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Case Summary: Waissmann v Calgary (City)
Defence + Indemnity

Whether or not an occurrence report filled out by an employee after an accident, required by the employer’s rules, is privileged depends on the employer’s intention (dominant purpose) in promulgating the rules – a specific intent on the part of the employee in question does not matter.

Waissmann v Calgary (City), 2018 ABQB 131,
per Master Robertson [4277] 


The Plaintiff Waissmann was one of several passengers on a City of Calgary bus driven by the Defendant Cummins. The bus struck a curb and a light standard, resulting in injuries to Waissmann. He was the only passenger who sued for injuries, though several of the others went to hospital. Waissmann advanced a personal injury claim.
The issue was whether the City of Calgary’s Occurrence Report should be produced by the Defendant City. The Report was prepared by the bus driver and his supervisor, as required by the City’s rules which stated that “both the operator of the vehicle as well as the operator’s supervisor are to complete Occurrence Reports following any incident or accident involving a Calgary transit vehicle”.
Waissmann sought to compel the production of the Reports, while the City asserted litigation privilege.
HELD: For the Defendant; Litigation Privilege established

The Court held that there are two distinct approaches when analyzing litigation privilege – a fact-driven analysis and general policy analysis. The Master felt that the former was appropriate in these circumstances.

a. Master Robertson found that the test for whether litigation privilege applied was whether the “report was prepared for the ‘dominant purpose’ of litigation” [para 18] (citing Nova, An Alberta Corp v Guelph Engineering Co, 1984 ABCA 38 (CanLII), and Moseley v Spray Lakes Sawmills (1980) Ltd, 1996 ABCA 141 (CanLII)).
b. The Court held that it does not matter that litigation may not have been contemplated by the author specifically. The intent to be considered is that of the City in formulating its rule that Occurrence Reports are to be completed for such accidents.

i. It does not matter whether litigation has already started or been threatened (referencing Stobbe v Westfair Foods Ltd, 1998 ABQB 267).
ii. The onus of showing the privilege applies is on the party claiming privilege.
iii. Litigation privilege is distinct from solicitor-client privilege, and because he determined that litigation privilege applied, Master Robertson did not consider whether solicitor client privilege applied.

c. Master Robertson acknowledged that the Court of Appeal in Opron Construction Co v Alberta, 1989 ABCA 279 (CanLII) (“Opron”) that certain “undisputed facts might create skepticism…for example a department store or bus line might give every employee a pad of blank forms, each bearing a printed self-serving heading: “Incident Report in Contemplation of Litigation” [para 17 of Opron]. However, the Court must look to the facts [para 31]. In this case, not every employee was given a blank form to fill out as standard – even ulterior purposes were routed in litigation concerns.