The Ontario Superior Court of Justice recently confirmed that documents and information prepared in anticipation of litigation in a tort claim may be protected by litigation privilege. In Parweez v. Manbauman, 2026 ONSC 2456, the Court held that a defendant’s pre-litigation accident investigation materials relating to a motor vehicle accident were privileged and did not have to be produced.
The case arose from an October 24, 2018 motor vehicle accident in which the defendant, Mr. Manbauman, was driving a rented U-Haul truck when he rear-ended the plaintiff’s vehicle. What initially appeared to be a straightforward MVA case became more complicated after discovery evidence suggested the collision may have been staged and that false information had been provided after the accident.
Discovery Evidence Changed the Case
At his discovery on October 29, 2024, the defendant testified that he knew the plaintiff and his brother before the accident. He also said he had been promised $200 to drive the U-Haul truck and admitted that he lied when he completed the accident report. That evidence led to a major shift in the litigation, including proposed amendments alleging fraud and a staged collision.
U-Haul, which had been defending both itself and Mr. Manbauman up to that point, later sought to amend its defence to plead that the collision was intentionally staged by the plaintiff and his brother in order to obtain insurance proceeds. Mr. Manbauman also sought to amend his defence to advance a similar theory.
Litigation Privilege Applied
One of the plaintiff’s remaining refusals sought production of U-Haul’s own investigation materials created before the litigation commenced. The plaintiff argued those records could shed light on liability, damages, and witness evidence. U-Haul refused on the basis of litigation privilege.
The Court accepted that position. Justice Josefo held that once the accident occurred and U-Haul knew about it and retained an outside adjuster to investigate, the company was already in an adversarial posture and the dominant purpose of the investigation was contemplated litigation. The Court compared the situation to an insurer’s claims investigation in a tort case, noting that such materials are generally created because litigation is expected.
The Court relied heavily on Panetta v. Retrocom et al., 2013 ONSC 2386, where Justice Quinn explained that in third-party tort claims, there is no “preliminary investigative phase” in which privilege does not attach to adjuster notes, reports, and files. The Court found that reasoning persuasive and applied it to the present case.
Why the Ruling Matters
The decision is a useful reminder that in tort and motor vehicle cases, litigation privilege may attach very early, particularly where a defendant or its agent is investigating the incident in anticipation of a claim. The Court also confirmed that a party should not be forced to reveal litigation strategy, settlement thinking, or other privileged material simply because the documents may be relevant to the opposing side.
For insurers and defendants, the ruling reinforces the importance of treating early claims handling and post-accident investigation as potentially privileged where litigation is reasonably anticipated. For plaintiffs, it underscores the limits on pre-litigation production when a defendant can show the materials were created for the dominant purpose of anticipated litigation.
At Flaherty McCarthy LLP, we represent clients in a wide range of litigation matters, including motor vehicle claims, insurance disputes, and privilege issues. Contact us to discuss how we can assist with your risk management and litigation needs.
