Rasmussen v. ICBC Date:, 2010 BCPC 59

Citation: Rasmussen v. ICBC Date: 20100504 2010 BCPC 0059 File No: C06669 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: EVA RASMUSSEN CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE MACKAY Counsel for the Claimant: A.T. Briscoe Counsel for the Defendant: A.P.A. Zacharias Place of Hearing: Chilliwack , B.C.

Date of Hearing: April 22, 2010 Date of Judgment: May 4, 2010 INTRODUCTION [ 1 ] In this action, the claimant Eva Rasmussen is suing the defendant Insurance Corporation of British Columbia (“ICBC”) for breach of a contract of insurance. She says that she suffered damages as a result of the destruction of a vehicle owned by her and ensured by the defendant. The matter is not yet set for trial. [ 2 ] Both parties in this action are represented by counsel. A Notice of Claim (dated December 10, 2008) and Reply (dated February 9, 2009) have been filed.

These, as might be expected, are drafted with some precision and resemble the pleadings usually found in Supreme Court actions. It appears that the parties have employed the same precision and formality in the process of pre-trial discovery. In particular, formal Lists of Documents have been prepared and exchanged between the parties. [ 3 ] The claimant is dissatisfied with the List of Documents delivered by the defendant. Essentially, the claimant's position is that the “privileged documents” listed in

Part III of the defendant’s List should be disclosed. The claimant says that Items 3 to 12 in

Part III are not entitled to the cloak of solicitor client privilege despite the claims being made by the defendant. The various numbered grounds claimed by the defendant to justify privilege are in question. It should be noted that Items 9 and 10 were not even included in the list and delivered to the claimant. This appears to be an oversight. [ 4 ] The application framed by the claimant asks, firstly, for an order that the defendant produce the impugned items for inspection and, secondly, that the claimant receives copies of the same. [ 5 ] Mr. Briscoe dealt with each item individually.

He made the following points: • Item 3: “Adjuster’s File” - it is impossible to determine what documents in the adjuster's file could properly be subject to solicitor client privilege as the description is too general and vague; • Item 4: “C75 Claim File Report for Eva Rasmussen”- this document was filed by Ms. Rasmussen to commence her claim. As no litigation was contemplated at that time it is impossible to conclude that it is covered by privilege.

Moreover, this is clearly not “solicitor - client communications”, “solicitor - third-party communications” or “solicitor's work product” as claimed by the defendant;

• Item 5: “CWMS Notes for Eva Rasmussen:” - the time period attached to these notes is from May 6, 2008 to July 21, 2008. This is well before the decision by the defendant to deny the claim. That decision was communicated to the claimant by letter dated August 13, 2008. Accordingly, these notes cannot possibly be in contemplation of litigation and would not be covered by privilege; • Item 6: “CWMS Notes for Eva Rasmussen” – It appears that there is some overlap with Item 5 as the description is identical. The date range is listed from May 6, 2008 to January 7, 2009.

While there may be some notes that might have been created after litigation commenced, the generic description does not permit the claimant from determining this. It is also noteworthy that the solicitors for ICBC appear to have been retained on January 5, 2009.

Accordingly, the basis for a claim of privilege is doubtful; • Item 7: “Inspection Report dated June 16, 2008” – this, too, is before the decision to deny the claim and well before the involvement of any solicitors on behalf of ICBC; • Item 8: “Investigation Report dated May 12, 2008” – again, this is a well before litigation was contemplated; • Item 9: ”Investigation Report dated May 20, 2008, Interview with Eva Rasmussen” - this suffers from the same defect as Item 8.

As a transcript of this interview appears as an exhibit in an Affidavit filed by the defendant in this application, whatever privileged there might have been appears to have been waived by ICBC; • Item 10: “Investigation Report dated February 19, 2008, Interview with Roger Evans” This date is before the loss and appears to be a drafting error. Indeed, the year is properly listed as 2009 in the adjacent column. The claim for privilege here, however, is also unclear on its face as it is not apparent who Roger Evans is.

Moreover, the drafting error underscores the lack of attention brought to bear on preparing the List. As well, the generic description does not identify who interviewed Mr. Evans and, therefore, it is impossible to conclude that any valid privilege would attach; • Item 11: “Investigation Report dated March 4, 2008, Interview with Gregory Ponzini” - the problems here are identical to those referred to for Item 10; and • Item 12: “Customer Directory – Person Profile – Various” - the date of this Item is listed as July 7, 2008. Again, this precedes the involvement of solicitors for ICBC in this matter. [ 6 ] Mr.

Zacharias, on behalf of the defendant acknowledged the concerns outlined by Mr. Briscoe. He concedes that Item 9 is no longer an issue. He says that the key to determining privilege is to first stab at a date when it can be said that litigation was contemplated. Here he alludes to the accepted two-part test, namely: 1. Was litigation contemplated at the time the document was created; and 2. What was the dominant purpose for which the document was created? [ 7 ] This proposition is not controversial: see Hamalainen (Committee of) v. Sippola , 1991 CanLII 440 (BC CA) , [1991] B.C.J.

No. 3614 (C.A.) (“ Hamalainen ”) . [ 8 ] Mr. Zacharias relies on the Affidavit of Rick Ross. Mr. Ross is an investigator with the Special Investigations Unit of ICBC. He deposed in his Affidavit that he had formed the opinion that the claim would “likely involve litigation”. He says he formed this opinion after reviewing the claim on May 8, 2008. He says that “all notes prepared and Documents created or obtained” from that date onward were, therefore, made “for the dominant purpose of litigation”. [ 9 ] There is also an Affidavit from Ann Bukowsky, an adjuster, who assumed conduct of the file on May 15, 2009.

As this is well after litigation was commenced, nothing flows from this. THE LAW AND APPLICATION TO THE FACTS [ 10 ] In Small Claims actions, the parties are not bound to make reciprocal discovery of documents to the extent that practice is observed and mandated in Supreme Court. Rule 7 of the Small Claims Rules , B.C. Reg. 261/93 deals with disclosure of documents in the context of settlement conferences. The various subrules in Rule 7(14) give the presiding judge power to order the production of information and documents.

It has been held that the Rules give a judge broad powers which include the jurisdiction to make disclosure orders: see Lovrich v. ICBC (28 July, 1993), Vancouver C93-01081 (B.C.P.C.). [ 11 ] Although this application was brought before a settlement conference was scheduled, neither counsel has objected to the matter being adjudicated at this stage. Given this, I am prepared to make a ruling.

As well, I am of the view that deciding this issue is necessary in this case to promote a “just, speedy inexpensive and simple” resolution of this dispute in accordance with s. 2 of the Small Claims Act , R.S.B.C. 1996, C.430 . [ 12 ] As for the first branch of the test referred to in para. 6, the Court of Appeal found that the facts in Hamalainen supported the first branch of the test. There ICBC filed Affidavits of an adjuster and an investigator. These said much the same as Mr.

Ross says in this case. [ 13 ] In Hamalainen , the Court of Appeal upheld the decision of the Master who did not find the opinion of the two deponents to be conclusive on the first branch of the test. The delineation between the “adjusting stage” and the “litigation stage” was held to be the point at which the insurer denied liability. This was done, as here, by a letter delivered to the insured denying liability. [ 14 ] Here, I do not find the subjective opinion of Mr. Ross to be conclusive. Indeed it would appear that his opinion was not shared by others at ICBC since the actual denial of Ms.

Rasmussen’s claim did not take place until August 13, 2008. As was the case in Hamalainen , this is the clear point in this case where “litigation privilege” might apply. All documents created before this date do not attract this privilege and must be disclosed by the defendant in this case.

[ 15 ] As for the documents created after August 13, 2008, it is my understanding that the claimant accepts the evidence of Ms. Bukowsky that these are not necessarily compellable. The claimant does seek, at least, a better description of these documents, however, given the problems and ambiguities outlined above. [ 16 ] In McComb v. Jones , [2008] B.C.J. No. 205 (B.C.S.C.) , Master Caldwell followed the test referred to in Hamalainen . He found insufficient evidence that the documents in question were for the dominant purpose of litigation. Accordingly, disclosure was ordered.

He ruled that a simple assertion of “dominant purpose” was not enough – there must be evidence before the court to objectively demonstrate this. The documents in question were similar to those which ICBC claims are privileged in this case. [ 17 ] In Snow v. Friesen , [2008] B.C.J. No. 2362 (B.C.S.C.) (“ Snow ”) a clear distinction was made between documents produced before and after the date that the Writ of Summons was filed. Those documents, created after that date, were held to have probably been created for the dominant purpose of litigation.

In the case at bar, the claimant accepts this as appropriate and I will adopt it in this case. This leaves the period between August 13 and December 10, 2008 as a “grey area”. This is a time when I think it can be fairly said that litigation was in “reasonable prospect”. The questions then become what were the documents produced in this period and what, on the evidence before me, is the dominant purpose for their production? [ 18 ] The difficulty here, as noted, is that the defendant has chosen to apply general “boilerplate” descriptions to the documents it claims privilege over.

It is trite to point out that ICBC is a sophisticated and experienced litigant. Since that is so, the defendant must be taken to have been well aware of the onus of demonstrating that a document attracts privilege. That burden has not been met with respect to the August to December period. While it is possible, to some extent, to determine when the documents were created, it is not possible on the evidence before me to deduce that the dominant purpose was for litigation. Accordingly, all documents should be produced which were created up to the date the Notice of Claim was filed.

This is consistent with the result in Snow . [ 19 ] As I understood it, the claim for privilege on documents created by and for the defendant’s solicitors is generally accepted by the claimant. Thus, Items 1, 2, 10 and 11 are conceded to be properly identified as subject to solicitor’s brief privilege. Should the person’s referred to in Items 10 and 11 become witnesses, however, it may be appropriate to order that “will say” summaries be prepared.

I will defer making such an order now – the matter can better be addressed at the settlement conference stage. [ 20 ] That portion of Item 3 (the generically labeled “Adjuster’s File”) may consist of mixed materials. Certainly, given the lack of evidence referred to above, all documents in the Adjuster’s File, up to the date the Notice of Claim was filed, are compellable. The documents created after that date should be properly listed to enable the clamant to determine whether or not she accepts the privilege claim.

At the very least, this should include an itemization with dates and a brief description of each document together with the specific grounds for the privilege claim. [ 21 ] To the extent that solicitor’s brief privilege is claimed over documents created prior to the appointment of solicitors, I am in agreement with Mr. Briscoe’s submission that this claim cannot logically or juridically be sustained. Thus, for example, the “Customer Directory” created in July, 2008 cannot be considered solicitor/client or solicitor/third-party communications.

CONCLUSION [ 22 ] In light of the reasons given above, I will make the following Order:

(1) That the defendant produce to the claimant the contents of Item 3 (“Adjuster’s File”) which were prepared prior to December 10, 2008;

(2) That the defendant provide the claimant further and better particulars with respect to the remaining contents in Item 3. This should be a numbered list with dates, brief descriptions and specific grounds for any privilege claim;

(3) Any portion of Item 4 which has not been yet produced to the claimant shall be produced within 2 weeks of the date of this Order;

(4) All the contents of Item 5 (“CWMS Notes”) shall be produced within 3 weeks of this order;

(5) All the contents of Item 6 created prior to December 10, 2008 (“CWMS Notes”) shall be produced within 3 weeks of this Order. As well, the defendant shall provide the claimant further and better particulars with respect to the remaining contents in Item 6. This should be a numbered list with dates, brief descriptions and specific grounds for any privilege claim;

(6) All the contents of Item 7 (“Inspection Report dated June 16, 2008”) shall be produced within 3 weeks of this Order;

(7) All the contents of Item 8 (“Investigation Report dated May 12, 2008”) shall be produced within 3 weeks of this Order;

(8) Any portion of Item 9 which has not been yet produced to the claimant shall be produced within 3 weeks of the date of this Order;

(9) That the defendant provide the claimant further and better particulars with respect to the contents in Items 10 and 11. This should contain sufficient detail of the content of these “Interviews“ to allow the claimant to consider the specific grounds of privilege claimed; and

(10) All the contents of Item 12 (“CWMS Notes”) shall be produced within 3 weeks of this Order. [ 23 ] Should anything further need to be addressed in connection with this Application, I will leave it to counsel to have the matter brought before me. __________________________

R.C. MacKay Provincial Court Judge”