Risk management report was not prepared for dominant purpose of litigation

Discovery

Risk management report was not prepared for dominant purpose of litigation

Plaintiff retained defendant W Inc. as engineering consultant. W Inc. approved specifications for repairs to bridge and defendant L Inc. obtained contract to rebuild bridge. Bridge showed evidence of deterioration and W Inc. advised plaintiff that L Inc.’s poor workmanship was cause. L Inc. redid deteriorated areas of bridge but repairs failed and concrete again deteriorated. W Inc. continued to maintain that poor workmanship on part of L Inc. caused deterioration, while L Inc. claimed deficiencies were caused by admixture specified by W Inc.. W Inc. continued to act for plaintiff and continued to reassure it that it had not made any error. Plaintiff commenced action against L Inc. and later drafted amended statement of claim to add W Inc. as defendant. Plaintiff brought motion for relief, including seeking copy of risk management report prepared by W Inc.’s employee. Motion granted. Risk management report was not prepared for dominant purpose of litigation and was not protected by litigation privilege. Report did not originate in confidence but was to be shared with senior management. Relationship between employee and senior management of professional firm was one where confidentiality was important when risk of litigation was being discussed, but it was not situation in which privilege could be asserted. Report was sent to W Inc.’s insurers but relationship between insured and insurer was not deemed privileged. Benefits of correct disposition of litigation to be obtained by production of information requested outweighed any possible injury to relationship. Information requested was not protected by common-law privilege and W Inc. was ordered to produce report.
Prescott-Russell (United Counties) v. David S. Laflamme Construction Inc. (Feb. 12, 2016, Ont. S.C.J., Robert J. Smith J., 10-48888) 263 A.C.W.S. (3d) 621.