The Court of Queen's Bench of Alberta has recently reconsidered the issue of litigation privilege in the context of the Minor Injury Regulation (the "MIR"). In the 2013 decision of Rodriguez v. Woloszyn ("Rodriguez"), Justice Wakeling overturned the decision of Master Schlosser, which we reported on last year. Master Schlosser held that the Plaintiff had not waived litigation privilege by voluntarily producing his medical legal reports to a certified examiner (the "Examiner") appointed under the MIR to conduct a certified medical examination ("CME"). Under the MIR, a CME can be requested by either party to decide whether a plaintiff has suffered a "minor injury". Section 12 of the MIR provides that the opinion of the Examiner is prima facie evidence that a plaintiff's injury is or is not a minor injury.
In Rodriguez, Plaintiff's counsel provided two expert reports to the Examiner. These reports had not been produced to Defence counsel. Plaintiff's counsel argued that:
- the expert reports were privileged, and
- this privilege had not been waived.
Master Schlosser agreed with Plaintiff's counsel on the basis that the Defendant could still request that the Plaintiff be examined for an independent medical examination under Rule 5.41 of the Alberta Rules of Court. The effect of such an examination pursuant to Rule 5.44(3) would end litigation privilege over the Plaintiff's medical reports, as the Defendant would be entitled to receive copies of these.
Justice Wakeling disagreed with Master Schlosser's reasoning. In his analysis, he noted that the Examiner, in publishing an opinion as to whether a person has a minor injury, makes an important decision which affects both Plaintiff and Defendant. The duty of fairness compels the mutual disclosure of any information which the parties delivered to the Examiner. The obligation to disclose also rests with the Examiner if a party fails to deliver documents to the other side.
In Rodriguez, the Plaintiff, acting through his counsel, voluntarily waived the protection of litigation privilege. Plaintiff's counsel understood that the documents were protected from review by third parties because of the litigation privilege principle. Counsel also appreciated that he delivered the privileged documents to a third party. This was a classic example of a voluntary waiver of privilege. Justice Wakeling held that a plaintiff who is compelled to disclose medical reports to a defendant that were provided to an Examiner has not been unfairly treated. Any other result would provide a plaintiff with an unfair advantage in this stage of the litigation process set by the MIR. Further, the settlement of legal disputes at the earliest possible time is in the public interest. Settlements are most likely to occur when there is disclosure of relevant information that allows parties to make an informed decision as to what a Court will likely decide in the litigation.
Justice Wakeling's decision in Rodriguez is helpful for defence counsel. Plaintiffs' counsel are no longer entitled to withhold documents during the CME process, allowing for greater transparency and potential resolution of claims. Rodriguez also reminds us of the evolving and developing case law surrounding the application of the MIR.
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