The privilege ends when litigation ends: court
In a recent personal injury case, the Alberta Court of King's Bench rejected the plaintiff's claim of litigation privilege over documents and medical reports about a previous accident.
In Fedotkin v Obodzinski, 2023 ABKB 632, Iryna Fedotkina suffered injuries in a motor vehicle accident in 2019. She also sustained injuries in a prior accident in 2015. The defendants requested medical examinations, functional capacity evaluations and economic assessments about the 2015 accident. The defendants asserted a significant overlap between the nature of the injuries presented in the action for the 2019 accident and those arising from the 2015 accident.
The defendants primarily argued that the reports were relevant and material. Furthermore, they said that any litigation privilege that might have been attached to the reports in conjunction with the 2015 action was spent because the action was resolved.
The Alberta Court of King's Bench ruled that the requested information was relevant and material, finding overlap between the injuries claimed arising from the 2015 and 2019 accidents.
Furthermore, the court ruled that any litigation privilege that might have been attached to the reports sought was spent and no longer applicable. The court said that the party did not prepare the report for the dominant purpose of the present action, and any prior litigation privilege was spent upon resolution of the first accident claim.
The court cited Blank v Canada (Minister of Justice), 2006 SCC 39, where the Supreme Court of Canada said that "the purpose of the litigation privilege is to create a 'zone of privacy' about 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."
The plaintiff asserted that solicitor and client privilege should be applied, as such privilege does not end. The court, however, disagreed. The court said that solicitor and client privilege would apply to communications between counsel and the client and the solicitor's working materials and brief. The court emphasized that litigation privilege deals with communications with third parties and 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.
The plaintiff also claimed that the court's decision requiring production would change or significantly alter personal injury practice and affect many cases. The court disagreed and pointed out that relevant and non-privileged material is always available. The court explained that sorting out the relationship between injuries in a prior accident and a present accident is not novel. Accordingly, the court ordered the plaintiff to produce the requested documents.