On November 20, 2009, Chang Wang was involved in a motor vehicle
accident while driving his father, Ming Wang's vehicle. At the
time of the collision, Chang Wang's licence was suspended for
The Plaintiff, Mr. Fitzpatrick issued a claim for damages
against Chang and Ming Wang. The insurer of the Wang vehicle, Peel
Mutual Insurance Company, defended Ming Wang but refused to defend
Chang Wang on the basis that he had no consent. Initially, it was
alleged that the vehicle had been stolen. Later, it was simply
alleged that the vehicle was taken without consent.
The Plaintiff also claimed against his own insurer, Echelon
pursuant to the uninsured/underinsured motorist
During the course of litigation, Echelon brought a motion for
the production of the transcript from Peel's Examination Under
Oath of Ming Chang. The relief sought was opposed on the basis of
In considering the issue, the Court noted that despite numerous
requests for production of the transcript, it wasn't until two
years after the initial request that Peel's Counsel suggested
that the transcript was protected by litigation privilege. During
this period, Peel's Counsel objected to the production on other
The Court recognized that for privilege to attach to the
transcript, it had to be created for the dominant purpose of actual
or reasonably anticipated litigation. As a result, the evidence
tendered in support of the privilege claim was critical.
Master Haberman concluded that Peel, who had the onus of laying
the evidentiary foundation on which to advance their claim for
litigation privilege, had failed to satisfy this onus. The Court
noted that the absence of any explanation for two years' worth
of different justifications to support the refusal to tender the
document was of concern. The Court opined that the dominant purpose
of the Examination was adjusting the claim. At the time the
Examination was conducted, the reasonable anticipation of
litigation stage had not yet been crystalized.
This case demonstrates the challenges Insurers face when
attempting to avoid disclosing transcripts from an Examination
Under Oath in a first party claim when sought in Third Party tort
This decision is very fact specific and does not stand for the
absolute proposition that transcripts must always be produced in
similar circumstances. The Insurer's delay in asserting
litigation privilege was significant to the Court.
There may still be scenarios where an Insurer can successfully
resist production of transcripts. There are many reasons why an
Examination Under Oath is conducted. In cases where the Examination
is held during the investigative process before coverage issues
have crystalized, it may be more difficult to argue that the
transcript is for the dominant purpose of litigation.
In other instances, the Examination Under Oath occurs after the
Insurer has determined coverage, after a first party claim has been
issued or under a reservation of rights. In these circumstances,
the Insurer may be successful in establishing litigation privilege.
Insurers and Counsel should carefully examine the circumstances of
the Examination Under Oath to determine whether the transcript
ought to be produced. It will be a case by case determination
Further, to lay a foundation for a later claim of privilege of
the Examination under Oath transcript, Insurers and Counsel should
tailor their protocols when scheduling an Examination Under Oath
and any comments made on the Examination record with respect to the
purpose of Examination with that objection in mind.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
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