In R D v Wawanesa Insurance, 2019 CanLII 22203 (ON LAT), surveillance and the applicability of litigation privilege regarding the obligation to produce same, took centre stage.
The Claimant was involved in a motor vehicle accident and claimed that she sustained a catastrophic impairment. The Insurer denied non-earner benefits. A case conference was conducted during which the Claimant requested that the Insurer advise her of the existence of any surveillance and provide her with the complete, un-redacted tapes and reports of any such surveillance. The Insurer agreed to provide this evidence only if it intended to rely on it at the hearing but otherwise claimed that it was covered by litigation privilege.
Prior, however, the Claimant also made an application to FSCO for benefits arising out of the same accident, and thus, it was possible that the Insurer had surveillance evidence that was created in relation to the earlier application, which may or may not be relevant to the current application.
Issues that were to be decided in this application included if the Insurer was required to advise the Claimant of the existence of surveillance, if any, and if yes, if the Insurer was required to provide the Claimant with the compete un-redacted surveillance tapes and records, even if it did not intend to rely on that evidence at the hearing.
Adjudicator Fricot found that surveillance that is related to the issues in dispute, if any, is relevant to the application. Adjudicator Fricot went on to hold that just because surveillance evidence is not helpful to the Insurer’s case does not mean it is not relevant to the issues in dispute. Relevance is the starting point in determining whether the surveillance evidence sought should be produced. However, the Tribunal does not have the authority to order production of surveillance evidence that is protected by litigation privilege.
Litigation privilege must pass the 2-part test as outlined in Mamaca (Litigation Guardian of) v Cosesco Insurance Co,  OJ No 4899 (Ont SCJ), in that the party claiming privilege must establish both, that:
- There was a reasonable prospect of litigation at the time the surveillance evidence was created, AND
- The dominant purpose for the creation of the surveillance was to assist in the contemplated litigation.
Following Blank v Canada (Minister of Justice), 2006 SCC 39 (CanLII), Adjudicator Fricot found that litigation privilege attaches after the date of the application. Once the litigation has ended the privilege it gave rise to has lost its specific and concrete purpose and therefore its justification, however, this does not mean it has terminated. Litigation privilege comes to an end, absent closely related proceedings, upon termination of the litigation that gave rise to that privilege.
The Insurer argued that this application to FSCO and the previous application stem from the same juridical source, namely a disagreement between the Claimant and Insurer as to the Claimant’s entitlement of benefits and thus was reasonably foreseeable.
Adjudicator Fricot held that in each case, the nature of the claims advanced in the initial application must be compared to the nature of the claims advanced in any subsequent application to determine whether both relate to the same underlying facts and issues. Further, the related proceedings raised sufficiently common issues to satisfy the test for continuing litigation privilege as set out in Blank. In the case at hand and the previous application to FSCO, the issue was the Claimant’s entitlement to the non-earner benefits and whether the Claimant suffered a catastrophic impairment.
In some cases, it will be appropriate to infer from the evidence in the case, that litigation privilege applies to documents prepared after litigation was reasonably contemplated. In this case, litigation privilege arose after the second Application.
Litigation privilege arose in this case when the Claimant filed an application for arbitration at FSCO claiming Accident Benefits. In this case there were two applications for accident benefits arising from the same motor vehicle accident; one to FSCO (the initial dispute), and one to the LAT (the current dispute). As such, Adjudicator Fricot made clear that the Insurer must advise the Claimant of the existence of all surveillance, if any, prior to the filing of the initial dispute application to FSCO and provide the Claimant with the date, time, place and reason for the surveillance as well as copies of any surveillance conducted before the Claimant filed the application that related to the issues in dispute. The Insurer was entitled to redact solicitor-client privileged communications, if any.
Conversely, the Insurer is not required to advise the Claimant of the existence of any surveillance or provide copies of any surveillance evidence that relates to surveillance after litigation privilege arose, unless it intends to rely on it at the hearing. This surveillance is subject to the Rules.