In Oates v. Burton, the Plaintiff was injured in a motor vehicle collision, and consequently commenced an ICBC claim for damages for pain and suffering, as well as various other types of damages.
At one point in time, the Plaintiff, represented by counsel, received total temporary disability (TTD) benefits from ICBC. At another point in time, approximately seven months later, an extension of TTD benefits was requested by Plaintiff’s counsel. Less than two weeks later, surveillance evidence and an investigator’s report were created by ICBC. Shortly thereafter, the Plaintiff started to receive TTD benefits again.
With respect to the injury component of the lawsuit (the litigation), the Plaintiff sought production of the surveillance evidence, and the ensuing report of one of ICBC’S investigators. However, ICBC refused, taking the position that this documentation was protected by litigation privilege in the sense that it was created for the dominant purpose of the injury component (not the TTD benefits component) of the lawsuit.
The application was originally heard in front of a Master, who dismissed the Plaintiff’s application for production of the “Investigation Report and Video” (Item 4.3 of the Defendant’s List of Documents).
The Plaintiff appealed to the Supreme Court of British Columbia. The Court was left to decide the issue of whether or not the documentation sought by the Plaintiff was protected by litigation privilege, more specifically whether the report and surveillance evidence were generated for the dominant purpose of use in litigation. The Court noted the two step test that the Defendant must meet in order to establish privilege, namely :
(a) was litigation in reasonable prospect at the time the document in dispute was created? and,
(b) if so, was the dominant purpose for the document’s creation for use in litigation?
The Court did not agree with the position argued by ICBC’S lawyer that the documentation in question was protected by litigation privilege, ruling that the surveillance and the report of the investigator were likely created for the purpose of the injury component of the lawsuit (the litigation), as well as for the purpose of investigating the Plaintiff’s claim for income loss benefits.
 The plaintiff argues that at least one purpose that underlay the creation of Item 4.3 was the defendants’ desire to investigate or assess the plaintiff’s TTD benefits claim. Furthermore, and importantly, the plaintiff argues that it was necessary for the defendant to expressly address the relationship between the plaintiff’s TTD benefits claim and the creation of Item 4.3.
 I do not say that a deponent, who prepares an affidavit that is intended to support a claim for litigation privilege, must address and negate all other potential or notional purposes, however remote, for which that document might have been prepared. In this case, however, the prospect or likelihood that Item 4.3 was created to address, at least in significant measure, the plaintiff’s TTD benefits claim is not fanciful or speculative. The preparation of Item 4.3 is bracketed, on the one side, by the ten months from when the defendants learned that the plaintiff had retained counsel and by eight months, on the other side, by when the Notice of Civil Claim was ultimately filed.
 Conversely, Item 4.3 was prepared almost immediately on the heels of the defendants learning that the plaintiff was seeking an extension of her TTD benefits. In such circumstances, I do consider that there was a positive obligation on the part of the defendants’ deponent, the adjuster who oversaw the matter, to expressly and directly address the relationship of Item 4.3 and the plaintiff’s claim for TTD benefits, and the extent to which that claim gave rise to the creation of Item 4.3. That failure, in these circumstances, undermines the defendant’s affidavit evidence, calls into question the dominant purpose for the creation of Item 4.3, and is fatal to the defendants’ claim for litigation privilege over Item 4.3.
 This conclusion is reinforced by the affidavit evidence of the adjuster on this central issue – evidence that the Master in the Reasons accurately described as “not particularly persuasive”. Specifically, the adjuster in her affidavit said:
… By the summer of 2013, the medical information seemed to indicate substantial recovery but with some partial disability. To get a better understanding of her function, I hired a private investigator to review the Plaintiff’s level of activity. My intention on retaining the investigator was to use the results of the investigation to hopefully assist with the defence of the claim and to assist counsel to prepare for litigation not yet commenced but reasonably anticipated.