Carfra Lawton LLP | Victoria BC

Incident report not subject to litigation privilege

In Smith v Air Canada 2014 BCSC 1648 Madam Justice Gropper (on appeal) held an incident report created by Air Canada after a passenger was injured on a flight was not privileged. The plaintiff was injured when a bag fell on her after a fellow passenger failed to store it securely in the overhead compartment. A service director on the flight prepared an incident report shortly after the injuries occurred. Air Canada presented evidence that the incident report was prepared for Air Canada’s claims department in anticipation of a lawsuit and not for the purpose of just documenting the incident. In spite of Air Canada’s assertion, the court assessed the circumstances at the time the report was written and concluded that it was not reasonable to accept Air Canada’s position that the incident report was drafted in contemplation of litigation. The factors the court considered included the time between the incident and the preparation of the report, the absence of counsel, and the gravity and nature of the injuries.

Case summary by: Chelsea Lott