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Supreme Court of Canada protects Aviva’s right to withhold key documents

Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52

The Chambre de l’assurance de dommages (“Chambre”) is a Quebec regulator which was created by the provincial government to investigate complaints related to insurance claims and claims adjustment. While investigating a claims adjuster, Chambre employee Karen Lizotte ordered Aviva Insurance Company of Canada (“Aviva”) to hand over all the documents Aviva held related to a specific ongoing insurance file. The statute that created Chambre entitled its officers to request and receive “any document” they wished to review from an insurer.

Aviva refused to send certain documents to Chambre, claiming these were protected by litigation privilege. Litigation privilege excuses parties in a lawsuit from disclosing materials such as expert reports and other documents which were created in anticipation of or during litigation. Chambre filed an application to court, arguing that it was entitled to any documents it wanted from Aviva. Chambre was unsuccessful at both the original application, and on appeal. It appealed once more to the Supreme Court of Canada.

The Supreme Court of Canada stated that the statutory language that created Chambre was not express enough to force Aviva to release documents that would otherwise be protected by litigation privilege.

Justice Gascon, writing on behalf of the Court, stated that litigation privilege is essential to the legal process. While litigation privilege expires upon the end of litigation, until that time documents will be protected from disclosure except in certain narrow circumstances. This privilege extends protection not only from other parties in the lawsuit, but also to anyone else making a request for these documents, including regulators such as Chambre.

The Supreme Court of Canada allowed Aviva to withhold documents from Chambre as they fell within the scope of litigation privilege, and awarded costs to Aviva.

You can read Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52, in its entirety here.

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