ICBC Law

If parties to a lawsuit can’t agree which disbursements were reasonably incurred they can ask the Court to decide the issue.  As recently discussed, it is important for parties to bring appropriate evidence to Court to justify their disbursements.  This was further addressed in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.

In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC motor vehicle collision.  In the course of the lawsuit ICBC made a formal offer to settle the claim for $75,000.   About 16 months later the Plaintiff accepted the offer.  The formal offer had a declining value reducing its amount by ICBC’s ‘costs and disbursements‘ incurred following the delivery of the offer.

After the offer was accpeted ICBC produced a bill of costs totalling almost $28,000.   Once of the biggest disbursements included in this total were the accounts of a private investigator who was retained to conduct video surveillance of the Plaintiff.  These accounts totalled almost $20,000.

The Plaintiff argued that ICBC’s disbursements were unreasoble.  Eventually the BC Supreme Court was asked to decide the issue.  Master Keighley sided largely with the Plaintiff and reduced ICBC’s account to just over $6,000.  In doing so the Court provided the following reasons refusing the disbursements related to the private investigator and addressing the need for parties to come to Court with adequate evidence:

[11]         As a general proposition, the party claiming reimbursement for sums expended in the course of litigation bears the burden of establishing the reasonableness of the charges claimed.

[12]         I have suffered, on this assessment, from a paucity of evidence offered by the defendants in support of the disbursement claims. With respect to the Lanki Investigations Inc. invoices I have no evidence before me as to the necessity for or results of these investigations. I am told by counsel that the investigations, which consisted largely of video surveillance, were instrumental in resolving this claim. I have no evidence as to this effect, however, only records of the amount of time spent by various individuals. I note that the surveillance took place after the delivery of the offer to settle and in the last two weeks prior to trial. Mr. Smith says that the surveillance materials were of little value and that the case settled when it did because of a clarification in the law of costs and a change in his client’s employment. The former, he says, meant that his client would potentially net more money as a result of accepting the offer than he had previously anticipated, and the second meant a substantial limitation of his claim for loss of future earnings. These details are confirmed to some extent by the plaintiff’s affidavit of February 6, 2009. In the circumstances, while I am not prepared to say that the defendants’ expenses for surveillance were entirely unreasonable, I am compelled by the tariff item and the case law to allow them only if settlement was achieved as a result of the services provided. In the absence of any evidence from the defendants on this point, I cannot do so. The Lanki accounts are disallowed.

As previously discussed, the new BC Civil Rules have changed the test of document production in the pre-trial discovery process.  The test has been narrowed from documents “relating to every matter in question in the action“ to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.  In addition to this the Court must take the concept of ‘proportionality‘ into account when considering an order to produce third party records.

Reasons for judgement were released considering this narrower obligation in the context of an ICBC claim.

In today’s case (Tai v. Lam) the Plaintiff was involved in a 2006 motor vehicle collision.  The Plaintiff was injured and claimed damages.  The Defendant asked that the Plaintiff produce his bank statements from the date of the accident onward in order to “defend against (the Plaintiff’s) claim for loss of earning capacity”  The Plaintiff refused to provide these and a motion was brought seeking production.    Master Baker dismissed the motion and made the following useful comments about document disclosure obligations under the new rules and the concept of proportionality:

[5]             I am not going to make the order sought.  I agree entirely with Mr. Bolda’s view of this, which is that it is essentially one production too far, that the information and details sought goes beyond what is reasonable, even on a redacted basis.  To ask that all the bank statements be produced is a broad, broad sweep.

[6]             Sitting here listening, it struck me, it is as if a party who commences proceedings and says, “look, I have been injured and I have suffered financial losses” is inviting some kind of a Full Monty disclosure, that they are expected to produce all financial information they might ever have out there.  Even if it is suggested or offered today that that be done on a redacted basis, it is still, in my respectful view, a requirement for production that is excessive.

[7]             It certainly raises big issues about privacy and if one says, “well, redaction would fix that”, what does it take for counsel to sit down and patiently, carefully redact their client’s bank records for four and a half years?  If that is not a question of confidentiality and privacy, it is a question of proportionality, which is just as concerning to me today as the other issues.

[8]             The banking records.  I am also persuaded by Mr. Bolda’s argument, and a  common position taken today, that the judgment will be one of assessment, not calculation, that the trial judge will have multiple facets to consider and amongst them the gross income.  And while it is for the defence to present and structure its case as it wishes, it seems to me that if it successfully attacks any of these claims for expenses it can only increase Mr. Tai’s income, and I cannot see the value in that perspective.

[9]             I know that until recently the standard in this province was Peruvian Guano and locally Dufault v. Stevens, but that standard has changed.  There has to be a greater nexus and justification for the production of the documents in a case, and I am satisfied that that standard has not been met here today, so that the application is dismissed.

If you’re involved in a BC motor vehicle collision and have your injuries treated by a “medical practitioner” ICBC can compel the medical practitioner to provide them with a report documenting your injuries.  This is so even if you are not insured with ICBC and even if you don’t consent.  Reasons for judgement were published this week on the BC Supreme Court’s website discussing this area of law.

In today’s case (Pearlman v. ICBC) the Plaintiff was involved in collision in 2004.  He was insured with a carrier from Washington State.  The other motorist was insured with ICBC.   The Plaintiff initially contacted ICBC and signed an authorization permitting ICBC to obtain medical information relating to his injuries.  About a year later the Plaintiff hired a lawyer and cancelled the authorization.  Despite this ICBC contacted a physician who treated the Plaintiff after the accident (Dr. Lubin) and requested “a narrative medical report“.

Ultimately the Plaintiff’s lawsuit against the other motorist was dismissed at trial.  The Plaintiff then sued Dr. Lubin arguing that the physician breached the Plaintiff’s confidence by providing ICBC a medical report when the Plaintiff withdrew his consent for ICBC to obtain his medical information.  The Plaintiff also sued ICBC directly arguing that ICBC improperly requested the medico-legal report.  Both of these lawsuits were dismissed with the BC Supreme Court finding that whether or not ICBC has written authority, section 28 of the Insurance (Vehicle) Act permits ICBC to obtain reports from treating medical practitioners and that practitioners have “no legal choice” other than to comply with such requests.

In the claim against Dr. Lubin Madam Justice Morrison stated as follows about the mandatory nature of section 28 of the Insurance (Vehicle) Act:

[] Dr. Lubin was obligated to provide ICBC with the report as requested.  Dr. Lubin had no legal choice other than to comply with the mandatory request to submit a medical legal report to ICBC.  This did not amount to a breach of confidentiality as alleged by the plaintiff.

In the claim against ICBC Mr. Justice Smith found that it would be an ‘abuse of process‘ to permit the Jury in that action to make findings contrary to Madam Justice Morrison’s previous decision.  Mr. Justice Smith held as follows:

[14]         The plaintiff also sued Dr. Lubin, alleging a number of causes of action, including negligence and breach of confidence.  That action went to trial before Madam Justice Morrison and was dismissed in reasons for judgment dated March 11, 2009.  Madam Justice Morrison held that when ICBC requested the report, Dr. Lubin was obliged to provide it.  She found that obligation arose out of s. 28 of the Insurance (Vehicle) Act, which reads:

If any of the following persons attends to, diagnoses, treats or is consulted by a person injured in a motor vehicle accident in British Columbia, he or she must, whenever the corporation requests, provide the corporation, as soon as reasonably practicable, with a report of the injuries and their diagnosis and treatment and a prognosis, in the form the corporation prescribes …

The persons then listed include a medical practitioner….

[20] Madam Justice Morrison’s findings regarding Dr. Lubin’s conduct were made on the same or very similar evidence that is before the Court in this case, and I conclude it would indeed be an abuse of process to invite this jury to make contrary findings.

The Plaintiff appealed Madam Justice Morrison’s decision.  In the course of the Appeal the Plaintiff was ordered to post security for costs in the event he lost the appeal.  In reviewing this decision the BC Court of Appeal made the following comments on the matter of ICBC ordering reports not in the ‘prescribed form‘:

[19] Even if Mr. Pearlman were to succeed in his argument that the judge erred in finding that Dr. Lubin was required to provide the report under statute – I note, in that regard, that the report was not prepared in form CL 19, which is ICBC’s prescribed form under s. 28 of theInsurance (Vehicle) Act) – it is difficult to see how his appeal could succeed given the trial judge’s clear finding that Dr. Lubin did not cause him any loss.

These decisions illustrate ICBC’s power to get medical reports even absent patient consent.  It can be argued that the Court of Appeal’s comments can leave individuals with little recourse if ICBC goes further than ordering a CL-19 and in fact obtains a full medico-legal report.  A solution, at least insofar as tort claims are concerned, is for plaintiffs to bring this power to the Courts attention when ICBC insured defendants try to obtain independent medical exams in order to ‘level the playing field‘ under the BC Supreme Court Rules.

(Update: The below decision was upheld by the BC Court of Appeal in December, 2011)

As I’ve previously written, the BC Privacy Act allows individuals to sue where their privacy is violated “wilfully and without a claim of right” by another person.  This powerful law permits such lawsuits to succeed even where a Plaintiff cannot prove actual damages.

Despite the strength of the BC Privacy Act, relatively few reported decisions have been released applying this law in the years that it has been on the books.  Useful reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying this law in combination with a claim for damages for defamation.

In today’s case (Nesbitt v. Neufeld) the Plaintiff and Defendant were involved in “protracted family litigation” During the course of that litigation one of the parties “resorted to out-of-court publications that are plainly private to the litigants“.  The reasons for judgement are worth reviewing in full for the details but these apparently included “private communications…released to third parties and made available to the public (including)…a YouTube video…a website…a Facebook Page…(and) a letter to the Ministry of Child and Family Development”

The victim sued arguing she was defamed and further that her privacy rights were unreasonably violated.  Mr. Justice Crawford agreed and awarded the Plaintiff $40,000 in damages.   In reaching this award the Court provided the following reasons:

[89]         The B.C. Court of Appeal in Davis v. McArthur (1970), 17 D.L.R. (3d) 760, [1970] B.C.J. No. 664 (QL) (C.A.), said this in the course of its judgment at para. 9 of QL:

To constitute the tort [of violation of privacy] the violation must be committed “wilfully and without a claim of right”. The nature and degree of privacy to which the person is entitled in any situation or in relation to any matter is fully set out in s-s (2) [now ss. 1(2) and 1(3)] and, in my opinion, no useful purpose would be served in attempting to elaborate upon the words contained therein. Regard must be had to the provisions of the subsection as a whole. It is plain that whether there has been a violation of privacy of another must be decided on the particular facts of each case. As the learned Judge below said in his reasons for judgment [10 D.L.R. (3d) 250 at p. 255, 72 W.W.R. 69]: “It is necessary to consider all of the circumstances before determining ‘The nature and degree of privacy to which a person is entitled,’ s. 2(2) [now ss. 1(2) and 1(3)].

[90]         In Hollinsworth v. BCTV, a division of Westcom T.V. Group Ltd. (1999), 59 B.C.L.R. (3d) 121, 113 B.C.A.C. 304, the Court of Appeal defined the term “wilfully” to mean “an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person” (at para. 29 of B.C.L.R.).

[91]         Dr. Nesbitt’s use of the private correspondence between Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld’s privacy. The communications were extremely personal…

[96] Had Dr. Nesbitt restricted his communications within the confines of the family court litigation where he had counsel to advise him of the bounds of legitimate expression of his opinions, the issues before me in this proceeding might not have arisen. I say “might” because I note that certain publications of Dr. Nesbitt prompted an application to the family court that resulted in a consent order made on September 8, 2008 before Master Caldwell restraining Dr. Nesbitt from making further improper communications…

[102] The reality is that Dr. Nesbitt has taken his battle with Ms. Neufeld over custody and access far outside the ordinary confines of the family court litigation. Even worse his lack of appreciation for the proper boundaries of communication of his opinions has spread to besmirch persons that are friends of Ms. Neufeld.

[103] Dr. Nesbitt disclosed matters private to the parties in a manner that defamed Ms. Neufeld; he is the publisher of the defamatory materials at issue.

[104] For breach of privacy and the defamation aspects of the defendant’s claim, I set that amount at $40,000.

[105] I only limit the defamation damages due to the fact that while it is plainly publication to the world in the sense the defamatory materials were put on the Internet, Ms. Neufeld indicated there has been little personal or professional backlash. Indeed, if I read between the lines, the communications to the Rotary Club, the Ministry and the Child’s doctor were treated with the disdain they deserved.

The Court went on to award the victim ’special costs’ in order to rebuke the other parties ‘reprehensible conduct‘.  The ease created by social media platforms in allowing individuals to quickly publish material to the Internet will likely make claims such as these more prevalent in the years to come.  With this, damage awards for privacy violations will hopefully be shaped into predictable ranges.

(Note: The Decision discussed below was overturned by the BC Court of Appeal on August 25, 2011)

As I’ve previously written, the Rules of Court require parties to a BC Supreme Court Civil Lawsuit to disclose relevant documents to opposing parties.  Some documents are privileged and need not be exchanged but their existence needs to be disclosed and these documents need to be described “in a manner that, without revealing informaiton that is privileged, will enabel other parties to assess the validity of the claim of privilege“.  Failure to do so can result in exclusion of the documents from trial.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.

In today’s case (Houston v. Kine) the Plaintiff was injured in a 2006 motor vehicle collision.  The Defendant admitted responsibility for the crash.  The Plaintiff sustained various  injuries including a major depressive disorder, pain disorder, anxiety disorder and PTSD following the collision.  Madam Justice Gropper found that the collision was responsible for these injuries and assessed the Plaintiff’s damages at $525,000.

There was a 5 month break from the beginning of the trial to its conclusion.  During this break ICBC undertook surveillance of the Plaintiff over two periods of time.  The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court.  When they attempted to put the video into evidence the Plaintiff objected.  Madam Justice Gropper sided with the Plaintiff and held that the evidence should not be admitted.  In reaching this conclusion the Court provided the following helpful reasons:

[11] The burden on the party seeking to tender the undisclosed document is to establish to the Court’s satisfaction a reasonable explanation for the failure to disclose. As Henderson J. stated inCarol v. Gabriel (1997), 14 C.P.C. (4th) 376, 75 A.C.W.S. (3d) 858:

[9]        A party tendering a previously undisclosed document must establish to the court’s satisfaction a justification for the failure to abide by Rule 26(14). The question of whether the opposite party will be prejudiced by the admission of the document is always relevant but is not, in and of itself, decisive. Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect any prejudice to result.

[12] Here, the explanation for the failure to disclose is that the videos are not documents and they were never in the defendants’ possession or control. Rather, these videos and the accompanying reports fall clearly within the solicitor’s brief.

[13] The defendants’ position that it is sufficient that the videos and background materials were disclosed in March 2010, before the recommencement of the trial does not address the requirement of the Rule in 23(13) that the disclosure be “forthwith.” Not disclosing, as a matter of strategy, is not a satisfactory explanation to address the “forthwith” requirement.

[14] It is therefore my view that the videos have not been disclosed in accordance with R. 26(13) and I must therefore consider whether I ought to exercise my discretion to allow the Mexico video into evidence in accordance with R. 26(14).

[15] The factors to be considered are described by the Court of Appeal in Stone v. Ellerman, 2009 BCCA 294; 273 B.C.A.C. 126; [2009] 9 W.W.R. 385; 71 C.P.C. (6th) 25; 92 B.C.L.R. (4th) 203; 2009 CarswellBC 1633, at paras. 30 and 31. They are:

1.         prejudice to the party, in this case the plaintiff;

2.         whether there was a reasonable explanation for the other party’s failure to disclose;

3.         whether excluding the document would prevent a determination of the issue on the merits; and

4.         whether in the circumstances of the case the ends of justice require that the document be admitted.

[16] Addressing the prejudice to the plaintiff, it is difficult for me to assess the prejudice versus the probative value issue as I have not seen the videos and I have not reviewed the investigators’ notes of the video. I note in addressing this factor that there were hours of video recorded and the defendants’ counsel has provided a summary of what is contained in the videos. Based upon that, I am not satisfied that the videos are sufficiently probative to outweigh the prejudice to the plaintiff in allowing their admission having not been disclosed forthwith on a supplementary list of documents. This is despite the assertion that the plaintiff “lived” the events and that she would not be surprised by the contents. She has given evidence and called her medical and functional capacity experts. The late disclosure of the video evidence has impaired the ability of the plaintiff to meet the evidence.

[17] The admission of the videos and notes may require that she be recalled, or that she recall some of the experts. These days were added to the trial for its conclusion. The admission of the video evidence will necessarily extend the trial.

[18] In relation to the second factor, whether or not there was a reasonable explanation for the parties’ failure to disclose, I have already determined that strategy does not provide a reasonable explanation for lack of disclosure. Rule 26(13) requires that supplementary documents are to be disclosed forthwith and they were not.

[19] Concerning the third factor, whether the document would prevent the determination of the issue on the merits, I have heard evidence including the plaintiff’s evidence and the defendants’ evidence and expert evidence about the plaintiff’s activity and her level of disability. Based on the summary provided by counsel for the defendants of the contents of the video I cannot conclude that I will be prevented from determining the issue on the merits.

[20] Finally, I am not persuaded that the ends of justice require that videos be admitted.

[21] I therefore find that the videos are not admissible.

Interestingly, Madam Justice Gropper went even further and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence.  The Court’s reasoning behind this decision could be found at paragraphs 22-28 of Appendix A to the Reasons for Judgement.

It’s a not so well-kept secret that Insurance Companies often hire private investigators to conduct video surveillance of people involved in personal injury claims.  Sometimes the efforts pay off in uncovering a fraudulent claim.  More often than not hours of bland video are produced doing little more than intruding on the privacy of an injured plaintiff.

These days, however, private investigators may play less of a role as many Plaintiffs are doing the surveillance work themselves. That’s right, Plaintiffs spy on themselves and hand the goods right over to the Insurance Company.

I’m talking about the liberal use of social media, specifically YouTube.  When you or a friend make a film and post it on YouTube chances are the video will be of better quality and give more intimate access to your life than anything a Private Investigator can put together.  PI’s often film from the bushes, a van or other less than ideal locations.  The videos produced are often grainy, distant and of poor quality.  Most videos uploaded to YouTube, on the other hand, are up close and personal.  These videos can give a lot of insight into a person’s life.

Whether or not these videos are damaging to your claim insurance companies are viewing them.  This information can either be directly used against you or will give the insurance company further avenues to pursue in trying to damage your personal injury claim.

The reality is that insurance companies are effectively using social media and uncovering a gold-mine of useful information in the process.  As I’ve previously written, the mere mention of ICBC on twitter will immediately bring you to their attention.  If you’re using social media be aware that your audience is bigger than you intend.

(photo depicting muscle deformity from ruptured distal bicep tendon)

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for a rather unique injury, a ruptured bicep tendon.

In this week’s case (Taylor v. Grundholm) the Plaintiff was involved in motor vehicle collision.  His vehicle was struck by the Defendant’s as the Plaintiff “opened the driver’s side door to reach into the back to retrieve a box of soap….His left hand was holding the steering wheel and he was leaning into the back seat area when the collision occurred.”

The Plaintiff’s vehicle sustained significant damage and was written off.  Fault for the collision was admitted.

The Plaintiff sustained a variety of soft tissue injuries.  The Plaintiff also tore his bicep tendon which caused a muscle deformity.  The most contentious issue was whether the tendon was torn as a result of the collision.  Ultimately the Court concluded that it was and went on to assess the non-pecuniary loss for this injury at $90,000.  In reaching this decision Madam Justice Maisonville noted as follows:

[42]         I find the injury to Mr. Taylor’s biceps tendon and to his upper left quadrant did occur as a result of the accident. Nowhere in the medical records is there a note of this injury — now described by Dr. Leith as a “noticeable deformity” — prior to the accident. The evidence from the physicians was that there would have to have been a significant event to cause this type of injury.

[43]         The biceps tendons are attached to the bone, which anchors the muscle.  When flexed, the muscle will appear to be at about the middle of the upper arm. If an individual has sustained a biceps tendon tear near the elbow (distal), the muscle is no longer anchored and will bunch up proximally, appearing much like the cartoon character Popeye’s arm. This is a noticeable deformity…

49] Dr. Leith further testified that a distal biceps tear is almost never repaired unless it is acute because people with this injury usually have no problems with function; rather (as noted), they will have problems with strength.  Mr. Taylor is thus left with a lifelong cosmetic deformity in addition to the attendant loss of strength…

[60] There is no issue that the plaintiff has suffered a debilitating loss. He will no longer be able to look after his cabin and it will have to be sold. He will no longer be able to enjoy the activities that he enjoyed with his friends and family. Additionally, Mr. Taylor was nearing retirement. As Griffin J. noted in Fata v. Heinonen at para. 88:

The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.)…

[67] In all the circumstances, I award the plaintiff $90,000 in non-pecuniary damages..

The Court went on to reduce this award by 10% finding that the Plaintiff failed to mitigate his damages by not attending physiotherapy which was recommended by his treating physicians.

______________________________________________________________________________________________

• Video Surveillance

This case is also worth reviewing for the Court’s discussion of the impact of video surveillance in injury litigation.

As I’ve previously posted, video surveillance can and does occur and it can be intrusive.  However, video surveillance in and of itself does not harm a person’s injury claim.  Damage is only done if the video demonstrates that the Plaintiff has not been truthful about their injuries / limitations.   In today’s case Madam Justice Maisonville was quick to dismiss the impact of video that did not contradict the Plaintiff’s evidence as can be seen from the following passage:

[50] Mr. Taylor had been placed under surveillance and videotaped by investigators retained by the defendant on certain days in March and April of 2010. I find he was not shown to be doing anything inconsistent with his statement that he sustained an injury and was in pain. At one point, he was shown seated in the driver’s seat of his vehicle and reaching to about ear level with his left arm to grab the seatbelt. It was not a movement where he had to twist his body in any way, significantly arch his back or lift his arm directly over his head. Similarly, he was shown removing his hat with his right hand and smoothing his hair down with his left. I do not find those motions to be inconsistent with his injury. He was not directed by his physicians to cease using his left arm. The fact that he did not show obvious signs of distress when doing these movements is not inconsistent with his injury. He was not observed to be lifting anything. Accordingly, I do not find the videotape surveillance inconsistent with the evidence of the plaintiff and his physicians.

If you are making an ICBC Personal Injury Claim and if you use social media such as Twitter ICBC is probably watching you.

You may be asking yourself ‘how can ICBC find my tweets if they’re not one of my followers?‘.  The answer is simple, ICBC monitors the phrase ‘ICBC’ and each time these letters are used the tweet comes to their attention whether they are one of your followers or not.  Want proof?  Here’s a recent exchange demonstrating this use in action.

An individual made an ICBC claim and posted the following on Twitter:

ICBC quickly responded to this individual as follows:

ICBC was not a follower of this indvidual and he was surprised that ICBC saw his tweet as can be seen from the following reply:

From a customer service standpoint this is probably good stratgy by ICBC.  If a customer is unhappy respond and see if you can help.  I have nothing critical to say about this.  However, from an injury claims perspective, people need to know that their social media use is being monitored perhaps by people they don’t want watching them.

I don’t write this post to scare you from using social media or even to discourage you from discussing your ICBC claim on-line.  You need to be aware, however, that your audience can be bigger then you expect.

As I’ve previously written, when a lawsuit for damages is brought in the BC Supreme Court, the parties are required to make disclosure of certain relevant documents even if such disclosure is harmful to their interests.

In order to strike a balance between fulsome disclosure and privacy rights, the Courts have developed a law known as the “implied undertaking of confidentiality” which prohibits a party who receives this forced disclosure from making use of the documents/information outside of the lawsuit without consent of the other parties or a court order.  Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, dealing with this area of the law.

In today’s case (ICBC v. Titanich) the Defendant was involved in a motor vehicle accident and apparently injured another party named Swan.  Swan sued the Defendant.  ICBC apparently held that the Defendant was in breach of his policy of insurance and defended the lawsuit as a ‘statutory third party‘.  ICBC obtained a Court Order for disclosure of the RCMP records relating to the accident and then settled the Plaintiff’s personal injury lawsuit for some $346,000.  ICBC then sued the Defendant to recover the $346,000 on the basis that they alleged he was in breach of his insurance.

ICBC apparently relied on some of the information obtained in the RCMP files to base their decision to pursue the Defendant for repayment of the $346,000.  The Defendant brought a motion to dismiss the lawsuit arguing that ICBC “breached its implied undertaking of confidentiality in relation to the documents it obtained from the RCMP“:.

The Court ultimately dismissed the motion holding that while ICBC did indeed breach their implied undertaking, no remedy was necessary since ICBC would be granted judicial permission to use the RCMP records in the current lawsuit had they brought a motion seeking such an order.  In reaching this conclusion Mr. Justice Barrow summarized and applied the law of the “implied undertaking” as follows:

[13]        In Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8, Binnie J. addressed the scope of the implied undertaking and its underlying rationale. At para. 4, he wrote:

[4]        Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges.

[Emphasis in the original]

[14]        The rationale for the rule is, in part, to promote complete and candid oral and documentary discovery which, in turn, advances the orderly and effective administration of justice. It does that by providing the litigant making discovery with some confidence that the material produced will be used only for the purpose of securing justice in that proceeding.

[15]        Given this rationale, it is worthy of note that the discovery in issue in the matter at hand did not emanate from a party to the litigation. It does not consist of either oral or documentary discovery produced by Mr. Spinks. It is, rather, information gathered by the police in a process entirely independent of this litigation. I note this not because it necessarily follows that documents produced by third parties are not subject to the implied undertaking but rather because it is a factor that may be taken into account in determining whether a remedy ought to be granted…

[17]        The next issue is whether the plaintiff has used the discovery. The “use” that the plaintiff has made of the information is limited to listing those documents in a list of documents. That constitutes “use” within the meaning of the rule (Chonn v. DCFS Canada Corp. dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 at paras. 47‑52).

[18]        Assuming that the undertaking extends to documents produced by third parties to earlier litigation but relating to the conduct or affairs of a party to that litigation, I am satisfied that the plaintiff breached the implied undertaking.

[19]        In Juman, Binnie J. wrote this about the range of available remedies for breach of the implied undertaking:

[29]      Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court…

Further, it may be that the breach can be remedied by precluding the party in breach from using the evidence in question. That was the remedy applied in Edgeworth Construction Ltd. v. Thurber Consultants Ltd., 2000 BCCA 453, 78 B.C.L.R. (3d) 200.

[20]        Another possible remedy, and the one sought in Chonn is removal of counsel of record for the party in breach…Voith J. concluded that the defendant was in breach of the implied undertaking but declined to grant a remedy. In doing so, he made four points. First, he noted that the documents were relevant. Second, he observed that had the defendant applied to obtain the court’s leave to make use of the documents, leave would have been granted. Third, he noted that although counsel ought to have made an application, his error was not, in all the circumstances, serious. Finally, and largely as a result of the above, there was no prejudice to the plaintiff. As a result, he ordered that the plaintiff produce the documents and that the defendants were at liberty to use them.

[21]        The same four observations apply in the case at bar. The documents are relevant. The outcome of an application to be relieved of the implied undertaking, had it been made, is predictable. Binnie J. commented on the manner in which a court’s discretion might be exercised when faced with such an application. At para. 35, he wrote:

[35]      The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted…

The example posited is this case. Next counsel’s conduct in this case is, if anything, less serious than that in Chonn. As in Chonn, plaintiff’s counsel in the present case raised the issue of the implied undertaking in his first conversation with Mr. Titanich’s lawyer. In doing so, he noted that he was of the view that he required the consent of the plaintiff in the previous action before disclosing the documents. He did not suggest that he needed Mr. Titanich’s consent presumably because Mr. Titanich was not a party of record in the earlier action. Mr. Titanich’s counsel did not suggest otherwise. She simply asked that the documents be forwarded to her. The understanding that Mr. Spinks had from the conversation with Ms. Roy was that they would each list the documents and that all he needed to do was obtain the consent of the plaintiff in the previous action. He obtained that consent and listed the documents.

[22]        Although for the reasons indicated, I think Mr. Spinks was required to obtain the consent of Mr. Titanich, in concluding otherwise, he was not acting in a cavalier manner but was rather proceeding carefully and on the basis of an analysis that appeared to have been shared Mr. Titanich’s own lawyer.

[23]        In all of these circumstances, there is, in my judgment, no need for any remedy.

While ICBC was not penalized for breaching the implied undertaking this case serves as a reminder that lawyers must respect the limits the law imposes on the use of documents which come within their possession through the compelled disclosure of the BC Rules of Court.  Failing to heed these restrictions can result in severe consequences as outlined in today’s case including removal from the case, exclusion of evidence or even dismissal of a lawsuit or a defence

As I’ve previously written, video surveillance in and of itself does not harm a persons ICBC claim, being caught in a lie does.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this fact.

In today’s case (Fata v. Heinonen) the Plaintiff was involved in a 2006 BC collision.  Fault was admitted.  The Plaintiff suffered several injuries including “an obvious impingement syndrome at the shoulder“.  The Defendant disputed the severity of the Plaintiff’s injuries at trial.  Instead of relying on independent medical evidence, the Defendant sought to harm the Plaintiff’s case by relying on video surveillance which was taken the year following the collision.

The surveillance showed the Plaintiff doing various activities such as grocery shopping and unloading and loading objects into his vehicle.  This video surveillance did not harm the Plaintiff’s claim.  Why?  Because it did not show anything that contradicted the Plaintiff’s evidence at trial.  In explaining why the surveillance did not harm the Plaintiff’s claim Madam Justice Griffin held as follows:

[45] The videotape surveillance was not inconsistent with Mr. Fata’s evidence or that of his physicians.  Mr. Fata’s evidence was that his physicians and physiotherapist had recommended that he continue to use his left arm and shoulder, and that he attempts to do so.  No one has suggested that he has no use of his left arm and shoulder.   Neither Mr. Fata nor the physicians, who gave expert opinions on his behalf, suggested any marked limitation in Mr. Fata’s range of motion.  His primary complaint is that he has pain when he uses his left arm and shoulder.  The videotape did not disprove this evidence, nor did it seriously cast doubt on it.  A videotape cannot capture all pain but may illustrate signs of severe pain, for example, if the person being watched grimaces on doing certain activities.  Mr. Fata was not displaying obvious signs of pain.  The videotape perhaps illustrates that whatever pain Mr. Fata might have with ordinary day-to-day activities is manageable.

[46] I have concluded from reviewing the videotape evidence carefully and considering Mr. Fata’s explanations of it, as well as from my review of the medical evidence and Mr. Fata’s evidence of his ongoing symptoms, that Mr. Fata does continue to suffer ongoing symptoms in his left arm and shoulder that were caused by the motor vehicle accident of November 13, 2006.  Given the passage of time, it is likely these symptoms will continue indefinitely.  These symptoms are not severe, as Mr. Fata still has use of his left arm and can do most activities.  However, the symptoms are such that Mr. Fata does suffer pain with the use of his left arm and particularly with excessive use or lifting his arm over his shoulder.  The pain restricts him from some of these types of activities he might otherwise do.

The Court went on to award the Plaintiff $45,000 in non-pecuniary damages for his soft tissue injuries and shoulder impingement.

This case is also worth also worth reviewing for the Court’s explanation of the “Golden Years” doctrine.

• The “Golden Years Doctrine” Explained

In personal injury claims BC Courts recognize that no two cases are exactly alike and the assessment of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) depends on the unique facts of any given case.

One principle that is sometimes used in assessing non-pecuniary damages is the “Golden Years” doctrine.  This principle recognizes the fact that the retirement years are particularly special and an injury affecting a person in their golden years may warrant a greater award for non-pecuniary damages.  Madam Justice Griffin succinctly summarized this principle as follows:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality.  When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life.  Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.  The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[89] In short, it is Mr. Fata’s loss of enjoyment of life in recreation, home chores, and work that should be compensated for in an award for non-pecuniary damages…

[91] On the facts of this case, where Mr. Fata has suffered a loss of some enjoyment of life in every aspect of his life, I conclude that an appropriate award for non-pecuniary damages is $45,000.