In 2019, the Plaintiff, Fedotkina, was injured in a motor vehicle accident by the Defendant, Obodzinski. The injuries sustained by Fedotkina were similar to the injuries she had sustained in a previous accident in 2015. As a result, a dispute arose regarding the production of independent medical examinations (IME) and other medical/legal reports completed on Fedotkina in relation to the 2015 accident.

Specifically, Obodzinski sought the production of such records as responses to undertakings arising from the questioning of the Plaintiff. Obodzinski initially argued that these documents were subject to litigation privilege and therefore not producible, but then objected to production on the basis of relevance and materiality.

Decision

On the issue of relevance and materiality, Judge Farrington determined that due to the overlap between the injuries claimed arising form the former accident and those in the present accident, the prior reports sought related to the injuries and the relief sought in the current action. The requested information was found to be relevant and material. Although Obodzinski argued that such a decision would “significantly alter personal injury practice,” Judge Farrington disagreed, determining that relevant and material non-privileged information is always producible, and the process of differentiating injuries from a prior accident is encountered often in personal injury matters.

Regarding the litigation privilege argument raised by Fedotkina, Judge Farrington held that “any litigation privilege that might have attached to the reports sought is spent and no longer applicable. The reports were not prepared for the dominant purpose of this action and any prior litigation privilege was spent upon resolution of the first accident claim.” In making this decision, Judge Farrington cited the Supreme Court’s decision in Blank v Canada (Minister of Justice), 2006 SCC 39, which found that “the purpose of litigation privilege is to create a “zone of privacy” in relation to pending or apprehended litigation. Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose — and therefore its justification.” At the end of the day, litigation privilege ends when the litigation ends.

Obodzinski also made objections to the production of the reports on the basis that solicitor-client privilege applied. Judge Farrington rejected this argument, reiterating that although solicitor-client endures beyond the scope of the litigation (to time immemorial), it applies only to communications between counsel and client as well as the solicitor’s working materials and brief. As the expert medical opinions were neither, this type of privilege could not apply.

Finally, Fedotkina requested that in the event production was ordered, that they be able to review the materials first for potential redactions and privilege claims. The Court noted that this request was made too late, and that further review of the materials would “only lead to further disputes and claims about producibility and privilege”, and that any privilege arguments would have had to been made within the current application.

Key Takeaway

Expert opinions regarding a plaintiff’s injuries and condition in relation to a prior action are producible in a subsequent personally injury action, as they will almost always be relevant and material, and are not subject to privilege upon resolution of the action for which they were prepared. A defendant can rely on this decision by Judge Farrington to compel a plaintiff to produce prior IME reports within the plaintiff’s Part 5 disclosure in subsequent personal injury action(s), and failure to do so likely contravenes Rule 5.6 of the Rules of Court, which obligates parties to produce all relevant and material records.

If you require guidance or have concerns about the intricacies of producing medical reports in personal injury cases contact Jill Bishop in Calgary, Christine Pratt in Edmonton, or any member of Field Law's Insurance Practice Group.

Link to decision: Fedotkina v Obodzinski, 2023 ABKB 632