New Brunswick’s Appeal Court considers (twice) an insurer’s quest for RCMP documents in a home fire case

New Brunswick’s Court of Appeal has now been consulted twice about a case in which State Farm is seeking production of RCMP documents in a home fire case.
State Farm says the RCMP notes it is seeking are relevant in determining whether or not a house had been vacant for 30 days prior to burning down.
Karen Bennett sought a claim for insurance coverage from State Farm after a fire loss at her home in June 2008. State Farm said coverage was excluded because the house had been vacant for more than 30 consecutive days.
The RCMP opened a file in May 2008 on a break-and-enter that Bennett reported at her home. Also, immediately after the fire, it conducted an investigation into the fire and no charges were laid.
The insurer asked for production of the RCMP’s notes from both the break-and-enter and the fire investigation, saying they would be relevant to the issue of whether the house had been vacant for more than 30 days.
The RCMP indicated a willingness to turn over the documents and “requested” the court to allow the insurer’s motion, to which Bennett objected.
A lower court granted the order, but the Court of Appeal of New Brunswick overturned the ruling, effectively saying that the order of the lower court was “overreaching.”
The Court of Appeal of New Brunswick ruled that the New Brunswick Court of Queen’s Bench had to be very specific about the content of the documents to be disclosed, but the language of the lower court’s order was too broad.
Also, the Court of Appeal found, State Farm had not been able to demonstrate the “necessity” of having the RCMP turn over its documents for its case.
Now the RCMP documents are in the possession of Bennett. And so, in July 2011, State Farm asked the court for an order requiring Bennett to produce the RCMP materials.
Bennett claimed solicitor-client privilege over the documents, which the New Brunswick Court of the Queen’s Bench denied.
But the Court of Appeal on Nov. 18 allowed Bennett to appeal the decision on limited grounds, one of which is whether “the motion judge failed to consider that documents from the Crown brief or police file should not be used for parasitic or collateral purposes.”
The appeal has not yet been heard.
Background to the case can be found at:
http://canlii.ca/en/nb/nbca/doc/2011/2011nbca27/2011nbca27.html
and
http://canlii.ca/en/nb/nbqb/doc/2011/2011nbqb273/2011nbqb273.html