In the March 8, 2018 decision of Lipovetsky v. Sun Life Assurance Company of Canada, the plaintiff brought a motion to the Superior Court of Justice for a more fulsome affidavit of documents from the defendant insurer. The most interesting allegation in their motion was that the insurer did not sufficiently particularize the surveillance information set out in the Schedule B list of privileged documents. Of note, the parties had not yet undergone examinations for discovery at the time of the motion.

The insurer listed three investigation documents in Schedule B under litigation privilege, noting that each was a report, listing the name of the investigation company completing the report, the recipient of each report and the date of the report, as well as noting that they had enclosures. No further information was listed in the Schedule B about each report.

The plaintiff took the position in order to determine the propriety of the privilege claim, she was entitled to know whether the document is a report, photograph or video, the dates of same, the name of the investigative entity preparing same, the number of pages, number of photographs and number of videos, as applicable. She further argued that she was entitled to know the times when each session of surveillance began and ended, the names and addresses of the individuals who conducted each round of surveillance, the times when any recording began and ended and when any photographs were taken, the names or a general description of the websites that the surveillance investigators visited in connection with the surveillance, the names of any organizations or individuals with whom the investigators communicated, the dates of those communications, and whether oral or written statements were received.

Master Jolley correctly noted that the level of detail sought by the plaintiff to be included in the affidavit of documents is not required in an affidavit of documents. A plaintiff has the opportunity at the examination for discovery to ask the defendant about the details and contents of the investigation reports, including dates, times and locations, particulars of the activities and observations made and names and addresses of the persons who conducted the surveillance. If the plaintiff wants to dispute the privilege claim after discoveries, they are entitled to bring a motion to challenge the claim of privilege. As such, Master Jolley denied the plaintiff’s motion.

The takeaway from this decision is that Schedule B of an affidavit of documents must “set out the nature and date of the privileged document and other particulars sufficient to identify it”, as noted in the preamble to Schedule B of the affidavit of documents. It appears that all that is required to sufficiently do so is to list the following:

  • Type of document (e.g. report, video, photograph)
  • Date of document
  • Entity that created the document
  • Recipient of each report

Any further information regarding the contents of each report can be obtained by the other party at examination for discovery and need not be preemptively provided by the party claiming privilege.

See Lipovetsky v. Sun Life Assurance Company of Canada, 2018 ONSC 1649 (CanLII)

Gabe Flatt

Gabe Flatt has an insurance law practice that has focused exclusively on insurance defence for the past 8 years. He has developed an expertise in complex priority and loss transfer disputes as well as general coverage issues.

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