Unger v. Sun Alliance & London Assurance Co., (1978) 11 A.R. 404 (TD)

• Judge: Steer, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 09, 1978
• Citations: (1978), 11 A.R. 404 (TD)

Unger v. Sun Alliance (1978), 11 A.R. 404 (TD)

MLB headnote and full text

Unger v. Sun Alliance & London Assurance Co. Ltd.

Indexed As: Unger v. Sun Alliance & London Assurance Co.

Alberta Supreme Court

Trial Division

Judicial District of Edmonton

Steer, J.

June 9, 1978.

Summary:

This case arose out of an application for an order for the production and inspection of documents. The application was made by a defendant insurance company in an action on a life insurance policy. On March 14, 1977 L.D. Hyndman, Q.C., Master, granted the application by the defendant and ordered the plaintiff to produce the documents in question. The decision of L.D. Hyndman, Q.C., is reported at 4 A.R. 439. The plaintiff appealed to a judge of the Trial Division of the Alberta Supreme Court.

Steer, J., of the Trial Division of the Alberta Supreme Court dismissed the appeal and affirmed the orders made by L.D. Hyndman, Q.C.

Practice - Topic 4570

Discovery - What documents must be produced - General principles - The Alberta Supreme Court, Trial Division, stated that documents must be produced which might reasonably enable a party to advance his own case or damage that of his adversary - The Trial Division stated that production is not limited to documents admissible in evidence at trial or to those which would prove or disprove any point in the action - See paragraph 15.

Practice - Topic 4572

Discovery - Production of documents - What documents must be produced - Whether documents were in the possession or power of a party - Rules of Court (Alta.), Rule 168 - The plaintiff beneficiary claimed the proceeds of a life insurance policy which was issued on the life of the plaintiff's husband - The defendant insurer rejected the claim and alleged that the husband failed to disclose material facts respecting his health in the application for insurance - Before trial the defendant requested the plaintiff to produce hospital records respecting treatment of the husband for cancer - The Alberta Supreme Court, Trial Division, held that the hospital records were within the plaintiff's power and liable to production because the plaintiff could apply (or was entitled to require the personal representative of her husband's estate to apply) for the information pursuant to s. 35 of the Hospitals Act - See paragraph 31.

Practice - Topic 4576

Discovery - Production of documents - What documents must be produced - Privileged documents - Doctor and hospital records - The plaintiff beneficiary claimed the proceeds of a life insurance policy which was issued on the life of the plaintiff's husband - The defendant insurer rejected the claim and alleged that the husband failed to disclose material facts respecting his health in the application for insurance - The insurer requested the plaintiff to produce doctor and hospital records which the plaintiff alleged were privileged - The Alberta Supreme Court, Trial Division, ordered the plaintiff to produce the doctor and hospital records - The Trial Division stated that the legal protection of confidential communication is limited to communications which take place for the purpose of obtaining legal advice from professional persons - See paragraph 33.

Cases Noticed:

Western Union v. Nihill (No. 2), [1975] 3 W.W.R. 242, refd to. [para. 4].

McCurdy v. Oaks Tire & Rubber, 44 O.L.R. 235, refd to. [para. 27].

Walker v. Solloway Mills, [1931] 4 D.L.R. 296, refd to. [para. 27].

Markowitz et al. v. Toronto, [1965] 2 O.L.R. 215, refd to. [para. 27].

Abel v. Stone (1968), 63 W.W.R. 420 (Alta.), refd to. [para. 27].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 27].

MacPhayden v. Employers Liability Assur. Corp., [1933] O.W.N. 72, refd to. [paras. 27, 29].

Toronto General Trusts v. Little, [1962] O.W.N. 141, refd to. [para. 29].

Strass v. Goldsack, [1975] 3 W.W.R. 155, refd to. [para. 33].

Government of Canada v. Hawker Sidley Canada Ltd. (1976), 12 N.R. 277, refd to. [para. 33].

Taylor v. Rundell (1841), 41 E.R. 429, refd to. [para. 37].

Stuart v. Lord Bute (1841), 59 E.R. 943, refd to. [para. 37].

Statutes Noticed:

Rules of Court (Alta.), rule 186 [para. 13]; rule 194(1) [para. 14]; rule 209(1) [para. 7].

Hospitals Act, R.S.A. 1970, c. 174, sect. 35 [para. 21].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 13, p. 35 [para. 29].

Annual Practice (Whitebook), (1976), vol. 1, p. 889 [para. 29].

Counsel:

R.A. McLennan, Q.C., for the plaintiff;

A.T. Murray, Q.C., for the defendant.

This appeal was heard by STEER, J., of the Trial Division of the Alberta Supreme Court. The judgment of STEER, J., was delivered at Edmonton, Alberta on June 9, 1978.