nan 1999 SKQB 106 Q.B. A.D. 1996 No. 1329 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SUSAN GARRETT, Administrator Ad Litem of the Estate of CLIFF ROBERT GARRETT, Deceased; MARGARET ATKINSON, Administrator Ad Litem of the Estate of JOHN SAMUEL ATKINSON, Deceased; SHERRY LYNN PARENTEAU, Administrator Ad Litem of the Estate of FLOYD EDWARD PARENTEAU, Deceased; DAWN WOOD, Administrator Ad Litem of the Estate of ALLAN WOOD, Deceased; MAUREEN BARBARA WHALLEY, Administrator Ad Litem of the Estate of NORMAN VICTOR WHALLEY, Deceased; GEORGE NOOITGEDAGT, Administrator Ad Litem of the Estate of HENRY HILLE NOOITGEDAGT, Deceased; SUSAN DOUGHTY, Administrator Ad Litem of the Estate of KENNETH NORMAN DOUGHTY, Deceased; MARGARET KANE, Administrator Ad Litem of the Estate of WILLIAM BARRY KANE, Deceased; PAULINE WAINWRIGHT, Administrator Ad Litem of the Estate of CHRISTOPHER WAINWRIGHT, Deceased; and SUSAN GARRETT, SUZANNE PEDDLE, MARGARET ATKINSON, SHERRY LYNN PARENTEAU, DAWN WOOD, MAUREEN BARBARA WHALLEY, SUSAN DOUGHTY, MARGARET KANE and PAULINE WAINWRIGHT, who each sue on their behalf; AND ALL OF THE PLAINTIFFS HEREIN who commence this action on behalf of themselves, the Estates of the Deceaseds, and all of the Dependents of the said Estates under The Fatal Accidents Act and CAMECO CORPORATION; CAMECO GOLD INC., LEN HOMENIUK; MAURICE LINDSAY; AL ROSSER; KUMTOR OPERATING GROUP; KUMTOR GOLD INC., and CAMECO CORPORATION, carrying on business under the firm name and style of KUMTOR OPERATING COMPANY, KUMTOR OPERATING GROUP, CAMECO/KUMTOR and CAMECO GOLD; ALTO CONSTRUCTION LTD.; P.T.I. GROUP, INC.; P.T.I. INTERNATIONAL LTD., TRAVCO INDUSTRIAL HOUSING LTD.; KILBORN ENGINEERING (SASKATCHEWAN) LTD., KYRGYZSTANABAZHOLDORU NATIONAL AIRLINE, carrying on business under the firm name and style of KYRGYZSTAN NATIONAL AIRLINE and the said KYRGYZSTAN NATIONAL AIRLINE, CLINTONDALE AVIATION INC.; and FORT SASKATCHEWAN AMBULANCE SERVICES, INC., KUMTOR MOUNTAIN COMPANY, KILBORN ENKA INC. and KILBORN WESTERN INC. DEFENDANTS L.L. Decore E. Onusko for the plaintiffs L.W. Olesen, Q.C. S. Delblanc for the defendants, Cameco, Kumtor Operating Group et al. S. Parthev for the defendant, Kilborn Engineering G. Young, Q.C. for the defendant, Clintondale Aviation FIAT LAING J. September 30, 1999 [1] The applications to be considered hereinafter seek better discovery both testimonial and documentary. The applications include one by the plaintiffs, one by the Cameco/Kumtor Operating Company group of defendants represented by Mr. Olesen, and one by the Kilborn Engineering group of defendants. The objections to questions or production of documents taken at the examinations for discovery fall under the broad categories of relevance, and privilege. Background [2] The action arises out of a helicopter crash which occurred in the Republic of Kyrgyzstan on October 4, 1995 which resulted in the death of three crew members and 12 passengers. The helicopter was owned and operated by the defendant, Kyrgyzstan National Airline. [3] The nine plaintiffs are the legal representatives of deceased passengers who were employed by some of the named corporate defendants who were involved in the construction of gold mine in Kyrgyzstan. The location of the mine site was considerable distance from the base camp, and it was necessary to ferry workers back and forth. For this purpose road (the quality of which is in issue) was constructed to allow for land transportation (a six hour trip), and helicopter transportation was the other method of transporting workers. [4] The Kumtor gold property is owned by Kumtor Gold Company, joint venture company, incorporated in Kyrgyzstan. The Kyrgyzstan government owns two-thirds of the shares, and Kumtor Mountain Corporation owns one-third. Kumtor Mountain Corporation is wholly owned subsidiary of Cameco Gold, which in turn is wholly owned subsidiary of Cameco. [5] The defendant, Kumtor Operating Company (“KOC”) was incorporated in Kyrgyzstan and is wholly owned by Kumtor Mountain Corporation. KOC became the operator of the Kumtor Gold Mine project by an agreement dated September 3, 1993 between itself and Kumtor Gold Company. [6] The defendant, Kilborn Enka Inc. is an engineering firm which entered into services contract with KOC on July 5, 1994, to provide engineering services to the Kumtor Gold project. [7] The plaintiffs allege that one or more of the above defendants carried on a negligent and reckless helicopter shuttle operation to and from the work site. The plaintiffs have pleaded why they allege the helicopter transportation by Kyrgyzstan National Air was unsafe. The allegations include all aspects of maintenance and operations of the helicopter service. They also allege the defendants knew it was unsafe (paragraph 13 of the statement of claim). [8] The statement of claim alleges the “bulk of responsibility for providing transportation in Kyrgyzstan was to be performed by and was assumed by Cameco directly or through KOC” (paragraph 12 of the statement of claim). Kyrgyzstan National Air has not appeared in the action. The plaintiffs plead the helicopter shuttle service was inherently dangerous, and allege that the Cameco group of defendants cannot avoid liability by reason of having hired an independent contractor. The Pleadings [9] The plaintiffs’ have pleaded in paragraph 12 of the statement of claim: The Plaintiffs further state, and the facts are, that the bulk of responsibility, contractual and other duties in regard to the providing of transportation within the Republic of Kyrgyzstan was to be performed by and was assumed by Cameco directly or through K.O.C. Alternatively, same was to be performed jointly by each of the Defendants. KOC as the operating company on site admits in it’s defence that it requested Kyrgyzstan National Airline to transport workers the day of the accident. The defendants’ Cameco Corporation, Cameco Gold Inc. and Kumtor Mountain Company in their collective statement of defence have pleaded in paragraph seven: In answer to the whole of the Claim herein, the Defendants, Cameco, Cameco Gold and Kumtor Mountain deny that they or any of them are or were the alter ego of Kumtor Operating Company (hereinafter referred to as “KOC”) and state that KOC was and is separate and distinct corporation which operates the Kumtor Project independently and of its own will by its own Board of Directors. Any decisions involving transportation made by KOC were made by it independently of Cameco, Cameco Gold and Kumtor Mountain. The foregoing pleadings have placed in issue who was the decision maker with respect to the mode of transportation of helicopter flights, and the selection of Kyrgyzstan Air as the operator of such flights. [10] Paragraph 13 of the statement of claim states in part: .The Plaintiffs state, and the fact is, that the Defendants knew or ought to have known that Kyrgyzstan Air and/or its crews habitually or regularly operated its aircraft negligently and recklessly, as above-mentioned. nan In response to this pleading both Kumtor Operating Company in its statement of defence (paragraph 11) and Cameco Corporation, Cameco Gold Inc. and Kumtor Mountain Company in their collective statement of defence (paragraph 11) do not admit that Kyrgyzstan Air was unsafe, and deny that they knew or ought to have known the airline was unsafe. [11] Based on the joinder of issues set out in the foregoing, the plaintiffs are entitled to question the respective officers of the defendant corporations, and receive production of all documents touching on the issues of: (i) Why helicopter transportation was selected. (ii) Why Kyrgyzstan Air was selected as the helicopter carrier. (iii) Who made the decisions with respect to each of the foregoing. (iv) Is KOC the alter ego or agent for Cameco with respect to the foregoing decisions? (v) Was Kyrgyzstan Air an unsafe airline. (vi) If so, did or should any of the defendants know or have known it was unsafe. (vii) Was the helicopter shuttle service an inherently dangerous operation. (viii) If so, can the defendants rely on the independent contractor defence. The Plaintiffs’ Application [12] The plaintiffs in their brief filed with respect to their application stated: The Plaintiffs will seek to show one or more of the following theories or concepts pointing towards liability of some or all of the Defendants. The theories include: 1. Construction of the road from Tamga to Kumtor site was over budget and use of helicopters was faster and cheaper; 2. Plans, at the outset, called for use of fixed wing aircraft to landing strip at Kumtor site. But construction of the landing strip was cancelled to save money; 3. The road was not fully completed and it took too much time to get workers from Bishkek to the site; 4. KAH helicopters then had to be used because they were faster and cheaper; 5. KOC, Cameco and other Defendants knew the helicopters were unsafe, yet continued to use them; 6. There was resulting saving of cost and time. 7. Were it not for the above (and other actions) the accident would not have occurred. It is submitted that detailed perusal of documents will suggest the possibility of these theories; thus their relevance. [13] Counsel for the Cameco/Kumtor defendants states in his brief as follows: On page of the Memorandum of the Plaintiffs, seven theories are set out. However, only Theory No. which states “KOC, Cameco and the other Defendants knew the helicopters were unsafe, yet continued to use them;” is plead. Questions relating to the other six theories are clearly irrelevant as they are not raised by the pleadings. [14] With respect, the position of the defendants fails to distinguish between facts which must be plead with sufficient particularity to define the issues in controversy and to allow the opposing party to know the case to be met (Vide: Ducharme et al. v. Davies et al. (1983), 1983 CanLII 2310 (SK CA), 29 Sask. R. 54 at p. 68 (Sask. C.A.); Rieger et al. v. Burgess et al. (1988), 1988 CanLII 209 (SK CA), 66 Sask. R. at p. 20-21 (Sask. C.A.)), with right on examination for discovery to explore the pleadings of the opposing party, and the issues raised by such pleadings. [15] Rule 139 states: (1) Every pleading shall contain and contain only statement in summary Form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which the facts are to be proved. pleading shall be as brief as the nature of the case will permit. (2) Where necessary full particulars of any claim, or defence shall be stated in the pleading. It will be observed from the foregoing, that statement of claim is not supposed to set out evidence by which facts are to be proved, or theories which the party has on why the opposing party may have done what the facts allege. Once fact or allegation is placed in issue in the pleadings, questioning on examination for discovery directed at the probabilities of which position or facts are correct, as matter of logic will always occur within framework of one or more theories the party doing the questioning wishes to explore. [16] The only significance of the plaintiffs identifying the theories they may hold behind any questioning with respect to these issues, is that by disclosing the theory it is easier to determine whether such questioning is or could be logically relevant to fact or position in issue. In other words identifying theory in answer to an objection on the basis of relevance, is simply means of identifying the question as broadly relevant to the issue. [17] As noted in Cominco Ltd. v. Phillips Cables Ltd., 1987 CanLII 200 (SK CA), [1987] W.W.R. 562 (Sask. C.A.) at p. 567, wherein the court approved the statement of Haddad J.A. in Czuy v. Mitchell, 1976 ALTASCAD 161 (CanLII), [1976] W.W.R. 676 (Alta. C.A.), at p. 683: In my view, then, it is the scope of the examination for discovery with which we are concerned in this appeal. Wide latitude is permitted. The examination may be searching and exploratory. Questions on discovery are relevant so long as they touch “the matters in question” and fall within bounds that are reasonable. If the questions asked are relevant to the matters in issue or can possibly affect the issues between the parties if they are questions which may be permitted on cross-examination then they must be answered. In the same decision Cameron J.A. speaking on behalf of the court at p. 566: nan [T]he test of relevance is broader on discovery than at trial, and greater latitude is permitted at this stage of the proceedings than later. [18] The parameters of the broader relevance standard with respect to discovery were identified in follow-up decision to Cominco Ltd. v. Phillip Cables Ltd., supra, in the case of Steier v. Univ. Hosp. Bd., 1988 CanLII 215 (SK CA), [1988] W.W.R. 303 (Sask. C.A.) which related to disclosure of documents, and wherein Tallis J.A. stated at p. 306: nan Furthermore, the order, when viewed in the light of the pleadings, comports with the general principle that party is entitled to discovery of document or record if it directly or indirectly enables him to advance his own case or destroy that of his adversary, or may fairly lead to train of inquiry which may have either or these consequences: [authorities omitted]. [original emphasis] The foregoing statement applies equally to questions which may be put on examination for discovery. [19] It follows from the foregoing, that questioning directed at establishing facts from which the trier of fact might be asked to draw inferences is also permissible, as long as such inferences are logically relevant to facts or positions in issue. As noted per Doherty J.A. in the criminal case R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 50 C.R. (4th) 245 (Ont. C.A.) at p. 257: .Relevance as explained in these authorities requires determination of whether as matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A.” If it does then “Fact A” is relevant to “Fact B”. As long as “Fact B” is itself material fact in issue or is relevant to material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible. [20] In the context of the pleadings in this case, questions on the availability of alternative forms of transportation, the cost of such alternatives, the reliability or safety of such alternatives, the dependability of the alternatives, etc. is proper. Answers to all of these questions are logically relevant to the choice made by one or more of the defendants because they are factors one would expect any decision maker to take into account in deciding a specific form of transportation, and are also relevant to test the credibility of answers that may be provided by the corporate officers with respect to the reasons for the choices made. [21] Questions which relate to the topography of the area between the base camp and the mine site, and the location of the road between the two sites are relevant not only as background information to the scene of the accident, but also in support of the plaintiffs’ allegation that the helicopter shuttle service was inherently dangerous. [22] Questions directed at whether the project was over-budget at any particular time prior to the accident are relevant with respect to the issue of transportation. To the extent the plaintiffs’ wish to explore theory that cost was major consideration in the defendants’ continued use of Kyrgyzstan National Air as shuttle service, the issue of costs is relevant to the credibility of whatever other reasons may be offered by one or more of the defendants. Such questioning, no matter what answers are received, does not prove the airline was unsafe, but when combined with other evidence may lead to inferences, the plaintiffs’ will wish to ask the trier of fact to draw. However, allowing questions on whether the project was over-budget at any particular time, does not mean the plaintiffs’ are entitled to question the details of the budget, or why money was spent in certain areas as opposed to other areas. The budget itself is not relevant to any matters in issue. The only relevance is whether cost entered into one or more of the defendants’ choice to utilize Kyrgyzstan Air, and to that extent whether the budget was over or under is relevant. It follows that documents indicating the state of the budget compared to actuals in the period of time prior to the accident are also relevant and producible. [23] The officers of KOC and Cameco who were examined for discovery declined to answer whether liability insurance had been obtained by KOC or Cameco with respect to Kyrgyzstan Air helicopter flights, the details of any such insurance, and if it was obtained who paid the premiums. The defendants’ position is that the question of insurance is irrelevant. Normally whether party is insured or not is irrelevant to the issues of liability and quantum of damage. However, to the extent the questions posed by the plaintiffs are directed at who may have paid for such insurance, such question is directly relevant to paragraph 12 of the statement of claim set out, supra, in which the plaintiffs’ allege the bulk of responsibility in regard to the providing of transportation within Kyrgyzstan was to be performed by and was assumed by Cameco directly or through KOC. Insurance is normal concomitant of transportation, and is relevant if the issue is who may have arranged the transportation. The defendant corporations therefore are obliged to answer questions directed at whether insurance was obtained, and if so who arranged and paid for the same. Requiring the defendant corporations to answer such questions at this time does not mean the questions and answers are automatically admissible at trial. As noted in Cominco v. Phillip Cables Ltd., supra, at p. 568 referring the decision of McLellan J. in Ratner Reality Ltd. v. Sask. Telecommunications, [1981] Sask. D. 3628-01 (Sask. Q.B.) (affirmed Sask. C.A., 14th December 1981). With deference am of the opinion that such ruling should not be made on an application of this nature. It is possible that after having heard the answers to the questions put to the witnesses, counsel for the plaintiff will not attempt to introduce the evidence at trial. If he does, the trial judge will be in better position to judge the admissibility of the evidence in question, and if admissible, under what conditions it should be admitted or the weight to be attached to it. [24] KOC declined to answer question on why two Kyrgyzstan persons were appointed to the Board of Directors of KOC, which company is wholly owned subsidiary of Kumtor Mountain Corporation, which as noted above is wholly owned subsidiary of Cameco Gold, which in turn is wholly owned subsidiary of Cameco. The statement of claim and the statements of defence place in issue the relationship between the various subsidiary corporations particularly with respect to decisions affecting transportation. The purpose of having two Kyrgyzstan persons on the Board of Directors of KOC and the degree of involvement in activities of the Board of Directors of KOC is broadly relevant to the decision making of the Board with respect to issues of transportation, if indeed the Board considered such matters. The defence claim that such question is irrelevant to the pleadings is not accepted and the questions should be answered. [25] The proper officer examined on behalf of Cameco/KOC was instructed by counsel not to answer question whether there was an e-mail system in existence between Cameco and KOC and if so the date it became operational. Plaintiffs’ counsel point out that no e-mail documents were produced in the KOC statement as to documents. The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16 defines “record” as including any information that is recorded or stored by means of any device, including computer. Clearly if there is such record related to matters in issue in this law suit, the same is producible. question directed at when the e-mail system was established is not irrelevant for the simple reason that until such date is known it cannot be known whether such records are in existence during the relevant period of time. Questions related to the e-mail system are properly answerable. [26] The plaintiffs’ asked the defendant corporations to advise when survival gear was placed on board Kyrgyzstan Air helicopters. The witness replied such equipment was on board in September 1995, and counsel for the KOC took the position that when it was placed on board prior to September 1995 was not relevant. The plaintiffs’ have alleged the operations of Kyrgyzstan National Air were unsafe in many respects, and have alleged that various of the corporate defendants knew such operations were unsafe. When survival gear was placed on board the helicopters may not be relevant as to why the helicopter accident occurred, but it is relevant to the overall allegation of unsafe operation. Apparently consultant’s report recommended in April 1995 that such equipment be placed on board each helicopter, and the date this recommendation was implemented is clearly relevant with respect to the issue of unsafe operation, and possibly the defendants’ knowledge of the same. What, if any, inferences flow from the answer to the question is for the trier of fact to eventually determine. If the defendant, KOC is in a position to determine when such survival gear was placed on board the helicopters, the question should be answered. [27] The corporate officer examined on behalf of Cameco was asked to produce records as to when airfare tickets were reserved and purchased by Mr. Vernon Kiss and Mr. Bernard Michel for a meeting which took place in London on April 12, 1995. The response was that when the tickets were reserved or purchased was irrelevant to the issues raised in the pleadings. The refusal to answer this type of question indicates as do some of the other objections noted earlier, an attempt by counsel for the defendants’ to control the avenues of questioning by the solicitor for the plaintiffs. Counsel for the party conducting an examination for discovery is not required to justify why every particular question is asked simply because the reason for the same is not obvious to opposing counsel. As noted earlier herein the relationship between Cameco and its various corporate subsidiaries is in issue in the law suit. If the plaintiffs’ wish to know when the President of Cameco met with certain people or when he arranged to travel to certain locations with respect to the Kumtor Gold Project, such information is broadly relevant. These questions should be answered. [28] The foregoing remarks may not cover all objections made to questions by plaintiffs’ counsel, but hopefully supply sufficient guidance to allow the parties to resolve any additional objections not specifically dealt with. If not, leave is granted to reapply for direction. [29] Following the helicopter accident on October 4, 1995, the defendant corporations caused an investigation to be conducted by number of individuals and corporations. Litigation counsel for Cameco and KOC filed an affidavit stating he was retained to deal with potential litigation issues arising out of the accident on October 5, 1995, and thereafter he gave advice to retain certain consultants in order to assist him to evaluate the liability issues. The consultants retained were Mr. Issenman and Proav International Aviation, and Clintondale Aviation Inc. Litigation privilege is claimed with respect to these reports. Following the accident, general counsel for Cameco Corporation, who is an employee of Cameco, states he advised all relevant employees who might have information with respect to the accident that “all documentation prepared with respect to helicopter transportation by KOC or the subject helicopter crash was to be privileged and confidential for the instruction of either myself as counsel for Cameco or the instruction of litigation counsel for KOC.” considerable number of memoranda were generated by employees following this instruction. [30] The president of KOC also filed an affidavit stating that he understood from the time litigation counsel was retained on October 5, 1995 “. that all documentation, including internal reports, records of interviews, and documentation with respect to the helicopter transportation and the crash was to be confidential and to be made available to legal counsel for advice and instruction.” With respect to this material litigation privilege and solicitor client privilege is claimed. [31] Counsel for the plaintiffs’ takes the position that: (1) Many of the internal memoranda are not properly identified. (2) The claimed privilege is too broad, and effectively prevents him from ascertaining the names of potential witnesses, which may result in him being taken by surprise at trial. (3) Questions how memorandum from one employee to another can be claimed as privileged. (4) Questions if the predominant purpose with respect to all such memoranda and expert reports was contemplated litigation as opposed to the prevention of similar accident in the future. In this respect he asks the court to review the documents for which privilege is claimed. (5) In any event the report of Mr. Eric Rast who was the safety officer at the main camp site prior to the accident is not privileged because he was requested to prepare safety report prior to the accident, but did not get around to it until after the accident. [32] Before reviewing the law of privilege and how it applies in the factual situation outlined in the foregoing, it is worth noting that there was an official aircraft investigation report prepared with respect to the helicopter accident which has been made available to all parties. The conclusions of this investigation are at p. 13 of the report and state as follows: 3. CONCLUSIONS The crash of Mi-8 MTV helicopter No. EX 25179 occurred because the crew was flying in mountains below the safe altitude in poor weather conditions, and this resulted in the helicopter crashing into the mountainside and being completely destroyed. The crash was able to occur because of combination of several unfortunate factors: The crew had deviated from the approved route. The crew did not decide to turn back when they encountered weather worse than the minimum set for VFR flying. The crew improperly decided to drop below the safe altitude while flying in mountainous area out of visual contact with the ground. The weather forecast was wrong about the altitude of the lower edge of the clouds and the visibility, and this made it difficult for the crew to orient themselves visually. As noted earlier, Kyrgyzstan National Air has not filed an appearance in this law suit, and the assumption is it does not intend to defend its liability for the accident. This would not have been known at the time counsel was engaged to advise on litigation issues for KOC and Cameco. In any event, as subsequent events have shown, the other corporate defendants had reason to be concerned that they might be joined in an eventual law suit, and it was not unreasonable that they would wish to conduct their own investigation and retain their own experts under the guidance of litigation counsel. [33] The test in this province to determine if litigation privilege will attach to documents is that set out in Laxton Holdings Ltd. et al. v. Lloyd’s Non-Marine Underwriters et al. (1988), 1988 CanLII 5250 (SK CA), 72 Sask. R. 313 (Sask. C.A.) at p. 316 where Sherstobitoff J.A. noted: The law has come to us from Australia via Great Britain. The principle is stated by the Australian High Court in Grant v. Downs (1976), 135 C.L.R. 674, at p. 677; 11 A.L.R. 577: Having considered the decisions, the writings and the various aspects of the public interest which claim attention, have come to the conclusion that the Court should state the relevant principle as follows: document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection. [34] With the exception of the Rast Report the two parts of the foregoing test are satisfied on the facts of this matter. The affidavit material establishes that the purpose of retaining experts and requesting employees to provide their observations and comments was to assist litigation counsel with respect to anticipated litigation. It cannot be said the prospect of litigation was not real at the time bearing in mind the number of fatalities which occurred in the accident. Plaintiffs’ counsel’s suggestion there might have been an equally dominant purpose of avoiding repetition of such an accident in the future as was found in Waugh v. British Railways Board, [1979] nan All E.R. 1169 (English C.A.) might have more force and require further investigation if KOC or Cameco had been the transporter. One assumes that public carrier involved in an accident would wish to investigate the causes of the accident apart from the liability issues. There is no such reasoning applicable to KOC or Cameco in this matter. [35] There is no reason to doubt the veracity of the affidavits which were submitted in support of the litigation claim, and no basis has been established that would justify this court examining the documents in order to determine whether the predominant purpose of the investigation or expert reports was potential litigation. As noted per Armstrong J. in HMW-Bennett Wright Contractors Ltd. et al. v. BWV Investments Ltd. et al. (1992), 1992 CanLII 7882 (SK QB), 99 Sask. R. 282 (Sask. Q.B.) at p. 284, unless the party challenging the privilege shows some reason why the claim of privilege advanced in the statement as to documents is not conclusive, it will be. In this case the plaintiffs have failed to establish any such reason. [36] With respect to plaintiffs’ counsel’s questioning how memorandum from one employee to another can be claimed as privileged, the answer is as noted in the quote from Grant v. Downs, (1976) 135 C.L.R. 674 at p. 677 quoted by Sherstobitoff J.A. in Laxton Holdings v. Madill et al., supra, document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction whether particular or general, is was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation. nan If senior employees request other colleagues or more junior employees to produce information for the purposes of informing litigation counsel, the privilege attaches. [37] With respect to the privileged documents claimed in the statement as to documents, plaintiffs’ counsel requests the names of the persons who made the documents, and the name of the person to whom or for whom same were presented or prepared, along with the date of the document. Plaintiffs’ counsel is correct that the date of the document is required in order to determine whether it falls within the time frame for which privilege is claimed. The relevant defendants are therefore ordered to date any document for which privilege is claimed. [38] However, counsel’s request that the persons who prepared the document and received the document be named, is simply an attempt to investigate the investigation conducted by the defendants which I noted in Auchstaetter v. Froese, 1995 CanLII 5631 (SK QB), [1995] 4 W.W.R. 716 (Sask. Q.B.) is not permitted for the reasons outlined therein. The Saskatchewan Rules of Court do not require the names of expert witnesses who have prepared reports for which privilege is claimed, and the same rationale applies to non-expert privileged memoranda. All that is required is that the document be sufficiently identified to allow the opposing party to assess whether the claim for privilege should be challenged. As has been noted elsewhere; (Vide: International Minerals Chemical Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1989), 1989 CanLII 5052 (SK QB), 80 Sask. R. 251 (Sask. Q.B.) at p. 254) the facts and observations relevant to matters in issue contained in such documents are disclosable. It is true this procedure places the onus on the questioner to ask the right questions, but this obligation is inherent in the adversarial process. [39] If a person disclosed his or her pre-accident observations to someone in the subsequent investigation which is privileged, that person’s observations are disclosable. Plaintiffs’ counsel is entitled to ask, for example; Did any of your employees have safety concerns with the helicopter shuttle prior to the accident? If so, what concerns did they have? Did such persons communicate these observations to anyone else prior to the accident? If so, who? When? It is at this point, that if affirmative answers are forthcoming, plaintiffs’ counsel, on the facts of this case, is entitled to ask the name of the person making such observations. [40] With respect to disclosure of names of potential witnesses in trial, Soke Farm Equipment Ltd. v. New Holland of Canada Ltd., 1990 CanLII 7811 (SK CA), [1990] W.W.R. 762 (Sask.C.A.) provides discretion to the chamber judge as to when witness names may be ordered. consider this an appropriate case to require disclosure of the names of employees or agents of any of the named corporate defendants who to one or more of the defendants’ knowledge made factual observations or communicated such observations to others with respect to those matters in issue. [41] The accident occurred in remote part of the world. The present plaintiffs, being the legal representatives of the deceased persons, have no personal knowledge of events in Kyrgyzstan prior to the accident. Their only means of knowledge is through persons who were there. To the extent the defendants have knowledge of persons who made observations relevant to the matters in issue, the names of such persons must be disclosed if requested after the answer provided by the defendant corporate officer discloses relevant information emanating from that person. If any employees expressed safety concerns about the helicopter shuttle prior to the accident, these concerns, while matters of opinion only, are nevertheless disclosable. The analogy is “prior complaint”. One of the issues in the pleadings is whether the defendants knew or ought to have known the helicopter flights constituted an unusual danger. As noted in Milton Farms Ltd. et al. v. Dow Chemical Canada Inc. (1987), 1987 CanLII 4690 (SK QB), 63 Sask. R. 144 (Sask. Q.B.) any such concerns expressed are relevant to any one defendants’ knowledge with respect to this issue. [42] Finally, litigation privilege attaches to document only until such time as party determines to utilize the document at trial. As noted in Auchstaetter v. Froese, supra, under our Rules, party must disclose any such document prior to the pre-trial conference. Likewise the Rules provide that existing expert reports must be produced prior to pre-trial conference. The Rast Report [43] Mr. Rast had the title of Safety Superintendent with KOC in Kyrgyzstan. He was apparently requested to prepare report on safety equipment and survival gear on board the Kyrgyzstan Air helicopters prior to October 4, 1995 (pp. 361-362 of the Examination for Discovery of Len Homeniuk). At question 1692 Mr. Homeniuk stated: Mr. Rast was on turnaround. He was out for the 28 days prior to October 5th, that’s why the report wasn’t finished. believe he did the inspection few days prior to his departure from Kyrgyzstan, which would make it early September. And didn’t complete the report until after October 4th? The formal report, correct, yes. Counsel then went on to ask, and was given an undertaking to advise as to what facts and observations were obtained by Mr. Rast as result of his inspection. Mr. Homeniuk has since completed the undertaking, but plaintiffs’ counsel maintains he is entitled to the actual report on the basis that the predominant purpose of the report was not litigation as it had been requested prior to the accident. Plaintiffs’ counsel states the topic and report are relevant to the allegation that KOC and/or Cameco knew that Kyrgyzstan Air was an unsafe operator. [44] Defence counsel resists the request and relies on the Alberta Queen’s Bench decision of Pechiney Metal Service (Canada) Inc. et al. v. Suncor Inc. (1997), 203 A.R. 220, where the report in question had been requested by in house counsel following fire which had occurred at the Suncor Plant before litigation had been threatened but was not altogether unanticipated. By the time the report was prepared litigation had commenced. In that case, the learned chambers judge concluded at p. 225 that the dominant purpose underlying the creation of the report was its use in the litigation then underway. [45] There is not enough information before me to know whether the Rast Report should retain its privileged status. It is not known whether the Report which was prepared after litigation includes matters other than what Mr. Rast was requested to report on prior to the accident. As a result I feel I should review this Report before making a decision with respect to its privileged status. Defence counsel is requested to provide the Local Registrar with copy of this Report for my perusal. Confidentiality Agreements [46] The employment agreement signed by employees of KOC contained a confidentiality clause, the wording of which is not important in view of the ruling I propose to make, and the release documents signed by employees who terminated their employment with KOC also contained a clause in which the employee agreed not to disclose any proprietary information learned during the employment. Part of the definition of “proprietary” included “business information”. At least one former employee has indicated through his lawyer that he is prepared to talk to plaintiffs’ counsel but not without court ordering him to do so for fear of breaching the confidentiality agreements above referred to. [47] The employee in question was an employee of KOC at senior level in Kyrgyzstan. Counsel for KOC does not object to the court making an order, but claims he should be entitled to be present at any interview to ensure that questioning is related to the matters in issue, and to make sure plaintiffs’ counsel does not probe for privileged information. In other words, defendants’ counsel does not wish plaintiffs’ counsel questioning this person on what he knows about the investigation conducted by KOC and the experts retained by it. In view of the fact the employee has contracted not to disclose business information, which is a broad enough category to include privileged investigations carried out by the employer, it does seem reasonable to allow KOC’s counsel and Kilborn’s counsel to be present at any such interview. Defendant counsel’s presence will be solely to object, if necessary, to questions related to the witnesses knowledge of the post-accident investigation, and for no other reason. With the foregoing restriction there will be an order that information given by this employee to plaintiffs’ counsel with respect to the matters in issue does not amount to a breach of the confidentiality clause contained in the employment agreement or the release document signed by him. Clintondale Chronology of Events Pre-dating the Accident [48] The chronology document is privileged on the basis it represents the work product of a privileged investigation. While the material is factual, the choice of what is included and what is not included in the chronology is work product. This document remains privileged. Miscellaneous [49] Plaintiffs’ counsel has not established the necessary criteria pursuant to Rule 222(a) of the Rules of Court to justify examining for discovery the two former employees referred to in the material. With respect to one employee an interview is available as set out in the foregoing. With respect to the other employee the information requested has been forthcoming through undertakings. [50] The request to explore post-accident conduct and activity on the part of senior executives of one or more of the corporate defendants on examination for discovery is also dismissed. have indicated in the foregoing am satisfied the predominant purpose for such post conduct activity was the potential for litigation. If the defendant officers sought to establish alternate forms of transportation following the accident, it is understandable, but nevertheless irrelevant to the issues raised in the pleadings. Cameco/KOC Application [51] Defendants’ counsel’s request pursuant to Rule 142 to obtain from the plaintiffs particulars of the statutes and regulations referred to in the statement of claim including particulars of the sections allegedly breached, is proper. This information should be supplied by plaintiffs’ counsel within 45 days. [52] With respect to questions the plaintiffs’ representatives did not answer on discovery with respect to facts, knowledge, and position the same must be answered for the reasons outlined in the foregoing. Bearing in mind the number of plaintiffs, and the fact that plaintiffs’ counsel is the most informed person with respect to the information requested and the positions to be taken by the plaintiffs with respect to that information, it might be easier if counsel placed the answers on the record and thereafter had one or more of the plaintiffs’ representatives adopt such answers. [53] With respect to the names of potential witnesses, defence counsel are entitled to a reciprocal order to that made in favour of the plaintiffs. The names of persons who have provided facts or observations prior to the accident to counsel for the plaintiffs’ relevant to the issues are to be disclosed in the same circumstances outlined with respect to the order in favour of the plaintiffs. The Kilborn Application [54] To the extent applicable, the remarks made in the foregoing and the orders made in the foregoing with respect to disclosure and names of witnesses apply equally to Kilborn. [55] With respect to the question on whether the wife of a deceased person can be asked if in her opinion her husband would have boarded an aircraft he felt was unsafe, the question calls for a lay opinion, and the only matter the question is relevant to is the character of her late husband. Character evidence is limited to reputation in the community and does not allow for personal opinion. Apart from the issue of whether such character evidence would be admissible at trial, the question as framed is improper. [56] As success has been mixed in this matter, there will be no order as to costs. [57] Orders accordingly.
FIAT. One of the nine plaintiffs, legal representatives of passengers killed in a helicopter crash in 1995, and two defendants sought better testimonial and documentary discovery. Objections to questions or to the production of documents at the examinations for discovery fell under relevance and privilege. The plaintiffs alleged the defendants carried on a negligent and reckless shuttle service to and from the work site and that the Cameco group could not avoid liability by reason of having hired the Kyrgyzstan National Airline as an independent contractor. HELD: 1)Relevancy. The plaintiffs were entitled to question officers of the corporations and receive production of all documents touching on the issues of why the helicopter and the airline were selected; who made these decisions and whether KOC was the alter ego or agent for Cameco in this respect; whether the airline was unsafe; if so, should any of the defendants have known it was unsafe; was it inherently dangerous; and if so, could the defendants rely on the independent contractor defence. Questions relating to availability, cost and reliability of alternative forms of transportation were logically relevant. Questions as to topography were relevant as background information and supported the allegation the shuttle was inherently dangerous. Whether the project was over budget was relevant but the budget itself was not. Although questions directed at whether insurance was arranged and by whom were to be answered, the information is not automatically admissible at trial. Questions relating to the e-mail system and when survival gear was placed on board were properly answerable. Records as to when the tickets were reserved and purchased were to be produced. Counsel is not required to justify why every particular question is asked. The relationship between Cameco and it various subsidiaries was in issue and the information as to when the president met certain people was broadly relevant. Leave was granted to reapply for direction. 2)Privilege:(a)The defendants were ordered to date any document for which privilege was claimed. The document must be sufficiently identified to allow the opposing party to assess whether the claim for privilege should be challenged. (b)The request for names of the persons who prepared documents was simply an attempt to investigate the investigation and was not permitted. The Rules of Court do not require the names of expert witnesses who prepared reports for which privilege is claimed. The same rationale applies to non- expert privileged memoranda. (c)Pre-accident observations disclosed to someone in the subsequent privileged investigation are disclosable. The plaintiff is entitled to ask the name of any employee who expressed safety concerns about the shuttle prior to the accident. While matters of opinion only, such concerns are disclosable. A reciprocal order with respect to the names of potential witnesses was made in favour of the defendants. (d)Litigation privilege attaches only until such time as party determines to utilize the document at trial. Under the Rules of Court party must disclose any such document and produce any existing expert reports prior to the pre-trial conference. (e)The report on safety equipment and survival gear prepared by the KOC Safety Superintendent was to be reviewed by the court to assess whether or to what extent it was privileged. It was not known whether the Report prepared after litigation included matters other than what the Superintendent was requested to report on prior to the accident. (f)It was ordered that information given by a former senior level KOC employee would not amount to a breach of the confidentiality agreement. The agreement not to disclose any proprietary information, including business information, was broad enough to include privileged investigations carried out by the employer. Counsel for KOC and Kilborn were permitted to be present at the interview. (g)The chronology document was privileged on the basis it represented the product of a privileged investigation. 3)The necessary criteria under Rule 222(a) was not established to justify examining for discovery the two former employees. The request to explore post accident conduct of senior executives was dismissed. Seeking to establish alternate forms of transportation was irrelevant to the issues. 4)Particulars of the statutes and regulations referred to in the statement of claim, sought under Rule 142, were to be supplied within 45 days. 5)The question asking the spouse if in her opinion her husband would have boarded an aircraft he felt was unsafe was improper as framed. The question was relevant only to character. Character evidence is limited to reputation in the community and does not allow for personal opinion. 6)There was no order as to costs as success was mixed.