Date: 19990610
Docket: A-70-99
CORAM: MARCEAU J.A.
BETWEEN:
COMMERCIAL UNION ASSURANCE COMPANY PLC.,
UNDERWRITERS AT LLOYD'S, CANADIAN GROUP
UNDERWRITERS INSURANCE COMPANY, CANADIAN
SURETY COMPANY, THE GENERAL ACCIDENT
ASSURANCE COMPANY OF CANADA,
MARITIME INSURANCE COMPANY LIMITED,
CONTINENTAL INSURANCE COMPANY, and
ROYAL INSURANCE COMPANY OF CANADA,
Plaintiffs/
Respondents,
- and -
M.T. FISHING CO. LTD. and
RICHARD WOOD,
Defendants/
Appellants.
Heard at Vancouver, British Columbia, Wednesday the 9th day of June, 1999
Judgment delivered at
Vancouver, British Columbia, Thursday the 10th day of June, 1999
REASONS FOR JUDGMENT BY: SEXTON J.A.
Date: 19990610
Docket: A-70-99
CORAM: MARCEAU J.A.
BETWEEN:
COMMERCIAL UNION ASSURANCE COMPANY PLC.,
UNDERWRITERS AT LLOYD'S, CANADIAN GROUP
UNDERWRITERS INSURANCE COMPANY, CANADIAN
SURETY COMPANY, THE GENERAL ACCIDENT
ASSURANCE COMPANY OF CANADA,
MARITIME INSURANCE COMPANY LIMITED,
CONTINENTAL INSURANCE COMPANY, and
ROYAL INSURANCE COMPANY OF CANADA,
Plaintiffs/
Respondents,
- and -
M.T. FISHING CO. LTD. and
RICHARD WOOD,
Defendants/
Appellants.
REASONS FOR JUDGMENT
SEXTON J.A.
[1] In this appeal, the appellants ask this Court to overturn the decision of the learned motion judge in which he held that all documents and information obtained after a certain date were exempt from disclosure by virtue of the litigation privilege.
Facts
[2] On April 25, 1995, a fire destroyed a wood yacht named the "Radiant". The owner, who is the appellant in this action, made a claim against the Respondent insurance company and the respondent partially paid the appellant on the claim.
[3] On May 24, 1995, the Respondent received information that led them to believe that the fire had been intentionally set. As a result, the Respondent felt a new investigation was warranted and on May, 25 1995, began a new investigation in order to determine whether or not the fire had been deliberately set.
[4] The dispute presently before the court arose during examination for discovery. The respondent, asserting the litigation privilege, refused to disclose certain documents and refused to provide answers to certain discovery questions. A motion was brought to compel the plaintiff to give answers to these questions and produce the documents.
[5] The motion judge posed two questions for the Court to answer:
| a) was litigation in reasonable prospect at the time of each of these communications, whether oral or written, occurred; and |
| b) was litigation the dominant purpose for the creation of each such communication? |
[6] The motion judge then found that all information obtained in the course of the investigation which started May 25, and all other documents created during that period were covered by the litigation privilege. He found the dominant purpose of the investigation was to commence an action to recover the amounts paid to the defendant.
[7] The motion judge did not answer the questions which he had posed and which would normally be answered on a motion such as this. Counsel have advised on this appeal that this happened because counsel asked the motion judge to answer only the general questions which the motions judge in fact answered.
[8] Before the motion judge, it was agreed between counsel that the Court would be asked to answer the simple question as to whether the dominant purpose of the investigation commenced on May 25, 1995 by the plaintiff was for litigation to recover the money which it had paid. Counsel agreed that once they obtained this answer they could agree on which questions would be answered and which documents would be produced. Further to the request by both counsel, the motion judge answered this question and found that the dominant purpose of the plaintiff's investigation was for the purpose of litigation, and therefore all subsequent communication was privileged. We can find no error in the finding of the motion judge and in light of the agreement of counsel, expressed to us again on the hearing of the appeal, we therefore cannot interfere with the result.
[9] Appeal will be dismissed with costs.
(Sgd.) "J. Edgar Sexton"
J.A.
Vancouver, British Columbia
10 June 1999
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-70-99
STYLE OF CAUSE: Commercial Union Assurance Company PLC. et al.
v.
M.T. Fishing Co. Ltd. et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 9, 1999
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
CONCURRED IN BY: MARCEAU J.A.
NOEL J.A.
APPEARANCES:
| R. M. Lonergan for the Plaintiffs/Respondents |
D. F. McEwen for the Defendants/Appellants
SOLICITORS OF RECORD:
| Russell and DuMoulin for the Plaintiffs/Respondents |
McEwen Schmitt for the Defendants/Appellants
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