BC Court Upholds City of Victoria's Litigation Privilege in Injury Case

BC Supreme Court upholds opposition to production request over adjuster reports In a personal injury proceeding against the City of Victoria arising from a tripping incident, the British Columbia Supreme Court dismissed the injured plaintiff’s application for the production of adjuster reports found to be covered by litigation privilege. In Harris v The Corporation of the City of Victoria, 2026 BCSC 1730, the 43-year-old plaintiff owned and operated a small gardening and landscaping business. On Apr. 11, 2024, the plaintiff allegedly tripped on a deformed metal plate, partly recessed into a sidewalk in Victoria, BC. On June 3, 2024, her counsel gave the city the required notice for bringing a personal injury action under s. 736 of BC’s Local Government Act, 2015. On June 4, 2024, the city reported the plaintiff’s claim to its liability insurer. The insurer forwarded the claim to a claims examiner, who retained an independent adjuster to investigate. According to a letter sent on July 4, 2024, the independent adjuster believed that the plaintiff should instead sue Telus Communications Inc. because the city was not liable for her claim. However, on July 12, 2024, the plaintiff’s notice of civil claim was served on the defendant city. She alleged broken ribs, shoulder injury, and ligament injury to her hand. The plaintiff applied for the production of two adjuster reports dated June 25, 2024, and July 24, 2024. Opposing production, the defendant asserted litigation privilege. In affidavits, the independent adjuster and the claims examiner deposed that the creation of the documents was in contemplation of litigation. The plaintiff’s counsel successfully applied for leave to cross-examine the independent adjuster and the claims examiner. Thus, the cross-examination of the independent adjuster and the claims examiner occurred last June 23–24. In dismissing the plaintiff’s production application, with costs following the ordinary course, the Supreme Court of British Columbia determined that the defendant city satisfied the onus to prove litigation privilege. First, the court saw a reasonable prospect of litigation at the time of the creation of adjuster reports. The court pointed out that the city had forwarded the claim to its liability insurer after receiving notice of the plaintiff’s claim and of her retainer of legal counsel. The court added that the independent adjuster and the claims examiner confirmed during cross-examination that litigation was in contemplation. Second, given that litigation was reasonably foreseeable, the court ruled that the dominant purpose for creating the adjuster reports was to assess liability to defend against the anticipated claim. The court noted that the independent adjuster and the claims examiner knew that the plaintiff was claiming significant injuries. The BC Supreme Court clarified that it did not support boilerplate language in affidavits that could fail to convey the deponents’ true evidence. However, the court held that the independent adjuster’s and the claims examiner’s statements during cross-examination did not undermine the deponents’ evidence. The court saw no material difference between the deponents’ factual conclusions and their cross-examination answers. The court recognized the independent adjuster’s and the claims examiner’s significant experience in this area, both on their own and when working together. Here are some injury-related decisions in BC arising from falls. Last May 8, the British Columbia Court of Appeal declined to vary a judge’s order denying an extension of time to pursue an appeal in proceedings arising from an action for damages in connection with a trip-and-fall incident. On May 16, 2025, the BC Court of Appeal affirmed the summary dismissal of a personal injury claim seeking personal injury damages under BC’s Occupiers Liability Act, 1996, arising from a slip