ICBC Law

When suing for compensation in an ICBC claim the BC Supreme Court Rules contain various ways to force disclosure of information.  From requiring the exchange of relevant documents, permitting the parties to attend an examination for discovery and even forcing an ‘independent medical exam’ in certain circumstances there are many tools which can be used to learn about your opponents case.

One further tool is the request for “particulars“.  If a party to a lawsuit is not clear what the other side is formally putting in issue they can ask for clarification by making a demand for particulars under Rule 3-7(23) of the Rules of Court.  There are, however, limits to the use of this Rule and this was demonstrated in reasons for judgement released this week by the BC Supreme Court.

In this week’s case (Yousofi v. Phillips) the Plaintiff was injured in a motor vehicle collision.  He sued for damages seeking compensation for, amongst other things, past and future wage loss, past and future medical expenses, past and future disability and out of pocket expenses.  ICBC’s lawyer demanded that the Plaintiff provide particulars of these claims.  The Plaintiff refused arguing that this was an inappropriate request.  Mr. Justice Hinkson agreed with the Plaintiff and in dismissing the Defence motion made the following useful comments about the limited use requests for particulars should have in ICBC injury claims:

The entitlement of a party to particulars…is discussed by Mr. Justice Joyce in Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371, beginning at paragraph 9.

[4] In that case, His Lordship makes the point that:

Particulars are provided to disclose what the pleader intends to prove. How that party intends to prove the material facts and particulars is a matter of evidence. The pleading party is not required to, and indeed, is not entitled to set out in the pleadings the evidence that he or she intends to adduce at trial to prove the facts that have been pleaded.

[5] In David et al v. Her Majesty the Queen in Right of Canada et al, 2004 BCSC 1306, Mr. Justice Cohen considered the distinction between the material facts and evidence and referred to an earlier decision of Mr. Justice Joyce when he was a master of this court, Firestone v. Smith, [1991] B.C.J. No. 2660 (S.C.)(QL), where Master Joyce said at paragraph 11:

In my view the concern raised by the plaintiff at this stage is that he does not know but would like to know now what precise evidence the defendant may lead in support of his allegations of fact. In my respectful opinion the plaintiff is not entitled to ascertain the evidentiary basis of the defendant’s case by way of this demand for particulars.

[6] Turning to the notice of motion for particulars, the particulars sought at a relatively late juncture following examinations for discovery include a request for further and better particulars with respect to:

(a)      The Plaintiff’s Past and Prospective Loss of Enjoyment of Life

In my view, that is an inappropriate request for particulars and is a matter that can and should be pursued by way of examination for discovery. In my view, it is not necessary to provide particulars with respect to that head of damage.

(b)      The Plaintiff’s Past and Prospective Physical Disability

The injuries alleged by the plaintiff have been set out in the statement of claim and the extent of his disability arising therefrom is not a matter that is required as an item of pleadings. It, too, should be pursued by examination for discovery.

(c)      The Plaintiff’s Past and Prospective Loss of Earnings

Insofar as the past loss of earnings is concerned, this is information that can be identified and quantified and should be provided by the plaintiff to the defendant. It is not, in my view, appropriate that it be provided as particulars, but I am satisfied it should be provided in some fashion to the defendant, and I am going to direct that the plaintiff quantify his claim for past loss of earnings and provide that information to the defendant.

Insofar as prospective loss of earnings is concerned, I am not satisfied that that is a matter that can be necessarily particularized, and I leave it to the defendant to pursue that through examinations for discovery.

(d)      The Plaintiff’s Past and Prospective Loss of Earning Capacity

Like the prospective loss of earnings, I do not consider this to be an appropriate subject matter for particulars, and it is a matter that can be pursued by way of examination for discovery.

(e)      The Plaintiff’s Past and Prospective Loss of Opportunity to Earn Income

This is a head that is hard to distinguish from past and prospective loss of earning capacity. To the extent there is any difference, in my view it should be treated the same as the request for particulars of past and prospective loss of earning capacity.

(f)       The Plaintiff’s Past and Prospective Loss of Housekeeping Capacity

This is another matter that in my view does not warrant particularization in the pleadings. It can be pursued through examinations for discovery.

(g)      The Trust Award on Behalf of the Plaintiff’s Friends and Family

This, too, is not a matter that, in my view, should be dealt with by way of particulars, with this exception:  The individual or individuals for whom a trust award is claimed should be identified in the statement of claim where the trust award is advanced.

(h)      The Plaintiff’s Special Damages

These are matters that should be identified by the plaintiff for the defendant, but not as particulars of the pleadings.

As I’ve previously discussed, one of the main purposes of an examination for discovery is to ‘discover‘ evidence that can help your case or hurt your opponents.

After a discovery a lawyer can read relevant portions of the transcript in at trial and the evidence can have the same weight as if it was given live in Court.   However, just because you have evidence obtained from a discovery does not mean it should be used.

If you read evidence in that advances your opponents case (or that contradicts yours) the Court can rely on this to dismiss your lawsuit.  Reasons for judgement were released today by the BC Court of Appeal discussing this principle and some of its limits.

In today’s case (Duncan v. Mazurek) the Plaintiff, a pedestrian who was jay-walking, was struck by the Defendant’s vehicle.  At trial both the Plaintiff and the Defendant were found at fault.  The Defendant successfully appealed and a new trial was ordered.  Before reaching this verdict the BC High Court had the opportunity to discuss the weight of discovery evidence at trial.

During the trial the Plaintiff read in portions of the Defendant’s examination for discovery.  Some of the evidence apparently contradicted the evidence supportive of the Plaintiff’s case.  The Defendant argued that doing this  amounted to the Plaintiff adopting the Defendants evidence and leaving the trial judge with no choice but to accept it.  The BC Court of Appeal disagreed however provided the following caution about reading in unhelpful evidence from a discovery transcript:

[30] The defendant, relying on Chetwynd-Palmer v. Spinnakers, [1993] B.C.J. No. 95 (S.C.) and Tsatsos v. Johnson (1970), 74 W.W.R. 315, says that by reading in that discovery the plaintiff adopted and approbated his evidence, and the trial judge is not entitled to reject it and choose a different version more favourable to the plaintiff. I am not convinced those cases go that far. While the plaintiff may be at some risk in reading in such evidence as part of her case, where there is contradictory evidence it is my view that the trial judge must retain discretion to weigh it all in reaching his findings

Before you read in discovery evidence ask yourself if the evidence helps your case or hurts your opponents.  If the answer is no to both questions you should think twice before letting the evidence go before the Court.

Further to my recent post on this topic, often after serious motor vehicle collisions ICBC sends adjusters out to collect statements from the parties and known witnesses to the event.

When a lawsuit for compensation is brought by an injured party ICBC sometimes does not disclose the witness statements to the Plaintiff on the basis of ‘litigation privilege‘.   Being a monopoly insurer, ICBC investigates claims and our Courts have consistently held that if the statements were obtained during the ‘investigation‘ stage ICBC’s claim of ‘litigation privilege‘ will fail and the documents will have to be disclosed.  Reasons for judgement were released this week with helpful comments addressing this area of the law.

In this week’s case (Sauve v. ICBC) the Plaintiff was injured in 2008 motor vehicle collision.   After the collision ICBC hired an independent adjuster who obtained witness statements and also provided ICBC a report in which she sized up the various witnesses.  In describing the report the adjuster deposed that she “used my expertise and experience as an Insurance Adjuster to describe each of the Witnesses, including their physical appearance, demeanor and presentation. I also provided an analysis as to the likely performance of each witness in court. I further provided analysis of the commonalities between various witness accounts for the purpose of assessing credibility and preparing the case of the Defendant, ICBC should litigation occur”

ICBC provided the Plaintiff with the witness statements but refused to provide the report claiming the protection of litigation privilege.  The Plaintiff brought a motion to force disclosure.  Ultimately Mr. Justice Joyce held that the reports were privileged and ICBC did not have to disclose them to the Plaintiff.  Before reaching this conclusion the Court provided helpful reasons addressing the difficulty ICBC may face in claiming privilege over witness statements obtained in the immediate aftermath of a collision.  Mr. Justice Joyce reasoned as follows:

[34] I turn to the second part of the test: were the documents created for the dominant purpose of assisting the defendant in the conduct of the anticipated litigation by Ms. Sauvé?

[35] Once again in answering that question, it is important to focus on when the reports were created and to consider them separate from any consideration of whether the witness statements and photographs would meet the dominant purpose test. I can certainly accept that the witness statements and photographs may well have come into existence for two purposes:

(1)       to investigate the circumstances of the accident, and

(2)       to assist in the conduct of litigation.

[36] Therefore, whether those documents would satisfy the second part of the test might have been a difficult question to answer. The defendant might not have been able to meet the test for the first group of documents on a balance of probabilities, but that is not the question that I have to decide.

[37] In my view, when deciding whether the reports were prepared for the dominant purpose of litigation I have to consider not only what was known by Mr. Taylor and communicated to Ms. Webber; I also have to consider what Ms. Webber knew when she prepared the reports, as well as the nature of the reports. Ms. Webber has deposed that when she prepared the reports, she believed that the dominant purpose for their creation was litigation. She came to that conclusion being aware of the information that the witnesses could give with respect to the circumstances of the accident. According to Ms. Webber, the reports consist of her descriptions of the witness, her impressions or opinions concerning their credibility and her own analysis of how the evidence of the various witnesses matched or conflicted. While it might be possible that such information might assist ICBC at the investigation stage, I am of the view that any such use of the documents would clearly be secondary to their use in assisting counsel in the conduct of the action. I am, therefore, satisfied that the reports were created for the dominant purpose of litigation and attracted litigation privilege.

In addition to the above this case contains a useful analysis of the law of waiver of privilege and ‘common interest’ privilege and is worth reviewing in full for anyone interested in these topics.

As I’ve previously written, litigation privilege is a principle which allows parties not to share relevant documents with the other side in a lawsuit in limited circumstances.  Despite this principle, the BC Courts seem to be favouring the trend of disclosure making it more difficult for parties not to disclose documents after lawsuits get underway.  Reasons for judgement were released last week demonstrating this trend.

In last week’s case (Beer v. Nickerson) the Plaintiff was injured in 2008 as a result of a slip and fall incident at a Pharmasave in Victoria, BC.  The Plaintiff alleged the fall occurred as a result of the Defendant’s “negligent operation of her scooter in the store“.

The Defendant contacted her insurance company after the incident.  The insurance company conducted an investigation and in the process of this obtained a statement from the Defendant, a drawing of the store prepared by the Defendants daughter, and photographs of the location of the incident.

After the lawsuit started the Defendant’s lawyer refused to provide these documents arguing they were protected by “litigation privilege“.   Master Bouck of the BC Supreme Court disagreed and ordered that these documents be produced.  In reaching this conclusion the Court reasoned that the documents were not privileged because a lawsuit was not a ‘reasonable prospect‘ when these documents were created and further that they were not created for the ‘dominant purpose‘ of use in a lawsuit.  Before reaching her verdict Master Bouck provided the following useful summary of the law:

[17] The legal principles to be applied on this application are well-settled and set out in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, supra. Those principles are as follows:

1.  The party withholding disclosure bears the onus of establishing a claim for privilege over a document.

2.  The test for considering whether litigation privilege is established is two-fold:

(a)  Was litigation a reasonable prospect at the time the document in dispute was created?

(b)  If so, was the dominant purpose of the document’s creation for use in litigation? (commonly known as the “dominant purpose” test.)

3.  Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.

4.  However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege. As stated by the court in Hamalainen v. Sippola:

Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

6.  It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.

[18] To these principles I would add that the dominant purpose test is consistent with “the more contemporary trend favouring increased disclosure”: Blank v. Canada (Department of Justice), 2006 SCC 39 at paras. 60-61.

This case is helpful in permitting Plaintiffs to obtain more fulsome disclosure early in a lawsuit.  Our Courts have made it clear that if documents are gathered by an insurance company for the purpose of investigating a claim (as opposed to defending a potential lawsuit) then these documents will have to be disclosed under the BC Supreme Court Rules.

Further to my previous posts on this topic, when people sue (or are sued) in the BC Supreme Court the Rules force disclosure of certain facts and documents.  To balance the parties privacy interests the Courts have developed an “implied undertaking of confidentiality” which is basically a judge made rule that “requires a party to civil litigation to keep confidential all information disclosed by adverse parties in the litigation under the compulsion of discovery procedures.  The receiving party is only to use the disclosed information in the litigation in which it was produced”

The implied undertaking can be lifted by an order of the Court or by consent of the party that disclosed the information.  Another way the implied undertaking can come to an end is if the case goes to “open court”.   The question is when is the open court exception triggered.  As most lawyers know most cases don’t go to trial but it is common to have pre-trial applications held in open court.  In such a case is the exception triggered?  Reasons for judgement were released today dealing with this novel issue.

In today’s case (Bodnar v. The Cash Store inc.) the Plaintiff’s were involved in a lawsuit.  During the course of that claim a pre-trial motion was brought which relied, in part, on documents produced by the Defendant by the compulsion of the forced disclosure under the Rules of Court.  The case ultimately settled and a different class of Plaintiff’s brought a “virtually identical” lawsuit.

The Plaintiff’s wished to use the materials obtained in the first lawsuit in the second claim.  The Defendant’s would not consent arguing that the implied undertaking of confidentiality prohibited this use.  The Court was asked whether having the documents used in a pre-trial chambers application triggered the open court exception.  Madam Justice Griffin provided the following useful analysis:

[45] I conclude that a proper balancing of the public interest involved in the implied undertaking rule and in the open court principle, in respect of information filed in court as part of an interim application, can best be achieved by applying the following principles:

(a) the implied undertaking does not end when information, produced by an adverse party under compulsion of discovery (the “Producing Party”), is filed in court by the receiving party (the “Receiving Party”) in support of an interim application;

(b) in considering a Receiving Party’s application for leave to be relieved from the implied undertaking, the court may consider, as one factor in support of leave, the fact that the information was filed in court for a legitimate purpose and became part of the court record; and

(c) the implied undertaking of a Receiving Party ends, with respect to information produced by the Producing Party, when that information is filed in court by the Producing Party itself.

[46] The above principles would seek to avoid the mischief of a party with ulterior motives filing the adverse party’s information in court simply to get around the implied undertaking.  Upholding the implied undertaking and placing the onus on the Receiving Party to seek the court’s leave before using the information for another purpose, would encourage parties to fulfill their discovery obligations knowing that the implied undertaking cannot easily be avoided.   At the same time, the fact that the documents are now part of the court record, available to all other persons, will be one important factor to be considered by the court on a Receiving Party’s subsequent application for leave to use the documents for other purposes.

[47] It makes sense however, that the implied undertaking is lost when the Producing Party files its own information in open court.  There can be no concern about abuse of process or a deliberate attempt to circumvent the implied undertaking rule in such a situation, given that the Producing Party is not under any undertaking with respect to its own information and was not compelled to produce it in court.

The Court went on to hold that, despite the implied undertaking not coming to an end by virtue of the documents use in court, it would be appropriate to permit the Plaintiff’s to use the information in the subsequent lawsuit.  This case is worth reviewing in full for anyone interested in the developing principles of privacy law in BC as the judgement contains a lengthy discussion of the principles at play and the relevant precedents addressing the “implied undertaking of confidentiality”.

When a party to a personal injury lawsuit wishes to use documents at trial those documents have to be disclosed to the opposing side as per the BC Supreme Court Rules otherwise the evidence may not be admissible.  Two recent cases from the BC Court of Appeal have clearly highlighted this.  Today, reasons for judgement were released by the BC Supreme Court considering the scope of documents that need to be disclosed.

In today’s case (Beazley v. Suzuki Motor Coroporation) the Plaintiff called a witness to give expert evidence.  The witness testified that he had limited knowledge of something known as the “Critical Sliding Velocity standard” and that he had “never proposed such a standard to the National Highway Traffic Safety Administration“.

On cross-examination the Defence lawyer produced a letter written by the witness addressed to the National Highway Traffic Safety Administration apparently “supporting the use of a Critical Sliding Velocity Standard“.

The Plaintiff’s lawyer objected to this cross examination arguing that the letter was not listed on the Defendant’s list of documents and therefore could not be used.  Mr. Justice Goepel disagreed finding that documents that are used solely for impeaching an expert wittiness’ credibility do not necessarily have to be listed.  Specifically the Court reasoned as follows:

[7] A party is obliged to list all documents that fall within the purview of Rule 26(1) including those documents that can properly be described as forming part of the solicitor’s brief: Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4^th) 203; Dykeman v. Porohowski, 2010 BCCA 36. Neither Stone, Dykeman or the cases cited therein deal with the use of documents being introduced to impeach the general credibility of an expert witness.

[8] A party who chooses to call an expert vouches for that expert’s credibility. The type and nature of documents that might challenge such credibility are endless. They may include articles, letters, testimony, speeches or statements that the expert has made in the past. There may be other articles which critically challenge the expert’s conclusion. Most documents which go to challenge an expert’s opinion or credibility are not documents which are related to the matter in question in the action. They only become relevant because of the expert’s testimony and do not fall under the purview of Rule 26.

[9] This ruling does not apply to all documents that the defendants may wish to put to this or other witnesses. If a document is otherwise related to a matter in question, it is not protected from disclosure merely because it will be used in cross examination or forms part of the solicitor’s brief.

[10] The August 5, 1994 letter, however, only becomes relevant because of Mr. Heitzman’s testimony. It was not a document that need be listed and the defendant is entitled to use the document in cross examination.

[11] To the extent the plaintiffs object to other documents the defendants might wish to put to Mr. Heitzman, those objections will be dealt with as they arise.

Further to my previous post discussing this topic reasons for judgement were released today dealing with the extent of pre-accident record disclosure ICBC (or other defendants) are entitled to when a Plaintiff sues for damages for personal injuries in the BC Supreme Court.

In today’s case (Moukhine v. Collins) the Plaintiff was involved in a 2007 BC car crash.  The Plaintiff sued for damages.  In the Statement of Defence the lawyer plead that the injuries are not the result of an accident, but are were in fact pre-existing conditions.  (This is a rather ‘boilerplate’ pleading raised by the defence in almost every ICBC injury claim).  The defence lawyer then asked that the Plaintiff provide medical records which pre-date the accident by as much as 15 years.

The Court was asked to decide  ”whether a mere allegation in a pleading that a plaintiff’s injuries are not the result of an accident, but are caused by his or her pre-accident health condition is enough, without more, to entitle a defendant to production of pre-accident medical records“.

Mr. Justice Harris went on to hold that in personal injury cases, the mere allegation by the Defence lawyer of a pre-existing condition may be enough to compel the disclosure of pre-accident records.  Specifically the Court reasoned as follows:

[18] In my opinion, nothing in Dufault is authority for the proposition that pleadings alone are insufficient to make an order under Rule 26(11) or that evidence is always necessary. Similarly, Dhaliwal does not address the relevance of pleadings as a basis for making a Rule 26(11) order. There is no reference in the judgment  to the issues pleaded in the action and whether pleadings  would have affected the outcome. The case deals only with the sufficiency of the evidence that was before the court. I do not draw from the case the proposition that pleadings standing alone and defining the issues in the action are never a sufficient basis to satisfy the court to make a Rule 26(11) order.

[19] In Marsh v. Parker, 2000 BCSC 1605 at para. 9, Master Horn concluded that Dhaliwal stood for the proposition that “there must be something either by way of evidence or by way of the pleadings which raises the plaintiff’s pre-injury state of health as an issue.”  I agree. Indeed, in Creed v. Dorio, [1998] B.C.J. No. 2479, Mr. Justice Edwards, at paragraph 13, rejected the proposition that “some evidence”  was necessary to establish relevance….

[22] In an appropriate case pleadings  are a sufficient basis on which to exercise a discretion to order production of at least some documents. In some cases it is reasonably obvious that records  may contain relevant (in the sense that term is used in Peruvian Guano) information and should be produced, subject to production following a Jones orHalliday format. Evidence may be required in order to resist a production order. That does not mean, however, that an order will always go on the basis of pleadings alone and it may be premature in some circumstances  to make such an order before discovery (see, for example, Mehdipour v. Shingler (18 March 2009), Vancouver M080517 (S.C.)). Merely pleading pre-existing conditions does not deprive the court of its discretion to refuse to make the order sought when, for example, there is no air of reality about the alleged connection between the documents sought and the issues in the action. Evidence may therefore, on occasion,  be required to establish the relevant connection to overcome the conclusion that the documents are  irrelevant to the claim.

I should point out that as of July, 2010 the new BC Supreme Court Civil Rules come into force and the tests for what types of documents need to be exchanged will be narrower so it will be interesting to see how this area of law changes under the soon to be in place new system.

One of the most powerful tools a trial lawyer has is cross-examination.  In cross examination a lawyer can pose leading questions forcing a witness to agree or disagree and in doing so the lawyer seeks to get admissions that help his client’s case or hurt his opponent’s case.

In pre-trial examinations for discovery a lawyer has the right to ‘cross-examine‘ the opposing party.  By that I mean a lawyer is permitted to control the examination with leading questions.  If done effectively damage can be done to the your opponents case.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating the results of a persuasive cross examination.

In today’s case (Mann v. Rainsford) the Plaintiff was injured while viewing a neighbour’s open house.  As the Plaintiff was leaving the house she mis-stepped on a concrete slap (basically a step) along a pathway from the home to the sidewalk.  Having mis-stepped the Plaintiff fell and was injured.  She sued the home-owner claiming that this concrete slab was a hazard and that steps should have been taken to guard against this injury.

Mr. Justice Wilson of the BC Supreme Court disagreed and dismissed the Plaintiff’s lawsuit.   The Court noted that the Plaintiff’s injuries “were caused solely by her own inattention“.  The Court reached this decision largely by the Plaintiff’s own evidence which was given at examination for discovery.  The Plaintiff’s evidence clearly had a damaging impact on her case and the discovery exchange is worth reviewing for anyone learning about cross examination in personal injury lawsuits.  The damaging cross examination was as follows:

[29] The plaintiff explained the mechanics of the incident, at her examination for discovery, as follows:

92   Q  Tell me what you did when you left the house.

A   I walked out of the front door and I stepped down the first step.  And I remember I was looking at the garden.  And I tripped.  And I went to grab the handrail, but there was no handrail there and I fell forward down the step.

…

96   Q  You said you were looking at the garden?

A   Mm-hmm, yes.

97   Q  Which area of the garden were you looking at?

A   On the left-hand side coming out.

98   Q  So the right-hand side of the photograph, you were looking over that way?

A   Yes.

…

100 Q  You didn’t slip on anything, is that right?

A   No.

101 Q  And you didn’t trip on anything, did you?

A   No, there was no object there.

102 Q  You misstepped, is that right?

A   Yes.

…

128 Q  So you stepped off the landing onto –

A   The step, yes.

129 Q  — down the first step, and you did that fine.

A   Yes.

130 Q  So you got down onto, say, the second landing?

A   Yes.

131 Q  And then you went forward?

A   Yes.

132 Q  And then what happened?

A   I tripped on that step, as far as I can remember.

133 Q  So you were looking at the garden to the left?

A   Yes.

…

137 Q  Why did you fall?  Do you know why you fell?

A   It wasn’t a normal configuration of steps going down, so I missed it.

138 Q  You just went up it 30 minutes earlier.

A   That’s correct.

139 Q  So you knew that there was a step and a landing and another step and a landing from when you just went up 30 minutes earlier, right?

A   I saw it as I went up, but I wasn’t looking at the stairs as I came down, because I don’t normally have to look and check to see where the steps are when you’re going down.

140 Q  You knew that this isn’t a staircase like at your house.  You knew that when you got there and you knew that when you went to go up into the house, right?

A   I saw it when I went up.

141 Q  So you knew that there were landings in between the steps and that you would have to walk to get to the next step, right?

A   Yes.

142 Q  I’m just trying to find out what was surprising to you that it was the same on the way out as it was on the way in.

A   I guess I hadn’t recalled the configuration when I left.

…

144 Q  So it was the same on the way out as it was on the way in?

A   Yes.

145 Q  It was simply just that you misstepped when you left the house, isn’t that right?

A   That’s correct, yes.

When preparing for discovery or trial you need to know that the defence lawyer will try to harm your case and must be prepared for a leading cross examination.  If not, you risk causing significant and possibly preventable damage to your claim.

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

Here is a video I’ve uploaded to YouTube discussing examinations for discovery in BC Injury lawsuits:

An Examination for Discovery is a process where the opposing side can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s evidence can play a key role in whether the case settles or proceeds to trial.

In ICBC claims some of the usual topics that are covered are the circumstances of the accident, the injuries sustained, the expenses incurred, the course of recovery of the injuries, wage loss details and other the effects of the accident related injuries on lifestyle  (You can click here to read a more in depth article about what is covered at a Discovery).

I hope this introductory video and the linked articles take some of the mystery out of the process.