Collision Reports, Statutory Privilege + What Must Be Produced

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4 min read
The Traffic Safety Act requires drivers to complete Collision Reports, including mandatory statements, even though those statements may be against their own interests. To address genuine concerns about compelling statements, the Act creates a statutory privilege that protects Collision Reports as a whole and limits their use in litigation. While the entire Collision Report is privileged in terms of use, it is still producible for limited purposes, mainly to confirm the identities of the drivers and vehicle details. Statements made on collision reports remain privileged, though blanket refusals to produce Collision Reports are not justified. The Traffic Safety Act does allow for Collision Reports to be made available to parties involved in accidents and their insurers, as such, parties should assume that opposing parties may already have access to the full report, even though the protected statements cannot be admitted into evidence. The Statements, while not producible in litigation may nonetheless impact on settlement discussions.
The Traffic Safety Act (“TSA”) compels drivers to both disclose demographic information and to provide narrative statements (“Statements”) in the form of Accident Reports following motor vehicle collisions (“Collision Reports”). Narrative statements can be recorded by the drivers themselves or by a peace officer, but are in either event mandatory, notwithstanding the fact that by providing Statements drivers may make admissions against their own interest. Compelling admissions against one’s own interests is a concept that has long been guarded against in the common law and is entrenched in section 7 of the Canadian Charter of Rights and Freedoms. Mandatory reporting of motor vehicle collisions represents a tension between the need to collect and catalogue details of accidents to accurately record statistics to inform public safety on the one hand, and compelling drivers to potentially make admissions against their own interests, on the other, thereby undermining their individual rights. The TSA limits the use of Collision Reports in an attempt to resolve this tension.

The TSA limits who can access Collision Reports and guards against the disclosure of admissions against interest by creating what is frequently called a statutory privilege, a legal exception to disclosing Statements, notwithstanding the fact that Statements attached to Collision Reports are otherwise relevant, material, and therefore producible. The purpose of the privilege is to ensure that drivers give frank Statements to police concerning the cause of accidents.

This statutory privilege, however, is often relied upon in support of overly broad claims of privilege covering the entirety of Collision Reports by counsel when preparing Affidavits of Records. Parties tend to consider the whole of a Collision Report to be covered by privilege and therefore refuse their production when requested. While this is technically correct, privilege exists over the whole of a Collision Report, they nonetheless remain producible for narrow purposes, namely, to verify the identity of the drivers of vehicles involved in a collision and, by extension, the details of the vehicles themselves. Demographic information can be shared; Statements remain privileged.

Knowing what is and is not properly covered by the privilege can ensure that Collision Reports are produced in a manner that preserves statutory privilege while complying with obligations to produce relevant and material information in the course of litigation.

Mandatory Reporting Requirements Under the TSA

Section 71(1) of the TSA directs that “[a] driver of a vehicle involved in an accident shall, in the form and manner prescribed by regulation, provide a report of the accident to

(a) a peace officer having jurisdiction where the accident occurred, or
(b) an employee of a police service having jurisdiction where the accident occurred who is authorized to receive those reports.”

Section 146 of the Operator Licensing and Vehicle Control Regulation stipulates that the report is to be in the form provided for that purpose by the Registrar, but, somewhat confusingly, does not append the form.

Statutory Privilege and Relevance and Materiality Generally

The Alberta Rules of Court provide that a record is relevant or material only if it could reasonably be expected to significantly help determine one or more of the issues raised in a pleading. In the context of a motor vehicle accident, a threshold issue is whether there has in fact been a collision. From there, questions of whether the collision was the result of negligence on the part of one or more of the drivers involved, whether damages resulted, and the quantum of those damages then flow. Collision Reports are both relevant and material, though not determinative, in answering the questions of whether a collision has occurred and who the parties involved are.

The statutory privilege is contained in section 11 of the TSA, outlining who Collision Reports can be released to and the limited purposes for which Collision Reports can be used in legal proceedings. Collision Reports can be disclosed to parties that have either paid or may be liable to pay damages and or who have recovered or may be entitled to recover damages, and may only be used to prove the identities of the parties driving the vehicles involved in an accident. Section 11 also states that Collision Reports are not open to public inspection and are not admissible in evidence for any purpose other than to confirm the identities of the parties who were driving the vehicles involved in the accident or for the purpose of ensuring that reporting has been done accurately.

Parties Adverse in Interest May Already Have Seen the Full Report

Parties asserting privilege over Statements should be alive to the fact that Collision Reports can be made available to any party that (i) has paid or may be liable to pay damages, or (ii) has recovered or may be entitled to recover damages, meaning that parties adverse in litigation, such as a plaintiff or their lawyer suing for damages or an insurance company on behalf of their insured driver, may very well have seen a complete Collision Report, inclusive of Statements, well before the exchange of documents in litigation. If they have not, they will be entitled to the same on request from a peace officer or their employee. If there is prejudicial information in a Collision Report, it is safe to assume that all parties will be alive to it.

The effect of the statutory privilege, however, is that prejudicial information cannot be admitted for any purpose. The courts have protected this statutory privilege. Compelled statements are not open for public inspection, nor can they be compelled to be produced for any purpose. Collision Reports may be made available to a party adverse in interest but cannot be produced except for the limited purpose of confirming the identity of drivers and, by extension, the details of their vehicles. The prejudicial information will nonetheless be known, potentially impacting settlement positions.

Key Takeaways

There is no principled reason to refuse producing Collision Reports when requested by opposing counsel by asserting a blanket statutory privilege. Privilege does exist over the document insofar as its use is proscribed in the context of litigation. They can only be used to confirm the identities of drivers. When in a party’s possession, they must be produced. It should be assumed that parties will be alive to the prejudicial contents of Collision Reports. While this information may not make its way into the record, it will likely colour any settlement discussions.

If you are an insurer or claims professional navigating disclosure issues in motor vehicle litigation, understanding how Collision Reports should be handled can help avoid unnecessary disputes and procedural missteps. Contact Lowell Scott in Edmonton, Jane Freeman in Calgary, or any member of our Insurance Group for assistance.

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