|Delta School District #37, questions about the disclosure of notes made about a slip and fall accident COURT OF APPEAL FOR BRITISH COLUMBIA|
Oral Reasons for Judgment
 LOWRY J.A.: In November 2006, Shaji Mathew slipped and fell on some ice at a school in Delta School District No. 37. He consulted solicitors in June and commenced an action in September 2007. In June 2009, he applied before Master Baker for the disclosure of notes concerning his accident, prepared by three employees of the District. The District claimed they were privileged. The master found the privilege claimed had not been made out and ordered the documents disclosed. The District appealed. Mr. Justice Leask concluded the master had been clearly wrong and, on a fresh assessment of the evidence, found the notes of two of the employees to be privileged and varied the master’s order accordingly. Both Mr. Mathew and the District sought and were granted leave to appeal. There are now two appeals: Mr. Mathew contends the judge erred and seeks to have the master’s order restored; the District contends the judge and the master erred in not holding the notes of all three employees to be privileged.
 The first question is whether the judge erred in concluding the master was clearly wrong in the determination he made.
 In Hamalainen (Committee of) v. Sippola,  2 W.W.R. 132, 62 B.C.L.R. (2d) 254 (C.A.), this Court stated and discussed what a litigant must establish in making out a claim to what is referred to as litigation privilege as it pertains to documents: a document will be subject to the privilege if, when it was made, there was a reasonable prospect of litigation and the dominant purpose for which it was made was to obtain legal advice or assist in the conduct of litigation. Before the master, the first of the requirements was accepted. He concluded the District had not established the second.
 The employees who made the notes were the school’s principal, a teaching assistant, and the custodial lead hand. The teaching assistant was the only one of the three to see Mr. Mathew fall. The school’s vice-principal asked her to write down what she saw and she deposes she would not have done so had she not been asked. All of the notes were written within a few days of the accident. The principal placed his notes and those written by the teaching assistant in a file with what is referred to as an incident report and some related e-mails. They remained there until the spring of 2009 when the principal noticed he had them and gave them to the District’s counsel. The custodial lead hand retained his notes for some time and ultimately gave them to an adjuster who was appointed to investigate the accident, presumably on behalf of the District’s insurers.
 Each of the principal, the vice-principal, and the custodial lead hand say they expected this incident would lead to a lawsuit and, for that reason, the notes were prepared. The principal and vice-principal specifically say the notes were prepared for future use, or to assist, in litigation.
 In reasoning that the evidence did not establish the dominant purpose to have been to assist in the conduct of litigation, the master said:
 It is interesting to me though that none of these witnesses reflect any other purpose in preparing the records. They do not -- they do not say, “well, I thought somebody might want to know what happened and I thought maybe I should recollect or keep these things, preserved by recollection”. If they say that, I apologize for not noting it, but it seems to me that to accept their perspective on this is to completely ignore or accept that -- to ignore the investigatory stage of these things. The notes that were taken are almost simultaneous and certainly in extreme proximity to the event itself, and to accept that the dominant purpose was litigation is to accept that in practical terms there really is no investigatory stage, and I find that an extremely difficult conclusion, an unlikely conclusion in this particular case. These are responsible, professional people working within a very structured environment with I think a relatively clear chain of command, and it would be very surprising if they did not take as part of their responsibilities reporting of events to people up the chain....
 The master attached significance to there being no unusual aspect to Mr. Mathew’s accident that would suggest litigation would necessarily follow and then concluded as follows:
 So I am not satisfied in the circumstance that the dominant purpose of the preparation of these notes [was] litigation notwithstanding, as I say the background of the various parties, I accept that a dual purpose was served, that they contemplated the possibility of litigation, but I also accept that it was at the very least a preliminary investigatory stage, it was being served by the preparation and preservation of their views in written form. I am going to direct therefore the production of the notes.
 The judge found the master to have been clearly wrong because he ignored some of the evidence. The affidavits sworn by the principal, the vice-principal, and the custodial lead hand all contain essentially the same statement: there were no policies or procedures that required any of the notes to be made. The judge said:
 I am satisfied that the master was clearly wrong in ignoring the passages in the various affidavits denying any administrative necessity for making notes for “reporting” purposes and for making a contrary finding with no evidentiary basis. ...
 In my view, however, the master said no more than that these were responsible people who obviously worked in a structured environment and who must have considered they might be asked what they knew about the accident by their superiors in the school district. He did not say that, contrary to the evidence, they were required to make the notes or to report on the accident to anyone, but only that it would be hard to accept they did not consider their responsibilities included reporting, or it might better be said being able to report, to their superiors in the District about an incident where, to their knowledge, someone was seriously injured on school grounds. None of the three said otherwise.
 I do not consider the master can be said to have been “clearly wrong”. The judge did err in concluding that he was. The master applied the correct legal principles and it was for him to make a factual finding based on the evidence he accepted as to whether the District had established that the dominant purpose of the notes being prepared was to obtain legal advice or assist in the conduct of litigation. He found the notes were made at the investigatory stage, albeit when litigation could be expected. It appears to me that in his view the notes served a dual purpose as a record of the observations made: to facilitate reporting on the incident if required and to assist in the conduct of litigation should it ensue. The master was unable to conclude the dominant purpose was such as gave rise to the privilege claimed.
 The investigatory stage to which the master referred is well recognized in the authorities. In Hamalainen at para. 24, the following was quoted from a speech in Waugh v. British Railways Board,  A.C. 521 at 541, attributing it to what Lord Denning had said in that case:
If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.
 The investigatory stage was discussed in Hamalainen as follows:
 Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.
 It was, on the evidence, open to the master to regard the notes as being made in the investigatory stage as opposed to the later litigation stage. They were made directly following Mr. Mathew’s accident. I recognize it may be argued that, in the circumstances, there was little in the way of an investigatory stage here. But that is a matter to be determined on the peculiar facts of each case and I am unable to accept that the evidence foreclosed the significance the master appears to have attached to the notes being made as quickly as they were in relation to the incident.
 It follows that I would allow Mr. Mathew’s appeal, set aside the judge’s order, and restore the master’s order. I would dismiss the District’s appeal.
 PROWSE J.A.: I agree.
 FRANKEL J.A.: I agree
 PROWSE J.A.: The appeal of Mr. Mathew is allowed. The order of Mr. Justice Leask is set aside and the order of the master restored. The appeal of the District is dismissed.
(discussion re. costs)
 PROWSE J.A.: The appellant Mathew is entitled to the costs of the appeal before Mr. Justice Leask in any event of the cause, and also entitled to the costs in this Court.
“The Honourable Mr. Justice Lowry”
COURT OF APPEAL FOR BRITISH COLUMBIA
Docket: CA037543; CA037554
Delta School District #37
Delta School District #37
On appeal from: Supreme Court of British Columbia, September 14, 2009