Karen Bennett’s house was destroyed by fire. State Farm, her insurer, denied coverage on the grounds that the house had been left vacant for more than 30 days and wanted to obtain copies of police reports it believed would confirm that position. Bennett’s affidavit of documents in her litigation against the insurer revealed that she had obtained police reports through an access-to-information request. She asserted that she did not have to disclose the reports because they were protected by litigation and statutory privilege, as well as public interest immunity. The motion judge ordered disclosure.

The New Brunswick Court of Appeal agreed that there was no reason to withhold the documents: Bennett v State Farm Fire & Casualty Co, 2013 NBCA 4. The principles governing the production of a Crown brief did not apply because the records were not obtained under the disclosure obligations set out in R v Stinchcombe, [1991] 3 SCR 326, but instead through an ATI process with its own screening rules. Any public interest immunity applied to the police or the attorney general, not Ms Bennett, and disclosure of the reports would not damage the functions of government. The reports had been screened and redacted before being unconditionally released to her. This put her in the position of having documents which were relevant to the litigation against State Farm, and it would be unfair not to let the latter see them as well. Any potential negative effect on the confidentiality of police investigations was adequately protected by the screening mechanisms under the New Brunswick privacy and ATI statutes. Bennett’s claim of litigation privilege also failed: the reports (not privileged to start with) were not somehow cloaked with privilege merely because counsel had asked for them and put them in the brief for trial. To make the reports available to State Farm would not be to use police reports for a ‘parasitic or collateral’ purpose in civil litigation; the documents were relevant to that litigation and properly producible.