Executive Summary: Key Legal and Evidentiary Issues

• Water damage occurred in June 2022, prompting an insurance payout and subrogated legal action.

• Definity Insurance sued the City of Brossard for damages totaling $56,893.89.

• During discovery, Brossard sought a prior statement from the insured regarding appliances.

• Definity refused to disclose the statement, citing litigation privilege.

• The court confirmed the statement was part of an adjuster’s report and therefore presumed privileged.

• No compelling reason was shown to override the privilege at the pre-trial stage.

Facts and outcome of the case

Background and claims

In June 2022, a property insured by Definity Insurance sustained water infiltration damage. Definity paid out compensation to its insureds and later exercised its subrogation rights by filing a lawsuit against the City of Brossard on December 13, 2022. The total damages claimed amounted to $56,893.89.

Pre-trial developments and disclosure dispute

On July 9, 2024, during the pre-trial examination, Brossard’s legal counsel questioned one of the insureds about the number of refrigerators and freezers present at the time of the incident. The insured could not recall specific details and instead referred to a prior statement provided to Definity Insurance.

Brossard requested disclosure of that earlier statement, arguing it could be relevant to the case. However, Definity refused to provide it, asserting that the statement was protected under litigation privilege.

Legal analysis on litigation privilege

The court analyzed whether the statement was protected by litigation privilege, which shields documents created primarily for the purpose of litigation. Citing prior decisions such as Canadian Union, Solmax International (2016), and Promutuel Assurance (2022), the court reaffirmed that reports and documents prepared by insurance adjusters during the course of handling a claim are generally considered privileged.

It was confirmed that the insured’s statement was incorporated within the adjuster’s report, thus falling under the protection of litigation privilege. The mere reference to the statement by the insured during questioning did not amount to a waiver of that privilege.

Importantly, Brossard did not present any evidence that would justify overriding the presumption of privilege at this pre-trial stage.

Conclusion of the court

The court upheld Definity’s position, finding the statement to be protected by litigation privilege. As a result, Brossard’s request for its disclosure was denied. No costs were awarded to either party.