IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140723

Docket: S134374

Registry:
Vancouver

Between:

Deborah Phyllis
Maureen Smith

Plaintiff

And

Air Canada and
Steven Todd Siegner

Defendants

Before:
The Honourable Madam Justice Gropper

On
appeal from:  An order of a Master of the Supreme Court of British Columbia,
dated April 23, 2014 (Smith v. Air Canada, Vancouver Registry No.
S134374).

Oral Reasons for Judgment
In Chambers

[1]            
THE COURT: These are my reasons in this
case.

Introduction

[2]            
Air Canada appeals a decision of Master Baker of
April 23, 2014 in which he ordered disclosure of an incident report dated
August 18, 2012 that was prepared by a member of Air Canada’s personnel
following an incident during the boarding of an Air Canada flight scheduled to
depart from Vancouver to Toronto.

[3]            
The plaintiff, Ms. Smith, was in her seat
when a bag allegedly fell on her after a fellow passenger failed to store it
securely in the overhead compartment.

[4]            
On June 11, 2013, Ms. Smith commenced a
proceeding against Air Canada and the defendant John Doe to recover damages
that she alleges she suffered. Among other things, Ms. Smith alleges that
Air Canada was negligent.

Legal Framework

[5]            
The parties agree that the standard of review of
a Master’s decision is whether the decision is clearly wrong:  Abermin
Corporation v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188
(S.C.).

[6]            
In respect of the production of documents over
which privilege is claimed the legal principles to be applied on such an
application are succinctly reviewed by Master Bouck in Beer v. Nickerson,
2010 BCSC 718, paras. 17-18:

[17]  The legal principles to be applied on this application
are well-settled and set out in Hamalainen (Committee of) v. Sippola
(1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, [2007 BCSC
1392]. Those principles are as follows:

1. The party withholding disclosure
bears the onus of establishing a claim for privilege over a document.

2. The test for considering whether
litigation privilege is established is two-fold:

(a)  Was litigation a reasonable
prospect at the time the document in dispute was created?

(b)  If so, was the dominant
purpose of the document’s creation for use in litigation? (commonly known as
the “dominant purpose” test.)

3. Litigation can properly be said
to be in reasonable prospect when a reasonable person, possessed of all the
pertinent information including that particular to one party or the other,
would conclude that it is unlikely that the claim for loss will be resolved
without it.

4. However, the prospect of
litigation alone is not sufficient to meet the claim of privilege. Nor does the
denial of liability alone mean that all documents produced thereafter are
subject to a claim for privilege. As stated by the court in Hamalainen v.
Sippola:

Even in cases where litigation is
in reasonable prospect from the time a claim first arises, there is bound to be
a preliminary period during which the parties are attempting to discover the
cause of the accident on which it is based. At some point in the information
gathering process the focus of such an inquiry will shift such that its
dominant purpose will become that of preparing the party for whom it was
conducted for the anticipated litigation. In other words, there is a continuum
which begins with the incident giving rise to the claim and during which the
focus of the inquiry changes. At what point the dominant purpose becomes that
of furthering the course of litigation will necessarily fall to be determined
by the facts peculiar to each case.

6. It is not incumbent upon the
court to accept without question the opinion of either deponent on one of the
very issues that is to be decided. Whether or not litigation was a reasonable
prospect is a matter for the court to decide on all the evidence.

[18]  To these principles I would
add that the dominant purpose test is consistent with “the more contemporary
trend favouring increased disclosure”: Blank v. Canada (Department of
Justice), 2006 SCC 39 at paras. 60-61.

Evidence Before the Master

[7]            
In support of Air Canada’s position that the
report not be produced it filed two affidavits; the first by Alexis Soroka, the
service director of the flight. She prepared the incident report. In her
affidavit she describes her role as including management of onboard customer
accidents or injuries. In respect of customer injuries she puts customer safety
first, and in performing this duty she speaks with the injured customer,
assesses her need for medical attention, calls for medical assistance, and
assists the customer with safely disembarking the flight, if necessary. That is
what she did in the incident involving Ms. Smith.

[8]            
Ms. Soroka says she was trained that in the case
of passenger injury litigation is highly probable. She was trained, and it is
her practice, to prepare an incident report following any passenger injury to
provide a contemporary incident account of what occurred and what steps were
taken in regard to the incident. She says that she prepares the report to
provide Air Canada’s law branch, or its external legal counsel, with
information regarding the event to assist in their representation of Air Canada
or its crew in future litigation.

[9]            
Ms. Soroka also contemplates alternate reasons
for preparing the incident report in her affidavit and rejects them. She says
she is not concerned with documenting the facts of the incident for any
possible uses aside from litigation.

[10]        
Ms. Soroka prepared the incident report and
delivered it to the airport duty manager in Vancouver. The report was then
delivered to the general claims department which opened a pending claim file
for Ms. Smith. After Ms. Smith commenced her action in June 2013 the
incident report was forwarded to the law branch to assist in its response to
this litigation.

[11]        
The second affidavit filed by Air Canada in
support of its position is that of Alan Gilchrist, the manager of general
claims, who conducts training of Air Canada’s service directors in respect of
reporting in-flight incidents, particularly involving in-flight customer injury.
He says that the incident reports are primarily prepared for the eventuality
that Air Canada or its employees are subject to litigation arising from a
customer incident and the goal is to provide the law branch or its external
legal counsel with information regarding the event to represent Air Canada in
the future.

[12]        
Mr. Gilchrist said that he highlights in the
training that in the case of customer injury litigation is highly probable and
the incident report must be drafted for use by the law branch.

[13]        
Mr. Gilchrist says that incident reports are
confidential documents and are kept that way. Where the incident report
involves injuries, the reports are provided to the general claims department
who opens a claims file. The general claims department administers the claim
under the oversight of attorneys in Air Canada’s law branch. If an action is
commenced regarding the incident the entire file, including the incident
report, is forwarded to the law branch attorney.

[14]        
Mr. Gilchrist says that it is Air Canada’s
policy not to forward an incident report to an employee’s manager and it will
not form the basis of discipline. Mr. Gilchrist describes the incident
report form; he highlights that it is to be completed for information of the
company’s solicitor and his advice thereon, and it specifies the name and
contact information of any key witness to the incident, should it be recorded.

The Master’s Decision

[15]        
Master Baker identified the two-step process to
determine whether the document should be disclosed in accordance with Hamalainen.
He reviewed the affidavits provided by Air Canada.

[16]        
At paragraph 10 of his decision Master Baker
addressed the question of whether litigation was a reasonable prospect at the
time the document was prepared. In spite of Ms. Soroka’s affidavit, Master
Baker questioned how Ms. Soroka would know at the time the incident
occurred that litigation was very probable. He considered whether that was a
reasonable perception and conclusion at the time the document was prepared.

[17]        
Master Baker considered the decision of
Mathew v. Delta School District #37, 2010 BCCA 233, that had upheld his
conclusion that an incident report prepared at the time of the incident at the
school almost simultaneously and in extreme proximity to the event itself was
not prepared for the dominant purpose of preparation for litigation.

[18]        
Ultimately Master Baker considered this case to
be fact driven. He specifically considered the proximity of the event to the
preparation of the report, the advent or not or presence or not, of counsel,
the gravity of the event itself, and the nature of the injury. Master Baker
considered the particular circumstances giving rise to Ms. Smith’s injury,
that is, luggage apparently dropped on her by a passenger. He then states at
paragraph 14:

[14]      I just
cannot see how it is reasonable to conclude, as Ms. Soroka said she did, that
litigation was a reasonable prospect and that the dominant purpose was
litigation. Despite her training — I am not negating what she says about her
training — to carry on and acknowledge and accede to that position is to give
an institution or a corporation such as Air Canada a complete and blanket
protection from any requirements of disclosure.

[19]        
Master Baker was also apparently concerned about
whether the plaintiff was given a choice of whether or not she could travel,
notwithstanding the paramedic’s determination that she was not fit to fly at
paragraphs 1 and 2 of the decision, and at paragraphs 17 to 20 Master Baker
addressed his concern about restrictions and control over passengers travelling
in an aircraft. I agree with the plaintiff that these comments are obiter.

Position of the Parties

Air Canada

[20]        
Air Canada relies on the decision of the Federal
Court in Re Privacy Commissioner of Canada v. Air Canada, 2010 FC 429. The
court in that case considered whether an incident report prepared by a service
manager in respect of a passenger’s conduct on an aircraft was to be disclosed
in the context of the privacy commissioner’s hearing under section 15 of the Personal
Information Protection of Electronic Documents Act, S.C. 2000, c. 5. The Federal Court found the incident report to be privileged.

[21]        
Air Canada says it presented almost identical
evidence to Master Baker to that which was presented before the court in Re
Privacy Commissioner. Air Canada argues that the Master’s reliance on
Mathew was misplaced as that case did not involve a consideration of
whether the records were prepared in reasonable contemplation of litigation. Here,
Air Canada says, the Master conflated two elements of the test for litigation
privilege. Further, Air Canada says the affidavits it tendered explain that the
incident report was prepared specifically for consideration by Air Canada’s law
branch.

[22]        
Air Canada argues further that it is extremely
vulnerable to liability claims for incidents on board aircrafts and that the Master
did not properly consider that factor. Air Canada submits that the Master was
clearly wrong when he determined that the incident report was not made in
reasonable contemplation of litigation.

Ms. Smith

[23]        
Ms. Smith argues that the Master was not clearly
wrong. His decision was based on the facts surrounding the preparation of the
incident report. It is for the Master to make that factual finding. The Master
is not required to accept the assertions of the deponents on the very issue he
has to decide. Here, Ms. Smith says, the Master made a finding of fact
based on the surrounding circumstances and he applied the correct legal principles.
The test is not how Air Canada trains its employees or whether litigation is
highly probable. Ms. Smith argues that Air
Canada’s position is not consistent with the view expressed in Blank,
that is that the more contemporary trend favours increased disclosure.

Discussion and Analysis

[24]        
As noted, the first part of the test, whether
the document was prepared in contemplation of litigation, must be satisfied
before the court goes on to consider the dominant purpose of the creation of
the document. Master Baker considered the first part of the test in light of
the affidavits that were provided and as a matter of fact. He properly
considered, in my view, that when Ms. Soroka prepared her incident report
she was attempting to discover the cause of the accident, whether there were
witnesses, and the nature of the injuries sustained by Ms. Smith. She said
that her first concern was customer safety.

[25]        
As with any claim of privilege, the trier of
fact must assess whether the assertion that the document was prepared in
contemplation of litigation is reasonable. He cannot simply rely on the
statement that the document was prepared in contemplation of litigation. If
that were so the mere assertion would determine whether the document was
privileged.

[26]        
Master Baker assessed the circumstances at the
time the report was written and concluded that it was not reasonable to accept
that Ms. Soroka prepared the incident report in contemplation of
litigation.

[27]        
As I stated, the Master applied the appropriate
test and reached a reasonable conclusion. The Master’s view that litigation was
not a reasonable prospect at the time the incident report was created is not
clearly wrong.

[28]        
Having reached that conclusion, it was not
necessary for Master Baker to consider the dominant purpose test. He did not
conflate the two-part test as Air Canada suggests. Air Canada did not clear the
first hurdle.

[29]        
While it is unnecessary for me to consider, I do
not find the decision in the Re Privacy Commissioner case to be relevant
or binding on this Court. The circumstances giving rise to the incident report
prepared in that case are considerably different than exist here. That case
involved an incident arising where a flight attendant was involved with a
passenger who was caught drinking alcohol on a flight which was not served by
Air Canada, which is contrary to the rules. The incident report was provided to
Air Canada’s legal department, not in respect of a potential claim by the
passenger, but to assist Air Canada’s lawyer to determine if it should pursue
any liability against that passenger, or encourage the police to lay charges. The
context was not an injury to a passenger and the circumstances were entirely
different.

[30]        
I do not accept that the document is privileged
because of the vulnerability of Air Canada to litigation claims from its
passengers. Air Canada has a specific department to deal with claims, of which
Mr. Gilchrist is the manager. Despite the presence of the claims
department within the law department of Air Canada, it is clear that the claims
department deals with claims until the matter becomes a matter of litigation. It
is then that the incident report is forwarded to Air Canada’s legal counsel. This
too does not establish that the document was prepared in contemplation of
litigation.

[31]        
The application for a review of the Master’s
decision is dismissed. The document is to be produced.

[32]        
Ms. Smith is entitled to her costs.

[Submissions re costs]

[33]        
THE COURT:  The costs of this application are to the
plaintiff.

“Gropper J.”