Rule 7-1 of the British Columbia Supreme Court Rules deals with document production. A dispute between counsel, or between counsel and an ICBC adjuster, often arises with respect to whether or not a witness statement should be produced. Generally speaking, litigation privilege does not attach to witness statements gathered by ICBC during the investigative stages and, as such, such statements are frequently ordered to be produced by the Court.

 

In Polianskaia v. Melanson, the Plaintiff’s mother made a written statement to ICBC, however such statement was not listed in the Defendant’s list of documents. The Plaintiff made an application to force ICBC’S lawyer to produce the statement, which the Court granted.

 

[33] There is no evidence before the court which suggests that ICBC might have a statement from the plaintiff herself. The evidence addresses only the possible existence of statements made to ICBC by each of the plaintiff’s parents.

 

[34] The plaintiff’s mother deposes to having signed a written statement prepared by a representative of ICBC. Through defence counsel’s correspondence, the existence of such a statement is denied. The correspondence is not sworn evidence of either indirect or direct knowledge of the existence of this statement. In those circumstances, the court has no reliable evidence to weigh against the contrary evidence of the plaintiff’s mother. In the absence of such evidence, the order will go that ICBC is to produce to the plaintiff any written statement in its possession or control signed by Elvira Polianskaia.

In Polovnikoff v. Banks, the Plaintiff had several claims consolidated. The majority of the claims, save for one, were settled. Certain witness statements were produced to the Plaintiff by the Defendant as part of the settlement process. The Plaintiff then attempted to have such witness statements excluded from the trial of the final matter, however the Court ordered the Plaintiff to provide the witness statements to the Defendant. The Court dealt with the area of law known as common interest privilege with respect to the production of witness statements.

 

[7]               The parties also disputed the disclosure of certain statements that were gathered by ICBC investigators prior to the trial. These statements were disclosed to the plaintiff by the defendants as a condition of the settlement agreement in regard to the other actions that were settled prior to trial. The plaintiff argued that these documents were privileged because they were disclosed by the defendants to the plaintiff at a time when they had a common interest in the litigation before the court. I ruled that the documents were not privileged and must be disclosed to the defendants in this action. These are the reasons for my ruling.

 

[8]               The common interest privilege is an exception to the general rule that disclosure of privileged information to outsiders waives the privilege. In Buttes Gas v. Occidental Petroleum, [1980] 3 All E.R. 475 (C.A.) Denning, L.J. explained this exception:

 

There is a privilege which may be called a ‘common interest’ privilege. That is a privilege in aid of anticipated litigation in which several persons have a common interest. It often happens in litigation that a plaintiff or defendant has other persons standing alongside him who have the selfsame interest as he and who have consulted lawyers on the selfsame points as he but who have not been made parties…

 

(at pp. 483 and 484 )

 

[9]               Denning L.J.’s comments were in adopted in Vancouver Hockey Club Ltd. v. National Hockey League,1987 CanLII 2430 (BC SC), (1987) 44 D.L.R. (4th) 139 [VHC]. In VHC the Court found common interest privilege applied to documents exchanged between two separate parties as both parties had an interest in setting aside the National Hockey League’s decisions and orders: see VHC at para. 7.

 

[10]           The common interest privilege was also explained by the learned authors in Sopinka et al, The Law of Evidence in Canada, (Toronto: Butterworths, 1992) at 669:

 

Sometimes it is necessary for certain outsiders, such as co-accused or their counsel to assist in the preparation of a client’s defence. Indeed, an exchange of confidential information between individuals who have a common interest in anticipated litigation is within the context of this privilege.

 

[11]           This statement was adopted and applied in Hopkins (Committee of) v. Wellington, 1999 CanLII 5583 (BC SC), (1999) 68 B.C.L.R. (3d) 152 at para. 2. In Hopkins there were two separate actions; each of the two parties who shared privileged information was a plaintiff in one action and a defendant in another. The parties were also represented by separate counsel in each action. Burnyeat J. provides the following explanation of common interest privilege at para. 4:

 

Co-defendants or co-plaintiffs may have common interests for which it would be beneficial to share information although this cooperation between defendants need not be for all purposes. It is clear that any information shared for common interests will continue to be protected by privilege. It is also clear that any information not shared will continue to be protected by privilege and need not be produced to the co-defendant or co-plaintiff.

 

[12]           Burnyeat J. went on to find that there was a common interest between each party as a plaintiff and as a defendant and therefore privilege was not waived:

 

[4]…As plaintiff, Mr. Wellington submits that Mr. Hopkins was liable for the accident and as defendant he submits that he is not liable for the accident. Similarly, Mr. Hopkins as plaintiff submits that Mr. Wellington was liable for the accident and as defendant he submits that he is not liable for the accident. In the unique circumstances of these two actions, the two “interests” of Mr. Wellington and the two “interests” of Mr. Hopkins are common so that their respective counsel can share information and documents without that sharing resulting in a waiver of privilege.

 

[13]           In the present case there is no common interest between the parties as there was in VHC and Hopkins.  Although the documents were shared for the common purpose of settlement, they were not shared as a result of a common interest in anticipated litigation.  The defendants in the other actions made the disclosure to the plaintiff in anticipation of an end to litigation.

 

[14]           Moreover, the defendants in the other actions have no continuing action or claim involving Mr. and Mrs. Banks. Thus their interests in the remaining action cannot be aligned with the plaintiff’s interest in the anticipated litigation. 

 

[15]           In summary, I find that the documents were not shared in anticipation of litigation or as a result of a common interest in anticipated litigation. Consequently, the general rule must prevail and the privilege is waived.  The witness statements are relevant to a material issue in these proceedings and must be produced to the defendants