PRIVILEGE ATTACHING TO CLAIMS ADJUSTERS' REPORTS: THE QUEBEC EXCEPTION

Abstract

This article reviews Québec and Canadian law on privilege with regards to the work product of claims adjusters. The author focuses specifically on the unique situation that prevails in Québec, the only jurisdiction in Canada with a blanket rule deeming adjusters’reports to be privileged as a matter of course. After a brief overview of the law of privilege and its rationale, the article demonstrates how the modern approach to litigation privilege has led courts throughout Canada to move away from earlier jurisprudence that prevented disclosure of claims adjusters reports and have embraced the “dominant purpose” test to determine on a case by case basis whether a report is indeed privileged. The author argues in favour of the adoption of this same rule by Québec courts, considering that the principles governing litigation privilege in Québec are the same as in Canada’s common law jurisdictions and that the “dominant purpose” test is applied in Québec in every area except insurance law.