Here’s a case that we missed when it was first released last September. It has just been reported in the Ontario Reports, so the lawyers, judges and masters who subscribe to our Updates will already have seen it. But for the benefit of other subscribers, we are including it now.
In Allan v. CHC (Canada) Casinos Ltd., the plaintiff tripped and injured herself at the defendant’s casino. The defendant retained an independent adjusting firm to investigate the plaintiff’s fall. This occurred before it had received any demand on behalf of the plaintiff and before any litigation had been commenced. As well, the defendant itself had not retained counsel.
Several letters were exchanged between the casino and the adjusting firm it had hired. When a lawsuit was later brought by the plaintiff, her lawyer sought production of the adjuster’s seven reports and of the one letter that had been sent to the adjusting firm by the casino. This motion for an order that the documents be produced was heard by Justice Robert N. Weekes. He ruled in favour of the casino and held that the documents were protected by litigation privilege.
Counsel for the plaintiff argued that the documents could not have been created for the “dominant purpose” of contemplated litigation, since there had been no indication of litigation or even of a claim, at the time that the correspondence was exchanged. However, the evidence on the motion showed that it was the casino’s standard practice to hire an adjuster to investigate incidents that might give rise to claims for compensation. The casino claimed that it did so in order to try to settle claims without litigation.
Justice Weekes said: “I am not persuaded that in circumstances such as these there is a difference between investigating a claim for the purpose of negotiating a settlement and investigating a claim for the defence of litigation. They are simply way points on the same path.”
He also attached significance to the fact that this was a third party claim, rather than, for example, a first party claim under an insurance policy. The casino had no contractual obligation to take any steps in relation to the incident. On this ground, he distinguished the well-known Court of Appeal decision in General Accident Assurance Co. v. Chrusz, which had involved a first party insurance claim.