The Applicants, Mr. and Mrs. Stratt (“the Stratts”), appealed a Master’s Decision dismissing their Application for an Order compelling responses to Undertakings taken under advisement. The Master ruled that the records that the Respondent, SGI Canada Insurance Services (“SGI”), refused to produce were subject to litigation privilege. The issue on Appeal was whether the Master had erred and whether the documents should be produced.

Kirker J. confirmed that Rule 6.14(3) states that an Appeal of a Master’s Decision is an Appeal on the record but that additional evidence may be considered where it is relevant and material in the opinion of the Judge. Moreover, Kirker J. stated that Rule 5.11(1)(b) allows the Court to order a document to be produced if the Court is satisfied that privilege has been improperly claimed over the document.

The Court ruled that, with one exception, the subject documents had been created for the dominant purpose of litigation and were therefore privileged. Moreover, Kirker J. rejected the Stratts’ argument that the privilege expired after the conclusion of a Dispute Resolution Process (“DRP”) that the parties engaged in. Her Ladyship stated that the positions of the parties and the issues in dispute were still essentially the same notwithstanding the conclusion of the DRP, and they were now engaged in live litigation. Therefore, the privilege endured.

Kirker J. ordered SGI to produce some recorded phone conversations between SGI and the Stratts as these were not created for the dominant purpose of litigation. However, the Appeal of the Master’s Decision was dismissed in all other respects.