ICBC's "Two Hats" Derails Litigation Privilege Claim

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering ICBC to produce and investigative report and video.
In today’s case (Oates v. Burton) the Plaintiff was injured in a collision and sued for damages.   After being represented by a lawyer the Plaintiff applied for disability benefits from ICBC and shortly after ICBC ordered surveillance.
The Plaintiff, in the context of the injury lawsuit, sought production of the surveillance and the investigator’s report but ICBC refused to produce this arguing it was privileged being created for the dominant purpose of use in the (at the time contemplated) injury lawsuit.  Mr. Justice Voith disagreed finding the report was likely created for dual purposes including investigating the Plaintiff’s claim for disability benefits.  In ordering production the Court provided the following reasons:

]         This case turns, as is generally the case, on the second or more “challenging” question; Raj at para. 12. That “challenging” question is whether Item 4.3 was generated for the dominant purpose of use in litigation.

[24]         I return to the narrow and focused chronology that I emphasized earlier. On August 23, 2013, plaintiff’s counsel, more than ten months after he had first advised the Insurance Corporation of British Columbia that he had been retained, sought an extension of the plaintiff’s temporary total disability (“TTD”) or Part 7 benefits. On September 5, 2013, or less than two weeks later, Item 4.3 was created. Almost immediately thereafter, plaintiff’s counsel was contacted and the plaintiff’s TTD benefits were extended. Approximately nine months later, the plaintiff’s Notice of Civil Claim was filed.

[25]         The plaintiff argues that at least one purpose that underlay the creation of Item 4.3 was the defendants’ desire to investigate or assess the plaintiff’s TTD benefits claim. Furthermore, and importantly, the plaintiff argues that it was necessary for the defendant to expressly address the relationship between the plaintiff’s TTD benefits claim and the creation of Item 4.3…

[31]         I do not say that a deponent, who prepares an affidavit that is intended to support a claim for litigation privilege, must address and negate all other potential or notional purposes, however remote, for which that document might have been prepared. In this case, however, the prospect or likelihood that Item 4.3 was created to address, at least in significant measure, the plaintiff’s TTD benefits claim is not fanciful or speculative. The preparation of Item 4.3 is bracketed, on the one side, by the ten months from when the defendants learned that the plaintiff had retained counsel and by eight months, on the other side, by when the Notice of Civil Claim was ultimately filed.

[32]         Conversely, Item 4.3 was prepared almost immediately on the heels of the defendants learning that the plaintiff was seeking an extension of her TTD benefits. In such circumstances, I do consider that there was a positive obligation on the part of the defendants’ deponent, the adjuster who oversaw the matter, to expressly and directly address the relationship of Item 4.3 and the plaintiff’s claim for TTD benefits, and the extent to which that claim gave rise to the creation of Item 4.3. That failure, in these circumstances, undermines the defendant’s affidavit evidence, calls into question the dominant purpose for the creation of Item 4.3, and is fatal to the defendants’ claim for litigation privilege over Item 4.3.

[33]         This conclusion is reinforced by the affidavit evidence of the adjuster on this central issue – evidence that the Master in the Reasons accurately described as “not particularly persuasive”. Specifically, the adjuster in her affidavit said:

… By the summer of 2013, the medical information seemed to indicate substantial recovery but with some partial disability. To get a better understanding of her function, I hired a private investigator to review the Plaintiff’s level of activity. My intention on retaining the investigator was to use the results of the investigation to hopefully assist with the defence of the claim and to assist counsel to prepare for litigation not yet commenced but reasonably anticipated.

[34]         Accordingly I allow the plaintiff’s appeal, and I order that Item 4.3 be produced to the plaintiff within seven days of these reasons being released. The plaintiff is to have the costs of both this appeal and of her earlier application.