Levin v. Boyce, (1985) 34 Man.R.(2d) 1 (CA)

• Judge: Monnin, C.J.M., Matas and Philp, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 12, 1985
• Jurisdiction: Manitoba
• Citations: (1985), 34 Man.R.(2d) 1 (CA)

Levin v. Boyce (1985), 34 Man.R.(2d) 1 (CA)

MLB headnote and full text

Levin v. Boyce

Indexed As: Levin v. Boyce

Manitoba Court of Appeal

Monnin, C.J.M., Matas and Philp, JJ.A.

April 12, 1985.

Summary:

Following a motor vehicle accident, the defendant insured gave a statement to her insurer, Manitoba Public Insurance Corporation. The statement found its way into the possession of the defendant's counsel. The plaintiff, who sued the defendant for damages for personal injuries suffered in the accident, sought production of the statement. The defendant claimed that the statement was privileged under s. 19 of the Automobile Insurance Act. The Referee denied the claim for privilege. The defendant appealed.

The Manitoba Court of Queen's Bench in a judgment reported 30 Man.R.(2d) 151 allowed the appeal and held that the statement need not be produced to the plaintiff. The plaintiff appealed.

The Manitoba Court of Appeal allowed the appeal and ordered the defendant to produce her statement. The court held that s. 19 did not protect a statement given to the insurer from admissibility as evidence. See paragraphs 1 to 16. The court held further that the defendant's statement was not privileged at common law, because the dominant purpose in giving the statement was not for purposes of litigation, but to comply with the statutory requirement to make the statement. See paragraphs 17 to 31.

Evidence - Topic 4209

Witnesses - Privilege - Communications to public officials - Compulsory reports to public insurers - All insured parties to an automobile accident were required in Manitoba by regulation to report particulars to their insurer, the Manitoba Public Insurance Corporation - Section 19 of the Automobile Insurance Act provided that statements, information and reports given to the Corporation under the Act and Regulations were confidential and "shall not be made public for any purpose whatsoever" - The Manitoba Court of Appeal held that s. 19 did not protect statements from admissibility as evidence and ordered that a defendant produce to the plaintiff the statement she gave to the corporation - See paragraphs 1 to 16.

Insurance - Topic 5225

Automobile insurance - Compulsory government schemes - Rights and duties of insurer - Where conflicting claims between insureds under separate contracts issued by common insurer - The plaintiff brought an action against the defendant for damages arising out of a motor vehicle accident - Both were insured by the Manitoba Public Insurance Corporation - The defendant gave the required statement about the accident to the Corporation, which defended her - The defendant's counsel of record was the Corporation's general counsel, who obtained possession of the statement - The Manitoba Court of Appeal in ordering the defendant to produce the statement discussed the duty of such a common insurer to be fair and disapproved of the statement finding its way into the defendant's possession - See paragraphs 6 to 11.

Practice - Topic 4578

Discovery - Documents - Production - What documents must be produced - Privileged documents - Document prepared in contemplation of litigation - The Manitoba Court of Appeal held that to be privileged as a document made in contemplation of litigation the dominant purpose of making the document must have been for litigation - Hence, where a statement was given to an insurer primarily because of a statutory duty to make the statement, the statement was not privileged, even though it was given partly in contemplation of litigation - See paragraphs 17 to 31.

Statutes - Topic 1569

Interpretation - Implied meaning - Express language necessary - Infringement of public or private or common law rights - Section 19 of the Automobile Insurance Act provided that statements given to the Manitoba Public Insurance Corporation under the Act and Regulation were confidential and "shall not be made public for any purpose whatsoever" - The Manitoba Court of Appeal held that s. 19 did not protect such statements from admissibility as evidence, stating that express language would be necessary to have such an effect - See paragraphs 14 to 16.

Cases Noticed:

Later v. M.P.I.C. (1985), 30 Man.R.(2d) 10 (Man. Q.B.), consd. [para. 7].

O'Morrow v. Borad et al., 167 P. 2d 483, consd. [para. 11].

Steeves v. Rapanos, [1983] 2 W.W.R. 380 (B.C.C.A.), appld. [para. 15].

Kampus et al. v. Bridgeford et al. (1983), 126 D.L.R.(3d) 175 (O.H.C.), appld. [para. 16].

Waugh v. British Railways Board, [1979] 2 All E.R. 1169, appld. [para. 22].

Nova, An Alberta Corporation v. Guelph Engineering Company et al., [1984] 3 W.W.R. 314; 48 A.R. 241 (C.A.), appld. [para. 23].

McCaig et al. v. Trentowsky (1983), 47 N.B.R.(2d) 71; 125 A.P.R. 71; 148 D.L.R.(3d) 724 (C.A.), appld. [para. 23].

Voth Brothers Construction v. North Vancouver School Board et al., [1981] 5 W.W.R. 91; 29 B.C.L.R. 114; 23 C.P.C. 276 (C.A.), appld. [para. 23].

Davies v. Harrington (1980), 39 N.S.R.(2d) 258; 71 A.P.R. 258; 115 D.L.R.(3d) 347 (C.A.), appld. [para. 23].

Sumitomo Shoji Canada Limited v. Sanko Steamship Co. Ltd. et al. (1978), 5 B.C.L.R. 306, not folld. [para. 24].

Birmingham and Midland Motor Omnibus Co. Ltd. v. London & Northwestern Ry. Co., [1913] 3 K.B. 850, not folld. [para. 24].

Lehman et al. v. Insurance Corporation of Ireland et al., [1985] 1 W.W.R. 615; 25 Man.R.(2d) 198, consd. [para. 25].

Kowall v. McRae, [1980] 2 W.W.R. 492; 14 C.R.(3d) 178; 108 D.L.R.(3d) 486, 2 Man.R.(2d) 78, dist. [para. 27].

Bourbonnie v. Union Insurance Society of Canton, Limited (1959), 28 W.W.R.(N.S.) 455 (Alta. C.A.), not folld. [para. 32].

McLellan v. Tibo et al., [1984] 4 W.W.R. 652 (Sask. Q.B.), not folld. [para. 32].

Slavutych v. Baker et al., [1975] 4 W.W.R. 620; 3 N.R. 587, dist. [para. 32].

Statutes Noticed:

Automobile Insurance Act, S.N. 1970, c. 102, sect. 19 [para. 3].

Automobile Insurance Act Regulations, Reg. 333/74, sect. 34(1)(b) [para. 8]; sect. 37(f) [para. 18].

Highway Traffic Act, S.N. 1970, c. H60, C.C.S.M., c. H-60, sect. 151(1) [para. 14].

Manitoba Public Insurance Corporation Act - see Automobile Insurance Act.

Counsel:

D.J. Nelko and M. Finlayson, for the appellant;

T.B. Kumka, for the respondent.

This case was heard on April 2, 1985 at Winnipeg, Manitoba, before Monnin, C.J.M., Matas and Philp, JJ.A., of the Manitoba Court of Appeal.

On April 12, 1985, Philp, J.A., delivered the following judgment for the Court of Appeal: