Jordan v. Towns Marine Electronics Ltd.
T-1577-95
Hargrave P.
22/3/96
17 pp.
Motion seeking proper description, production of documents for which privilege claimed-Affidavit of documents describing documents for which privilege claimed as "various adjuster's reports"-Action for damages commenced in July, 1995-Plaintiffs alleging remote control unit on yacht supplied by defendant Towns malfunctioned causing damage to other vessels, personal injury-Adjuster preparing four reports-First three, dated June 27, July 18 and 25, addressed to insurer; fourth, dated September 11, addressed jointly to insurer, plaintiffs' counsel's firm-Amended defence filed in September 1995-Defendants' affidavit material sworn by investigating Adjuster-Federal Court R. 448(2) providing affidavit of documents shall contain sufficient description of all documents, statement of ground for each claim of privilege-Case law establishing party seeking to establish privilege must identify document well enough that court may effectively require production-Towns' description of documents complying neither with R. 448 nor with case law-(1) Effect of improperly identifying privileged documents-Puddister Trading Co. et al. v. Canada et al. (1995), 95 F.T.R. 92 (F.C.T.D.) holding as documents could not be identified because so poorly described, certificate making no assertion as to privilege and therefore documents had to be produced in entirety-Puddister Trading distinguished as by time of motion dates of reports, addressees known-(2) R. 448 complied with if each document listed by title, date, sender, addressee, or other description clearly identifying document, followed by statement of grounds for privilege in respect of each document-Alternatively adequate to begin with standard wording set out in Appendix of Forms to Federal Court Rules, description of documents, followed by code letters referring to eight clearly defined claims of privilege-(3) In considering whether document privileged, Court adopting dominant purpose rule described in Waugh v. British Railways Board, [1980] A.C. 521 (H.L.)-Onus on party claiming privilege to prove report prepared for dominant purpose of being provided to counsel and for use in respect of existing or reasonably contemplated litigation-Must establish dominant purpose for creating document to provide it to counsel either to obtain legal advice or to aid in conduct of litigation-If report commissioned by insurer, insurer's intention relevant-Dominant purpose test applied when document brought into being; when report commissioned only if report coming into existence very shortly thereafter; or when dominant purpose changes-Subsequent use or intentions of author irrelevant-Adjuster's affidavit establishing reasonable contemplation of litigation, probably before date of first report, but falling short of establishing dominant purpose to instruct counsel, at least as to first three reports-Consideration of reports themselves not establishing prepared for dominant purpose of being provided to counsel-First three reports ordered produced as not privileged-Fourth report privileged-As only relevant documents, portions thereof need be produced, amount of insurance coverage may be deleted-Towns ordered to provide amended affidavit of documents better describing remaining privileged material-Federal Court Rules, C.R.C., c. 663, R. 448 (as am. by SOR/90-846, s. 15).