached to the reports in conjunction with the 2015 action is spent because the action was resolved.

The initial head of objection was litigation privilege, but by way of a combination of the oral and written submissions received, the objections were now more broadly framed as being based upon both relevance and materiality and the solicitor and own client branch of privilege rather than litigation privilege per se . [ 5 ] Written submissions were provided at my request in order to deal with the question of whether any claim of privilege survived the first action. The initial written submissions were very helpful.

I have not had regard to the subsequent written submissions provided by the parties for reasons that were conveyed to the parties, with the main one being that they were not requested. [ 6 ] On relevance and materiality, I find that the requested information is relevant and material. The prior reports sought, to the extent that they exist, relate to the injuries and the relief sought in this this action. The relationship between the injuries and medical recovery in a prior accident and a present accident is not a novel concept. It is raised often.

For example, see Bains v Adam , 2023 ABKB 491 , as a recent example where it was necessary to allocate and assess injuries over three accidents. I am satisfied after hearing argument that there is overlap between the injuries claimed arising from the former accident and those in the present accident. [ 7 ] After hearing the arguments and considering Blank v Canada (Minister of Justice) , 2006 SCC 39 , I am satisfied that any litigation privilege that might have attached to the reports sought is spent and no longer applicable.

The reports were not prepared for the dominant purpose of this action and any prior litigation privilege was spent upon resolution of the first accident claim. [ 8 ] In Blank , the Supreme Court of Canada held at paragraphs 34 and 35: 34 The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation. Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose — and therefore its justification.

But to borrow a phrase, the litigation is not over until it is over: It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat. 35 Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield.

Where the litigation has indeed ended, there is little room for concern lest opposing counsel or their clients argue their case “on wits borrowed from the adversary”, to use the language of the U.S. Supreme Court in Hickman , at p. 516. [ 9 ] The plaintiff has now argued that it is actually solicitor and client privilege (which does not end) which would apply here. I disagree. Solicitor and client privilege would apply to communications between counsel and the client, and the solicitor’s working materials and brief.

Litigation privilege deals with communications with third parties and it extends the zone of privilege or privacy to those communications with third parties if they occurred for the dominant purpose of litigation. That is the privilege that ends when the litigation ends. [ 10 ] The plaintiff also argued that a decision by me requiring production would change or significantly alter personal injury practice and affect many cases. I disagree. First, relevant and material non-privileged material is always producible.

The concept of sorting out the relationship between injuries in a prior accident and a present accident is not novel in any way. It is encountered often. Every case turns on its own facts. Here, the accidents were approximately four years apart. While only one factor, the time between the accidents is not excessive. [ 11 ] Reports are generally presented to attempt to quantify recovery in a personal injury case. In the present case, the plaintiff asserts that the injuries were all resolved from a health perspective. The relationship between the prior reports and the present case is clearly important.

The objections were largely hypothetical because no review or analysis was presented by the plaintiff as to what reports were prepared and what use was made of them in the prior action. [ 12 ] The burden of establishing privilege for materials that are otherwise relevant and material is on the party claiming privilege. The plaintiff chose to not make efforts to locate or request and review the material sought so that it can otherwise be reviewed for potential redactions or privilege claims. The plaintiff now requests the opportunity to do so if production is ordered. In my view, it is too late.

If the plaintiff does not have the reports, a request to prior counsel has clearly been within the power and control of the plaintiff throughout. I am concerned that a further review would only lead to further disputes and claims about producibility and privilege. The time to succeed on the privilege claim (or relevance and materiality arguments) with the collection of the necessary facts was at the present time on this application. [ 13 ] As a result, I order that Undertaking 13 and Undertaking 14 answered. [ 14 ] As to costs, both parties made submissions in their written materials.

The defendants will have standard

Schedule C costs related to the application against Ms. Fedotkina payable forthwith (to be assessed if the parties cannot otherwise agree). While the defendants withdrew other aspects of their compelling application, that saved costs for everyone and resolution ought to be encouraged, even if the withdrawal unfortunately came late. The central issue in the application was the prior reports issue. [ 15 ] Thank you very much to the counsel for the parties for their very helpful oral and written submissions. Heard on the 21 st day of September, 2023 Dated at the City of Calgary, Alberta this 8 th day of November, 2023.

J. Farrington A.J.C.K.B.A. Appearances: HMC Lawyers LLP Sean Manery for the Applicants/Defendants Resolute Law Group Murray A. Harris for the Respondents/Plaintiffs