2013 NBCA 4, 2013 NBCA 4

COURT OF APPEAL OF NEW BRUNSWICK 131-11-CA KAREN BENNETT (Plaintiff) APPELLANT KAREN BENNETT (Demanderesse) APPELANTE - and - - et - STATE FARM FIRE AND CASUALTYCOMPANY (Defendant) RESPONDENT STATE FARM FIRE AND CASUALTYCOMPANY (Défenderesse) INTIMÉE Bennett v. State Farm Fire and Casualty Company,2013 NBCA 4 Bennett c.

State Farm Fire and Casualty Company,2013 NBCA 4 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: October 4, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 4 octobre 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 273, 377 N.B.R. (2d) 333 Décision frappée d’appel : 2011 NBQB 273 , 2011 NBBR 273, 377 R.N.-B. (2e) 333 Preliminary or incidental proceedings: [2011] N.B.J.

No. 412 (C.A.) Procédures préliminaires ou accessoires : [2011] A.N.-B. no 412 (C.A.) Appeal heard: April 11, 2012 Appel entendu : Le 11 avril 2012 Judgment rendered: January 10, 2013 Jugement rendu : Le 10 janvier 2013

Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard Concurred in by: The Honourable Justice Bell The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Bell L’honorable juge Green Counsel at hearing: For the appellant: George A. McAllister For the respondent: Peter M. Rogers, Q.C. and Leanne Murray Avocats à l’audience : Pour l’appelante : George A. McAllister Pour l’intimée : Peter M. Rogers, c.r., et Leanne Murray THE COURT The appeal is dismissed with costs of $5,000.00. LA COUR Rejette l’appel avec dépens de 5 000 $.

The judgment of the Court was delivered by RICHARD J.A. I. Introduction [1] Karen Bennett’s home was destroyed by fire and her insurer, State Farm Fire and Casualty Company, refused to pay her claim. Ms. Bennett sued. State Farm sought to obtain documents that were prepared in regard to police investigations carried out with respect to the origin of the fire and an early break into Ms. Bennett’s home. State Farm believes the documents may be relevant to its position that Ms. Bennett’s home was vacant for more than 30 days, which allegation is at the root of State Farm’s denial of the claim.

[2] In an earlier motion, State Farm sought to obtain the documents directly from the RCMP, but was unsuccessful: Bennett v. State Farm Fire and Casualty Company , 2011 NBCA 27 , 369 N.B.R. (2d) 22 , (“ Bennett No. 1 ”). In the aftermath of that decision, Ms. Bennett provided State Farm with an Affidavit of Documents, which revealed she was already in possession of documents from the RCMP file. However, she claimed “privilege” over the documents. State Farm then applied for an order under Rule 31.06(

c) for the production of these, and a judge of the Court of Queen’s Bench granted the relief sought: 2011 NBQB 273 , 377 N.B.R. (2d) 333 . Ms. Bennett appeals that decision to this Court, raising numerous questions including public interest immunity, documentary relevance, litigation privilege, and the use of police files for collateral purposes. For the reasons set out below, I am of the view that none of her grounds of appeal has any merit. II.

Background [3] Although t he underlying action in this matter is relatively simple, it has not progressed much beyond interlocutory proceedings in both the Court of Queen’s Bench and the Court of Appeal. The pleadings allege that Ms. Bennett was the owner of a certain property that was destroyed by fire on June 19, 2008. She submitted a proof of loss to her insurer, State Farm, but her claim was denied on the grounds that: (1) the home had been vacant for more than 30 consecutive days; (2) there had been a material misrepresentation regarding the vacancy of the home; and

(3) Ms. Bennett failed to give notice of a material change in the risk when the home became vacant. [4] In the normal course of events, one would expect this matter to have been resolved by now. The Notice of Action was issued on June 18, 2009, and a Statement of Defence was filed on December 29, 2009. However, interlocutory procedural wrangling has twice brought the parties to the Court of Appeal.

The common ground between the two appeals is that they relate to certain documentation produced or obtained in the course of RCMP investigations into (1) the fire that is the subject-matter of the underlying action, and (2) an earlier break and enter into Ms. Bennett’s home. [5] The motions that have twice brought the parties to the Court of Appeal arose in the course of the discovery process. The relevant chronology is described below. [6] On December 23, 2009, State Farm forwarded to Ms. Bennett a Notice Requiring Affidavit of Documents, and, on February 5, 2010,

it forwarded a copy of its own Affidavit of Documents. In that Affidavit, the deponent, on behalf of State Farm, listed the two RCMP files mentioned above in

Schedule “D”, as documents relating to matters in issue in the action that are in the possession or control of others. [7] In June 2010, State Farm brought a motion seeking production of those files, which motion resulted in Bennett No. 1 . While the RCMP effectively consented to producing the files, it did not agree to do so without a court order. Ms.

Bennett objected to the production of the documents on grounds that Chief Justice Drapeau, for the Court, described as follows: […] (1) the judiciary's imprimatur is being sought for a "fishing expedition"; (2) there is no admissible evidence identifying what documents are collected in the targeted files, and perforce, establishing that any relate to the one and only material issue, the applicability of the vacancy exclusion; (3) there is no evidential basis for the conclusion that it would be inequitable to force the insurer to trial without discovery of those file documents; and (4) some of those documents might well be subject to a privilege claimable by her. […] [para. 5] [8] Over Ms.

Bennett's objections, a judge of the Court of Queen's Bench ordered production of the documents. However, that decision was set aside on appeal as not being authorized by Rule 31.11 of the Rules of Court . First, this Court concluded that the RCMP is not a person within the meaning of Rule 31.11. Second, the order of the Court of Queen’s Bench was found to be overly broad.

Third, State Farm had not discharged its burden of establishing “a sufficient likelihood of relevance between, on the one hand, adequately described documents in the numbered RCMP files and, on the other, the applicability of the vacancy exclusion” (para. 27). Lastly, State Farm had not demonstrated that “it would be inequitable to have it undergo trial without the benefit of the sought-after documentary discovery”, and therefore not satisfied the “discovery necessity” requirement of Rule 31.11 (4) (para. 28). [9] In the aftermath of Bennett No. 1 , State Farm filed a motion, in June 2011, to compel Ms.

Bennett to produce an Affidavit of Documents, as she had not yet complied with the obligation triggered by the Notice Requiring Affidavit of Documents. [10] On July 5, 2011, Ms. Bennett produced a draft Affidavit of Documents, and on July 26, 2011, forwarded to State Farm an executed,

and more detailed, Affidavit of Documents. The motion to compel production of an Affidavit of Documents was presumably withdrawn. [11] State Farm’s review of Ms. Bennett’s Affidavit of Documents resulted in the motion that has led to the present appeal. In

Schedule “B”, Ms. Bennett lists documents in her possession or control relating to the matters in issue in the action over which she claims privilege. Included among these are the following: 44B. Correspondence from the Royal Canadian Mounted Police to George A. McAllister P.C.: (

a) Correspondence dated May 26, 2010 from Sgt. Pat Cost of the Royal Canadian Mounted Police to George A. McAllister P.C. enclosing the following: (

i) Various sections of the Privacy Act ; (ii) Record Correction Request Form, which has not been completed by the Plaintiff; (iii) Occurrence Details re: occurrence 2008698620. The occurrence type is described as arson - damage to property 434 CC (FIP) and the occurrence time is 2008/O6/19; (iv) Person Details re: Karen Bennett, which was collected by the RCMP; (

v) Joseph Wallace Rheal Luce's Curriculum Vitae, who is employed by Trace Evidence Services at National Forensic Services - Ottawa; (vi) Consent to Search executed by Karen Bennett dated June 19, 2008; (vii) List of items seized by the RCMP following the investigation of the fire at the Plaintiff's residence; (viii) File Folder Status for file 2008-698620 with no information filled in on the form; (ix) Photographs relating to RCMP file 2OO8-698620, which is the investigation of the fire at the Plaintiff's residence; (

x) Pros Scanning Checklist by Investigator Bertram regarding file number 2008-698620 completed on 2008/06/20; (xi) Request for Forensic Laboratory Analysis by the RCMP with respect to file 2008-698620 sent on 2008-06- 27; and (xii) Pros Scanning Checklist by Investigator Bertram regarding file number 2008-698620 completed on 2009-01-20.

[12] State Farm alleges, and Ms. Bennett does not deny, that the documents listed above were in Ms. Bennett’s possession during the entire period during which Bennett No. 1 made its way through the courts. This fact was unbeknownst to State Farm and to the courts, because Ms. Bennett had not complied with the Notice Requiring Affidavit of Documents that had been forwarded to her on December 23, 2009. Had Ms.

Bennett complied with Rule 31.03(2) by filing and serving her Affidavit of Documents within the time prescribed, it would have been known she was already in possession of some of the documents State Farm sought to obtain directly from the RCMP in the motion that lead to Bennett No. 1 . As it turns out, State Farm only became aware Ms. Bennett was in possession of these documents when she forwarded a draft Affidavit of Documents, and later a sworn one, in July 2011. [13] In any event, Ms. Bennett objects to producing the documents in question on the following grounds: (

i) the said documents were part of the RCMP file, which was opened following the fire at the Plaintiff's residence on June 19, 2008 and as such are privileged from disclosure and production pursuant to s.7, s.8 and s.26 of the Privacy Act , R.S.C. 1985, c. P-2l and that the statutory privilege has not been waived by production to the Plaintiff, pursuant to s. l2(l), 22(l)(a)(

i) and s. 26 of the Privacy Act , who obtained the said documents after she contemplated or commenced this litigation for the dominant purpose of seeking legal advice with respect to this litigation and that as such the said documents are subject to statutory privilege and litigation privilege; (ii) the RCMP and the Plaintiff have common interest privilege in the same documents in that the RCMP was authorized only to release the said documents to the Plaintiff and the Plaintiff obtained the said documents from the RCMP pursuant to a statutory provision pursuant to which only she could obtain the said documents and she did so after she contemplated or commenced this litigation and for the dominant purpose of this litigation, and the said documents are still subject to a statutory privilege in the possession or control of the RCMP which has not been waived; (iii) the Plaintiff filed her Notice of Action with Statement of Claim Attached on June 18, 2009; (iv) the Plaintiff applied to the RCMP for production of the documents pursuant to s.12(1) of the Privacy Act on March 25, 2010; (

v) the Plaintiff obtained the documents from the RCMP on May 26, 2012; (vi) the RCMP’s production of the documents to the Plaintiff did not constitute a waiver of the statutory privilege; (vii) the RCMP does not have any authority to waive the statutory privilege over the said documents; (viii) only the RCMP could exempt the documents; (ix) the RCMP have a duty to preserve the statutory privilege over the documents;

(

x) the Plaintiff has an interest in maintaining confidentiality over the said documents and wishes to do so; (xi) the Plaintiff obtained the documents from a confidential or privileged source, which was the RCMP; (xii) any statements the Plaintiff made to the RCMP, which were recorded by them, are subject to the statutory privilege and Crown immunity. [14] On July 18, 2011, State Farm filed a motion challenging Ms. Bennett’s claim of privilege over the documents. The motion judge allowed the motion and ordered the documents produced for inspection. [15] In her decision, the motion judge noted that Ms.

Bennett relies upon claims of litigation privilege, statutory privilege under the Privacy Act , R.S.C. 1985, c. P-21, and public interest immunity, in support of her refusal to disclose any of the documents she obtained from the RCMP. The judge addressed each claim in turn. [16] With respect to litigation privilege, the motion judge noted Ms. Bennett’s argument that her counsel had gathered the documents in the course of litigation and State Farm’s reply that the documents were created as part of investigations and not for the purpose of this litigation.

The judge reviewed the law cited by both sides and concluded “there is no litigation privilege over the documents listed in

Schedule "B" of the Plaintiff's Affidavit of Documents” because “[t]hey were not created for this litigation, but simply obtained to prepare for the litigation.” The judge noted that “[t]he Plaintiff put the vacancy of her home in issue in the pleadings, consequently the onus is on her to establish that the documents have no relevance to the litigation.” She found that State Farm “has provided evidence that the documents may be both necessary and relevant to the litigation” and that the files produced as part of the RCMP investigation were “both necessary and relevant in terms of the issue of vacancy of the premises” (para. 18). [17] On the question of statutory privilege, the judge stated that Ms.

Bennett put forth the Privacy Act as the foundation for such a privilege. She then noted State Farm’s position that any such privilege would have been waived when the documents were unconditionally released to Ms. Bennett. The judge held that “on a review of the sections cited under the Privacy Act it is difficult to see how they apply in this case” (para. 22). She reviewed ss. 7, 8 and 26, upon which Ms. Bennett relied, and noted that none of them relate to a situation like the present one. The motion judge eventually concluded that no evidence of a common interest between Ms.

Bennett and the RCMP had been established that might “extend these sections of statutory privilege for the benefit of the Plaintiff” (para. 23).

[18] As for public interest immunity, the judgeruled as follows: Finally, the Plaintiff suggests the documents are privileged and confidential and aresubject to public interest immunity. There was no evidence to suggest that when theRCMP released these documents to the Plaintiff that she received the documents inconfidence from the RCMP. There is no evidence in the case at bar to suggest that the "public interest is so strongas to override the ordinary right and interest of a litigant" (see para. 10 ofSmerchanski v. Asta Securities Corp., (ON CA), [1981] O.J. No.2906; 31 O.R.(2d) 705 (C.A.)).

According to Smerchanski (supra) a public interest privilege does not belong to aprivate party, but is usually asserted by the government. Accordingly, in the case atbar there is no public interest in the released RCMP documents to protect. Publicinterest immunity does not extend to the Plaintiff, only to a government agency. [paras. 24-26] [19] In the end, the motion judge allowed themotion and ordered Ms. Bennett to disclose or produce for inspection the documentsin question and ordered that she pay costs in the amount of $1,500. Ms.

Bennettsought leave to appeal the motion judge’s decision, raising thirteen grounds ofappeal. On November 18, 2011, a judge of this Court allowed the motion for leave toappeal, but specified the grounds of appeal that could be advanced: [2011] N.B.J. No.412 (C.A.) (QL). III. Issues on Appeal [20] Ms. Bennett appeals the motion judge’sdecision on the following grounds: (1) the motion judge failed to consider that the Respondent had failed to prove that it had served the Attorney General for NewBrunswick and the Attorney General for Canada with the Respondent's Notice of Motion;

( 2 ) the motion judge failed to consider that the Respondent had not proved that the said documents related to a matter in issue in the action; ( 3 ) the motion judge failed to consider that the Respondent had not proved that the Attorney General for New Brunswick and the Attorney General for Canada had waived public interest immunity over the said documents and that the Appellant had done so; ( 4 ) the motion judge failed to consider that litigation privilege extends to ingathered documents that are subject to public interest immunity; ( 5 ) the motion judge failed to consider that documents from the Crown brief or police file should not be used for parasitic or collateral purposes.

IV. Analysis [21] For the reasons set out below, I am of the view none of the grounds of appeal have any merit. A. Service of the Notice of Motion on the Attorneys General [22] State Farm’s motion sought the disclosure or production of the documents listed as Item 44B in Ms. Bennett’s Affidavit of Documents. The motion invoked Rule 36.01, which provides as follows:

31.06 Where Affidavit Incomplete orPrivilege Improperly Claimed Where the court is satisfied that a documenthas been omitted from or inadequatelydescribed in an Affidavit of Documents, or aclaim of privilege may have been improperlymade therein, the court may (

a) order cross-examination upon theAffidavit of Documents, (

b) order delivery of a further and betterAffidavit of Documents, (

c) order the disclosure or production forinspection of any document, or any part ofany document, which is not privileged, and (

d) inspect any document for the purpose ofdetermining the validity of a claim ofprivilege. [Emphasis added] 31.06 Affidavit incomplet ou privilège nonjustifié Lorsque la cour est convaincue qu’undocument a été omis d’un affidavit desdocuments, que sa description n’est pasadéquate ou qu’une revendication deprivilège n’est pas justifiée, elle peut

a) ordonner qu’il y ait contre-interrogatoiresur l’affidavit des documents,

b) ordonner la délivrance d’un autreaffidavit des documents plus complet,

c) ordonner la divulgation ou la productionpour examen de tout document non privilégié,en tout ou en

partie et

d) examiner tout document afin de décider sila revendication de privilège est justifiée. [C’est moi qui souligne] [23] The role of the Court at the motion was todetermine whether a claim of privilege had been improperly made in the Affidavit. At the hearing of the motion, Ms. Bennett asked the motion judge to apply theprinciples set out in D.P. v. Wagg, (ON CA), [2004] O.J. No. 2053(C.A.)(QL), addendum [2004] O.J. No. 2745 (C.A.)(QL), and to refuse to hear themotion because neither the Attorney General of Canada, the Attorney General ofNew Brunswick nor the RCMP had been served with the Notice of Motion.

Themotion judge did not address the question in her reasons for decision. Evidently, shethought it unnecessary for State Farm to have served them with the Notice of Motion. In my view, she was right. [24] Wagg was an appeal from an order of theDivisional Court concerning “the right of a plaintiff to disclosure and production ofdocuments in the possession of the defendant that the defendant obtained as a resultof the disclosure process in criminal proceedings brought against the defendant”(para. 1).

In particular, the plaintiff wanted to obtain production of statements thedefendant had given to the police, which statements had been excluded from thecriminal proceedings because they were found to have been obtained in violation ofrights guaranteed under the Canadian Charter of Rights and Freedoms. The

Divisional Court had ordered disclosure of the Crown brief in the defendant’saffidavit of documents but only required him to produce the contents of the brief“after the Superior Court of Justice had screened them at a hearing of which theAttorney General and the relevant police service were entitled to notice, or if thepolice, the Attorney General and the parties consented to the production” (para. 1). However, the Divisional Court held the defendant was not required to produce thestatements he had given to the police.

On appeal, the screening mechanism devisedby the Divisional Court was generally agreed with, but the Court of Appeal held that,subject to that screening mechanism, the statements should also be disclosed. [25] Ms. Bennett submits the principles set out inWagg apply in the present case because “police documents and the Crown briefshould not be treated as ordinary documents under the Rules of Court”.

She arguesthat the “police and Crown may be concerned about the identity of informants orinvestigative techniques” and “the public may be concerned about the revelation oftheir identities and the information they have forwarded to the police.” I note,however, that no “Crown brief” is involved here. There is no evidence any documentswere created, obtained or assembled to be submitted to the Crown, as represented bythe Attorney General, for the purpose of any criminal charges. [26] In my view, this ground of appeal has nomerit. The principles set out in Wagg simply do not apply in the present case.

Waggwas a matter where the Crown made disclosure of information to an accused in acriminal case, who later became the defendant in a civil matter.

Throughout hisanalysis, Rosenberg J.A. makes it clear that the rationale behind a screeningmechanism in such circumstances relates to the fact the documents were “producedthrough the criminal disclosure process” (para. 32), pointing out that “documentsdisclosed by the Crown as part of the disclosure process are of a different character”(para. 38), and explaining that this “disclosure is compulsory and required because ofthe public interest in ensuring that the accused obtains a fair trial of the criminalcharges” (para. 46). He explained that the disclosure obligation imposed on the policeand Crown in R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326, [1991S.C.J. No. 83 (QL), is very broad: the Crown must disclose all relevant information,subject only to “privilege” (para. 49). [27] Stinchcombe is commonly cited as the modernauthority for compelling Crown disclosure to an accused of all materials gathered inthe course of a criminal investigation, subject only to a few exceptions. The reasonfor such a broad disclosure obligation is to ensure an accused can make full answerand defence to the criminal charge. [28] When documents are disclosed to an accused

pursuant to the Stinchcombe obligation, their disclosure is made for the sole purpose of enabling the accused to make full answer and defence. These documents may contain sensitive information affecting public or third party interests, which, but for the Stinchcombe obligation, would generally be protected through non-disclosure. This is what prompted the Divisional Court in Wagg to create a screening process to ensure that the disclosure of such documents in a civil matter might only be made once important state and other third party interests have been taken into account.

The Court of Appeal agreed that such a screening mechanism is part of a superior court’s “inherent power to control its process and to protect that process from being abused or obstructed” (para. 27). The first component of this screening mechanism requires a person who is a party to a civil action and who acquires a “Crown brief”, which I would define as disclosure of any materials under the Stinchcombe obligation, to “disclose the existence of the Crown brief in the party’s affidavit of documents and describe in general terms the nature of its content” (para. 17).

The next components of the mechanism are described as follows: The party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the documents should be produced; The judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information. [para. 17] [29] In

summary, the Attorney General and the police must be provided with an opportunity to object before information disclosed pursuant to Stinchcombe is released to others under the disclosure obligations set out in the Rules of Court for civil matters. This way, the Crown and the police can ensure that, where appropriate, public interest and third party privacy interests are not compromised. This is the justification for the screening mechanism adopted in Wagg . [30] The reasons given to justify a screening mechanism such as that set out in Wagg are compelling.

However, as persuasive as Wagg would be for the imposition of a similar mechanism in New Brunswick, it simply has no application in the present case because none of the documents in issue

were disclosed to Ms. Bennett as part of the Stinchcombe obligation. The Wagg rationale for notice to the Attorney General and the relevant police service is to provide them with an opportunity to object to any dissemination of information they were required by law to disclose to the accused. However, in the present case, the disclosure was made pursuant to a request to the RCMP either under the Access to Information Act , R.S.C. 1985, c. A-1, or the Privacy Act . Ms.

Bennett’s affidavit of documents refers to the latter, while her counsel has also argued the former. [31] Unlike the situation in Wagg , the Attorney General had no involvement in the present matter, and there was no broad disclosure obligation. Regardless of the particular statute under which Ms. Bennett made a request for access, the obligation to disclose was a statutory obligation and it was subject to its own screening mechanism.

In particular, s. 22 of the Privacy Act and s. 16 of the Access to Information Act, together with the relevant regulations, each empower the head of a government institution to refuse disclosure in certain cases where the disclosure is sought from the RCMP. In the present case, Ms. Bennett, through her counsel, has acknowledged that portions of the documents provided to her have been redacted. Evidently, the documents have been subjected, as they should have, to the statutory screening mechanism provided for in the legislation under which they were produced.

Whether they have been or not, the fact remains that there was a mechanism in place for the type of public and third party interest protection the Court referred to in Wagg . It is a mechanism Parliament has entrusted to the head of the government institution involved. [32] In

summary, there are significant differences between Wagg and the present case. Unlike the situation in Wagg , where the disclosure to the defendant was compelled pursuant to the broad Stinchcombe obligation, the disclosure to Ms. Bennett in the present case was subjected to a statutory screening mechanism. Unlike the situation in Wagg , the disclosure in the present case was not made for the limited purpose of enabling an accused person to make full answer and defence. There is no evidence the RCMP imposed any condition upon the release of the information to Ms.

Bennett. [33] Simply stated, there are no reasons to import into this case any of the procedural steps adopted in Wagg in order to protect public or third party interests. Undoubtedly, the motion judge recognized this, and saw no need for notice of the motion to have been given to the Attorney General or the RCMP. In coming to this conclusion, she did not err as alleged in the first ground of appeal. B. Relevance of the documents

[34] Ms. Bennett submits that State Farm had anobligation to prove the subject documents relate to a matter in issue in the action. She relies on the decision of this Court in Bennett No. 1, where the Chief Justice heldthat, in a motion for relief under Rule 31.11, seeking the production of documents inthe possession of a non-party, the party seeking such relief “bears the burden ofdemonstrating that the application is not in the nature of a ‘fishing expedition’”(para. 24).

The Chief Justice’s statement is not surprising, since Rule 31.11(3)expressly states that “[n]o order shall be made under this subrule for the productionfor inspection of a document unless the court is satisfied that the document relates toa material issue in the action.” [35] Once again, Ms. Bennett relies on a case thatsimply has no application to the present circumstances. This matter does not involvethe production of documents in the possession of a non-party. This is a motion for theproduction of a document that is listed in Ms. Bennett’s Affidavit of Documents.

Rule31.03 required her to list in that affidavit only documents that relate to a matter inissue in the action. In fact, Ms. Bennett identifies the documents in question asdocuments in her “possession or control relating to the matters in issue in thisaction.” In a motion under Rule 31.06(c), it is the claim for privilege that isscrutinized, not the relevance of any document, since the relevance is established bythe very fact the document is listed in the Affidavit of Documents. [36] There is simply no merit to this ground ofappeal. C. Public interest immunity [37] Ms.

Bennett alleges the motion judge erred infailing to consider that neither the RCMP nor the Attorneys General of Canada andNew Brunswick had waived public interest immunity over the documents the RCMPhad disclosed to her. With respect, the motion judge did consider the question ofpublic interest immunity and held that such immunity does not extend to the plaintiff,but only to a government agency. [38] In Smerchanski v. Lewis; Smerchanski v. AstaSecurities Corporation Limited, (ON CA), [1981] O.J. No. 2906(C.A.) (QL), the Court observed as follows:

A ministerial affidavit stating the basis for the claim of public interest privilege is not necessary in all cases for the reasons given by Sopinka and Lederman in The Law of Evidence in Civil Cases (1974), at p. 239: Unlike the private privileges such as that relating to communications passing between a solicitor and his client, this public privilege belongs not to any private party, nor to any witness.

It is usually asserted by the government, but it would appear that even in the absence of governmental objection, the judge should prohibit disclosure if he feels it will be harmful to the fabric of the state. ... The government can make claim to the privilege in all proceedings, whether it is a party to them or not. Moreover, any party or witness may draw the court's attention to the nature of the evidence with a view to its being excluded. It is not a privilege which may be waived. The privilege can be claimed in any way which the Court considers appropriate.

As a general rule it is preferable that it should be based on an affidavit from a Minister because the nature of the documents and the harmful effects of disclosure are matters within his peculiar knowledge. These considerations do not apply in this case. The objection to disclosure was made in Court by counsel for the Attorney-General.

The claim for privilege was rooted in concepts basic to the administration of justice and no affidavit evidence was required to inform the Court on the reasons for the objection. [para. 16.] [39] I accept that there may be situations where a court has an obligation to scrutinize documents if the judge feels disclosure of these might be harmful to the “fabric of the state,” in that the disclosure might damage, for example, national security, international relations, or government decision-making or functioning, but this is not one of those cases.

There was nothing on the record that might have led the judge to even suspect a valid claim for public interest immunity, because any such claim would have already been asserted through the exercise of the screening processes outlined in the Access to Information Act or the Privacy Act when the documents were disclosed to Ms. Bennett. [40] Ms. Bennett invokes a number of cases in support of the proposition that the inadvertent disclosure of documents or even, in some cases, disclosure to third parties do not necessarily constitute a waiver of privilege.

She seeks to extend this to public interest privilege or immunity. Ms. Bennett says that just because the RCMP disclosed the information to her does not mean they waived any privilege they might otherwise have on the documents. State Farm replies by pointing out that “[b]y releasing the documents to [Ms.] Bennett – a person over whom the RCMP had no control – the RCMP or the governmental authority that deals with its Privacy Act requests have indeed waived public interest

immunity” because they “would assume when disclosing them that [Ms.] Bennett would have the ability to make any use of the documents that suited her, or to which she was bound by law, including disclosing them voluntarily or under the Rules of Court to a civil litigation defendant, using them as evidence in Court at a trial, or even publishing them in a newspaper if she saw fit.” [41] In my view, disclosure of the documents in the circumstances of this case, where the documents were screened pursuant to the mechanism set out in the relevant statute before their unconditional disclosure to Ms.

Bennett, is only consistent with there being no claim of public interest immunity. In my view, this is not a question of waiver. It is a question of there being nothing in the documents over which immunity from disclosure could be claimed. [42] Ms. Bennett argues the principles set out in Pinder v. Sproule , 2003 ABQB 33 , [2003] A.J. No. 32 (QL) , referred to in Reilly v. Paul, 2006 NBCA 84 , 305 N.B.R. (2d) 146 , are apposite in this case. With respect, they are not. Pinder involved a claim that privilege was lost over medical-legal reports that had been provided to the plaintiff’s treating psychiatrist.

The present case involves no such privilege. As stated earlier, this is not a matter of waiver of privilege, but a question of whether there is anything in the RCMP documents over which immunity from disclosure could be claimed. Evidently there might have been, because portions of the documents were redacted in the exercise of the statutory screening mechanism. However, now that the documents have been unconditionally released to Ms. Bennett, the motion judge was quite justified to hold that “there is no public interest in the released RCMP documents to protect” (para. 26). [43] Ms.

Bennett’s claim that “[f]rom a public policy perspective a person should be able to access their personal information which is held by any government department including the RCMP without fear that once they access that information it could be subject to production to a stranger by virtue of litigation” is irreconcilable with the disclosure obligations of a party who launches a civil action where the documents are relevant to the subject-matter of the claim. [44] Ms.

Bennett also argues that the fact she has obtained the information from the RCMP will not result in any unfairness to State Farm because State Farm is in the same position now as it was before she obtained the information. She is wrong. She is in possession of information relevant to the matter, which is denied to State Farm. As Rosenberg J.A. observed in Wagg , “fairness will generally dictate that [relevant materials contained in a Crown brief in possession of one party] be produced to the other side” (para. 51).

I agree with that statement, just like I agree with the statement of the Divisional Court in Lang v. Crowe , [2000] O.J. No. 653 (QL) that it would be “inherently unfair for [a defendant], to have the Crown

Brief while it is denied to the other parties” (para. 11). [45] Ms. Bennett further submits that the refusal toorder production of the documents to State Farm will not undermine the integrity ofthe justice system because it will ensure that information collected by the police willremain confidential and will not be accessed.

This argument is readily answered byreference to both the Privacy Act and the Access to Information Act, each of whichprovide sufficient bases to protect the integrity of the justice system through thescreening mechanisms contained in those statutes. [46] Like the other grounds of appeal, this one isalso without merit. D. Litigation privilege [47] Ms. Bennett submits she is entitled to claimlitigation privilege with respect to documents her lawyer has gathered for purposes oflitigation.

She formulates her arguments as follows in her written submission: As a general rule the Courts have determined that litigation privilege may apply todocuments created for the dominant purpose of litigation but not to documents thatare merely ingathered for the purpose of litigation. However, it is submitted thatprivileged documents which are ingathered remain privileged unless privilege hasbeen waived. They remain privileged if the relationship is privileged, ie. betweenhusband and wife or if another privilege applies such as solicitor-client privilege orlitigation privilege .

It is submitted that here there is no proof that the RCMP waived privilege or thatthey had the authority to do so. Certainly, there is no statutory authority whichenables the RCMP to waive any privilege or public interest immunity. The Appellantwas ingathering the documents for the dominant purpose of this litigation and it issubmitted that as such privilege applied to her ingathered documents. [48] State Farm replies that Ms. Bennett’sarguments are fully answered by the decision in Edgar v. Auld (2000), (NB CA), 225 N.B.R. (2d) 71, [2000] N.B.J. No. 69 (C.A.) (QL). I agree.

[49] In Edgar v. Auld, privilege was claimed overtwo statements a Plaintiff had given to an insurer under the

Section B no-faultprovision of the automobile insurance policy and over hospital records that had beenobtained by a physician retained by the plaintiff’s solicitor. The claim for privilegeasserted the medical records were effectively obtained by the lawyer for the purposeof advising the client and, as such, were the work-product of the lawyer. On motionto the Court of Queen’s Bench to determine the validity of the privilege, the judgeruled that neither the statements nor the medical records were protected by litigationprivilege. On appeal to this Court, the motion judge’s decision was upheld.

In hisanalysis, Ryan J.A. considered two lines of cases: Two Canadian cases have attempted to provide some definitive direction for partiesand practitioners. In British Columbia, the Court of Appeal considered the issue oflitigation privilege in Hodgkinson v. Simms, (BC CA), [1989] 3W.W.R. 132. The majority judgment of McEachern, C.J.B.C. and Taggart J.A., heldthat where a lawyer exercises legal knowledge, skill, judgment and industry inassembling copied documents for the purpose of advising the client on or conductinganticipated or pending litigation, the lawyer is bound to claim privilege over thedocuments.

Craig J.A., in dissent, preferred the dominant purpose test. At p. 151 heheld that documents which originally were not privileged cannot become privilegedmerely because they have become part of the lawyer's brief in preparation for trial.He said: I fail to comprehend how original documents which are not privileged (because theyare not prepared with the dominant purpose of actual or anticipated litigation) canbecome privileged simply because counsel makes photostatic copies of the documentsand puts them in his "brief". This is contrary to the intent of the rules and to themodern approach to this problem.

If a document relates to a matter in question, itshould be produced for inspection. Mr. Edgar relies upon this case as well as some lower court decisions that cloak copiesof documents with privilege; see Ottawa-Carleton (Regional Municipality) v.Consumers' Gas Co. (1990), (ON SC), 45 C.P.C. (2d) 293, (Ont. Ct.(Gen. Div.)), (photocopies of published articles and copies of corporate publicrecords); Bohman v. Canada (Deputy Attorney General) (1995), 35 C.P.C. (3d) 25(Ont. Ct. (Gen. Div.)), Wilkins J.

The other Canadian case which has attempted to shed some light on the problem oflitigation privilege, also known as work product privilege or legal professionalprivilege, is the Ontario Court of Appeal case of General Accident Assurance v.Chrusz et al., September 14, (ON CA), 1999, 45 O.R. (3d) 321,Docket: C29463. There, Carthy J.A., concurred with by Rosenberg J.A., agrees withthe "tenor" of Craig J.A.'s dissenting decision in Hodgkinson. Carthy J.A., said that iforiginal documents enjoy no privilege, then copying is only in a technical sense, a

creation. The majority held that the "dominant purpose" test is the correct one. Whatwas the dominant purpose for which the documents were prepared? Did they comeinto being for submission to the lawyer for litigation? See, Waugh v. British RailwaysBoard, [1979] 2 All E.R. 1169 (H.L.), per Lord Wilberforce at pp. 1173-1174. Aspointed out in the majority judgment at para. 30 in General Accident, the dominantpurpose test has been adopted by appellate courts in Nova Scotia, British Columbia,Alberta and New Brunswick; see McCaig and McCaig v.

Trentowsky, (1983) (NB CA), 47 N.B.R. (2d) 71 (C.A.). [paras. 9-11] [50] In a conclusion with which I fully agree, RyanJ.A. says as follows: Mr. Auld and his co-defendants in the appeal before us, argue that the trial judge wascorrect in rejecting the reasons of the majority in Hodginkson as being contrary to themodern approach of disclosure. I am sympathetic to that view in relation to thisappeal. There was no legal skill or industry involved in ordering records of hospitalservices and medical treatments accorded Mr. Edgar. They were not created norbrought into being for the dominant purpose of the litigation.

I am persuaded to theview expressed in the decision of Ventouris v. Mountain, [1991] 1 W.L.R. 607 (C.A.)where Bingham L.J., held that our system of civil procedure is founded on the generalrule that the interests of justice are best served if parties to litigation are obliged todisclose and produce for the other party's inspection all documents in theirpossession, custody or power relating to the issues in the action. This is not anabsolute rule as is demonstrated by solicitor-client privilege and litigation privilege.At p. 621 para. C he held: ...

I can see no reason in principle why a pre-existing document obtained by a solicitorfor purposes of litigation should be privileged from production and inspection... . and at 621-622, Bingham L.J., criticized the argument that one should look to thepurpose for which the document was obtained in order to determine privilege. He saidthat, instead, one should look to the purpose for which it was brought into existence. In support of my view with respect to the records in question on this appeal I add thefollowing academic authorities.

In Sopinka, Lederman and Bryant, The Law ofEvidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) see paras. 14.75 to 14.82;and see R.J. Sharpe, "Claiming Privilege in the Discovery Process", Law inTransition: Evidence, L.S.U.C. Special Lectures (Toronto: De Boo, 1984) at 163:

Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate.

In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client). Rationale for Litigation Privilege Relating litigation privilege to the needs of the adversary process is necessary to arrive at an understanding of its content and effect. The effect of a rule of privilege is to shut out the truth, but the process which litigation privilege is aimed to protect - the adversary process - among other things, attempts to get at the truth.

There are, then, competing interests to be considered when a claim of litigation privilege is asserted; there is a need for a zone of privacy to facilitate adversarial preparation; there is also the need for disclosure to foster fair trial. See also Garry D. Watson and Frank Au, Solicitor-Client Privilege and Litigation Privilege in Civil Litigation (1998), 77 Can. Bar Review 315 where the authors discuss competing interests. For example, the assertion of privilege inevitably impedes the truth-finding process. The public interest is best served by confining the scope of privilege. See pages 341-346.

In my view, there is no merit to extending litigation privilege to cover the hospital and medical reports obtained by Mr. Edgar's solicitor. I leave until another day the ingenuity of counsel in persuading a trial judge that the legal knowledge, skill and industry of counsel are sufficient, on a case-by-case basis, to attract the mantle of litigation privilege in the case then under review. The documents here must be available for inspection and be made available for copying by the respondents, Mr. Auld and his co-defendants. The same applies to the two statements, copies of which were obtained by Mr.

Edgar's solicitor from the

Section B coverage insurer. [paras. 12-15] [51] In my view, the same reasoning applies in the present case. I have already determined that no valid claim of privilege or immunity has been shown to apply to the documents once the RCMP subjected them to the

statutory screening mechanism and unconditionally released them. The simple fact that Ms. Bennett’s solicitor is the one who gathered the documents, in the sense that he requested them from the RCMP, does not cloak them with privilege any more than it would medical records or

Section B statements a solicitor might obtain in pursuing a personal injury claim. I echo the words of Drapeau, C.J.N.B. in MacKenzie v. Davis , 2008 NBCA 85 , 338 N.B.R. (2d) 232 , where he noted Ryan J.A.’s statement that “the public interest is best served by confining the scope of litigation privilege,” and explained that this “is so because the privilege is an impediment to the truth finding process” and that “the search for the truth is at the heart of the quest for justice according to law” (para. 29). E. Use of documents in civil action [52] In this ground of appeal, Ms.

Bennett argues that the documents produced by the RCMP “should not be used for parasitic or collateral purposes.” She submits that “[n]either the police nor the Crown should be co-opted into the private proceedings between parties without any limitations,” on the basis that it is “not the role they were created to fulfill.” This ground of appeal is devoid of any merit.

It is answered by repeating the words of the Chief Justice in the above paragraph: “the search for the truth is at the heart of justice according to law.” No compelling argument has been made in support of an overriding public policy reason to shelter relevant documents from disclosure and production in a civil matter simply because these originated or were gathered in the course of a police investigation. If the documents are not otherwise cloaked by privilege or immunity, and if they are relevant and shed light on the truth, the interests of justice are served by their disclosure, not by their suppression.

The documents are in Ms. Bennett’s possession. She deposes that they relate to the matters in issue in the action. She has no valid claim of privilege over these, and neither has it been shown that anyone else has such a claim now that the documents have been screened through the mechanism provided in either the Privacy Act or the Access to Information Act and unconditionally released to Ms. Bennett. In these circumstances, there is no reason why the truth-finding process should be impeded. V.

Disposition [53] For these reasons, I would dismiss the appeal. [54] On the issue of costs, State Farm argues we should take into consideration that it took Ms. Bennett in excess of a year and a half to comply with the Notice Requiring Affidavit of Documents that was delivered to her in December 2009, and, even then, she only complied virtually on the eve of the

hearing of a motion to compel her to do so. Had she followed the time limit prescribed in Rule 31.03(2), Ms. Bennett’s Affidavit of Documents would have been provided to State Farm in January 2010. Following this, in accordance with Rule 31.07, Ms. Bennett would have been required to advise State Farm forthwith when she acquired possession or control of any further document relating to a matter in issue in the action. Had she complied with these obligations, State Farm would have known that Ms.

Bennett was already in possession of some or all of the documents it sought to obtain directly from the RCMP in the motion that led to Bennett No. 1 . State Farm argues the entire proceedings in Bennett No. 1 might have been averted. I agree. [55] In the circumstances, I would order Ms. Bennett to pay costs to State Farm in the amount of $5,000.00. ______________________________ J. C. MARC RICHARD, J.A. WE CONCUR: ______________________________ B. RICHARD BELL, J.A. ______________________________ BRADLEY V. GREEN, J.A.