In Fitzpatrick v. Wang [2014 ONSC 4251], the underinsured carrier moved to obtain a copy of a transcript from an Examination Under Oath of a tort Defendant.
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 unpaid fines.
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 provisions.
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 privilege.
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 varying grounds.
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 cases.
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.
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