Oates v. Burton

Oates v. Burton

The Master committed an error of law by relying on Rule 12-5(10) and precedent without first determining whether Item 4.3 was privileged; the defendants failed to discharge the burden to show the dominant purpose of creating Item 4.3 was litigation because the creation closely followed a request to extend TTD benefits and the adjuster's affidavit did not adequately address alternative purposes; accordingly litigation privilege was not established for Item 4.3 and the video/report must be produced.

Citation
2016 BCSC 1428
Parties
Appellant/plaintiff: Desiree Nadine Oates; Respondent/defendant: Selena Burton; Respondent/defendant: Brennan David Ruault
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 August 2016
Procedural Posture
Motor Vehicle Personal Injury Action / Interlocutory Appeal From Master's Disclosure Order
Outcome
Appeal allowed in part; Master's dismissal of plaintiff's application regarding Item 4.3 set aside
Legal Topics
Litigation Privilege, Disclosure Obligations, Surveillance/video Evidence, Standard of Review on Appeal From Master
Source Language
English
Civil Procedure Evidence Insurance Law Privilege Law Litigation Privilege Disclosure Obligations Surveillance/video Evidence Standard of Review on Appeal From Master

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Parties

Desiree Nadine Oates

Appellant/plaintiff

Selena Burton

Respondent/defendant

Brennan David Ruault

Respondent/defendant

Procedural Posture

Motor Vehicle Personal Injury Action / Interlocutory Appeal From Master's Disclosure Order

Legal Issues

  1. 1 What is the applicable standard of review of a Master's interlocutory decision?
  2. 2 Whether Item 4.3 (Investigation Report and Video) is protected by litigation privilege

Ratio Decidendi

The Master committed an error of law by relying on Rule 12-5(10) and precedent without first determining whether Item 4.3 was privileged; the defendants failed to discharge the burden to show the dominant purpose of creating Item 4.3 was litigation because the creation closely followed a request to extend TTD benefits and the adjuster's affidavit did not adequately address alternative purposes; accordingly litigation privilege was not established for Item 4.3 and the video/report must be produced.

Court Disposition

Appeal allowed in part; Master's dismissal of plaintiff's application regarding Item 4.3 set aside

Orders

  • Item 4.3 (Investigation Report and Video) to be produced to the plaintiff within seven days of these reasons being released
  • Plaintiff awarded costs of the appeal and of the earlier application