Non-party witness can receive document subject to litigation privilege

On August 23rd, the Supreme Court of British Columbia held that a non-party witness should have access to a statement she gave to an insurance adjuster even though it was subject to the adjuster’s litigation privilege. It said:

Although the respondent is entitled to have its litigation privilege protected, fairness requires that the petitioner be provided with a copy of her statement. The petitioner is a stranger to the litigation about the accident; she is not a party and she has no interest in it. I note that, if the petitioner was a party, there would be no question that she would be entitled to her statements, as I will discuss below. I have some difficulty imposing on a private citizen the rules of a “sporting event” that are more onerous than those placed on parties. The risk of applying those rules to a non-litigant without legal representation is that a person can, through accident or ignorance, make a mistake. The mistake can be only embarrassing to the non-litigant and/or it can distort the evidence before the court. Neither is desirable.

Within the bounds of an adversarial system, private citizens should be encouraged to participate in the litigation process and disclosure to them of previous statements, as in this case, is a modest way to accomplish that objective. The petitioner could have insisted on some kind of legal document that assured her that she would get a copy of her statement before she gave it. She did not do that. In my view, she did not have to do it and nor should she now be at a disadvantage greater than a party for failing to do it.

It ordered the statement to be produced to the witness with the proviso that it the witness keep the statement confidential.

Minnie v ICBC, 2013 BCSC 1528 (CanLII).

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