Defendant claims litigation privilege over report after it retained risk management firm
In a case arising from a pedestrian motor vehicle accident, the Alberta Court of King’s Bench dismissed the injured plaintiff’s application to compel the disclosure of a surveillance file, including a report, raw footage, and still photographs in the defendant’s possession.
In Blackstone v Chen, 2026 ABKB 69, the plaintiff sustained injury in a pedestrian motor vehicle accident. She claimed damages for loss of income and earning capacity.
The defendant did not dispute liability. The defendant retained Westbridge Ventures Canada LLP, a risk management firm, to conduct surveillance of the plaintiff.
The defendant claimed litigation privilege over Westbridge’s surveillance report. The plaintiff asked the court to require the defendant to disclose Westbridge’s entire surveillance file.
The plaintiff alleged that the defendant waived privilege over the surveillance report by expressing an intention to use it at trial to impeach her credibility and by listing Westbridge’s private investigator (PI) as a potential trial witness.
The defendant countered that it could use the surveillance report to challenge the plaintiff’s credibility at trial without disclosing it beforehand and could list Westbridge’s PI as a possible witness solely addressing any questions about the surveillance report’s authenticity, rather than providing any substantive evidence.
Disclosure application denied
Justice O.P. Malik, as a case management justice (CMJ) of the Court of King’s Bench of Alberta, left the trial justice to answer all questions about the surveillance file’s admissibility and use, as well as the application costs.
The CMJ ruled that the plaintiff failed to submit any legal authority contradicting the principle in Laube v Juchli, 1998 ABCA 319, and Pfeifer v Westfair Foods Ltd, 2004 ABCA 422, affirmed in Terrigno v Fox, 2023 ABKB 89.
According to these judicial precedents, as long as the party has disclosed the existence of a privileged record, they could maintain privilege over a record to be used for the exclusive purpose of impeaching a trial witness.
Citing O’Scolai v Antrajenda, 2008 ABQB 77, the plaintiff sought to waive the privilege over the surveillance file on fairness and consistency grounds. The CMJ distinguished this case from O’Scolai in three respects:
- Unlike in O’Scolai, where the defendants wanted a private investigator to testify as a factual witness about his actions and observations during surveillance, the defendant in this case was only calling Westbridge’s PI to answer queries regarding the surveillance report’s authenticity.
- The imperatives of fairness and consistency did not apply because the materials in the surveillance file did not appear to inform the expert evidence that the defendant sought to admit in this case, unlike in O’Scolai and in the various cases mentioned therein.
- Unlike in O’Scolai and in other cases cited, where the court held that a party could not selectively waive privilege over portions of the evidence that formed the same subject matter as the evidence over which a party claimed privilege, this case involved different circumstances.
The CMJ explained that the defendant in this case claimed privilege over the entire surveillance file, with no portions disclosed to the plaintiff or any of its experts.
According to the CMJ, in the event of the admission of the surveillance report to impeach the plaintiff, the trial justice should determine whether to order the disclosure of other parts of the surveillance file constituting the “very same particular subject matter.”
