ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Rule 7-1(10)’

“Investigative Stage” Trumps Claim to Litigation Privilege Regarding Quantum of Damages Investigation

August 7th, 2013

I’ve previously discussed the difficulty ICBC has trying to withhold documents in a personal injury lawsuit based on their ‘investigative’ responsibilities.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic.

In this week’s case (Spenst v. Reemeyer) the Plaintiff alleged injury s a result of a motor vehicle/pedestrian incident which occurred in 2010.  In the course of the lawsuit ICBC denied liability on behalf of the motorist.  ICBC refused to produce two ‘investigative reports’ they commissioned arguing these were protected by litigation privilege.  Master Caldwell found the evidence ICBC produced in support of their claim fell short of the mark to obtain the protection of privilege and ordered production of the documents.  After summarizing the legal principles involved Master Caldwell provided the following reasons:

[12]         In short, the determination as to whether litigation is contemplated as a reasonable prospect is not merely subjective and arbitrary but rather must be objective and based upon reasonable information obtained by appropriate investigation.

[13]         What does the evidence before me reveal when viewed in the light of the above tests?

[14]         First, I have absolutely no evidence from that adjuster who apparently had conduct of the file for the first 18 months.  I am not told whether or not any investigations were undertaken during that time as to either the issue of liability or the extent of damages.  Plaintiff’s counsel submitted, and defence counsel did not dispute, that no denial of liability was ever communicated to the plaintiff prior to the delivery of the Response to Civil Claim.

[15]         Second, Ms. Roach notes that the plaintiff retained counsel.  Plaintiffs have a right to obtain legal advice, including legal advice regarding their rights and responsibilities arising out of motor vehicle or personal injury matters. Consultation with counsel is not a direct or even reasonable guarantee that one is on the road to active litigation; the involvement of counsel may well enhance the possibility of resolution short of trial.

[16]         Third, Ms. Roach says that she only handles claims that are being litigated or are likely to be litigated and thus she determined that since the file was transferred to her it would be litigated.  Strangely however, Ms. Roach, in her own correspondence of May 8, 2012 (the day she commissioned the investigations/reports) wrote to plaintiff’s counsel:

To minimize costs, I will work with you to conclude this matter as quickly as possible.  If it is determined that your client is entitled to compensation, I will be prepared to release settlement funds only when the entire claim, including taxable costs and disbursements, has been resolved and the necessary release documentation completed.  I look forward to working with you on this matter.

[17]         At the time Ms. Roach wrote this conciliatory letter referencing concluding the matter, entitlement to compensation and settlement funds in response to a similarly conciliatory letter of introduction from plaintiff’s counsel, action had not yet been commenced, no position on liability had been taken and there is no evidence that any substantive investigation or even basic inquiry had been undertaken regarding any aspect of the plaintiff’s claim.  The mere arbitrary assertion that this file is likely to go to litigation because this adjuster handles only litigation files and she had decided it would go to litigation is not objectively defensible on the evidence before me.

[18]         Fourth, Ms. Roach says that the end of the limitation period was approaching and, by implication, litigation would have to be commenced.  What this assertion fails to recognize is that there is a significant difference between the commencement of an action in order to protect against the expiry of a limitation period and the active conduct of litigation.  In her May 8 correspondence, Ms. Roach expressly confirmed that her letter was not “a waiver or extension of any applicable limitation”.  In order for any legitimate, even-handed settlement discussions to take place, as invited by her letter, it was necessary for plaintiff’s counsel to preserve the plaintiff’s right to claim at law for her alleged injuries in the event that negotiations failed.

[19]         Counsel for the defendant advised in submissions that the investigative reports were obtained not on the issue of liability but rather on the issue of quantum of damages.  There was no evidence in the material to support that submission and counsel failed to indicate why that distinction would make a material difference in regard to the investigation/dominant purpose assessment.

[20]         The evidence before me fails to objectively establish to any certainty that the reports which were commissioned and which are sought by the plaintiff were commissioned for any purpose other than for basic investigation of the plaintiff’s claim.  There is no evidence to indicate that the adjusters had undertaken any type of earlier investigation to determine whether there was a reasonable, objective basis upon which liability should be denied or quantum questioned.  The reports are ordered produced forthwith.


"Mere Possibility" of Pre-Existing Injury Not Sufficient To Justify Document Disclosure Request

November 19th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further judicially shaping document disclosure obligations under the new rules of court.

In last week’s case (Bains v. Hookstra) the Plaintiff was injured in a 2009 motor vehicle collision.  The Plaintiff agreed to produce his MSP Printout, Pharmanet Records and WCB records from the time of the crash onwards.  The Defendant was not satisfied with this timeframe and sought these records from before the collision.  In support of their application the Defendant produced evidence that the Plaintiff was involved in two collisions in the year prior to the accident at issue in the lawsuit.  The Defendant plead that there was a pre-existing injury but the Court noted this was done in a “very pro-forma way“.

Master Muir ultimately rejected the application finding that evidence of previous collisions leads to no more than “mere speculation” of a pre-existing injury.  In dismissing the application the Court provided the following reasons:

[14]         The applicant must demonstrate a connection between the documents sought and the issues beyond a “mere possibility”: Przybysz v. Crowe, 2011 BCSC 731 at para. 45, referencing Gorse v. Straker, 2010 BCSC 119 at para. 53, and, as was noted by Master Bouck in Edwards v. Ganzer, 2012 BCSC 138, at para. 51, “there must be some ‘air of reality’ between the documents and the issues in the action ….”

[15]         The plaintiff has clearly denied that he was suffering from any pre-existing injury at the time of the accident in question or for two years prior. He has further denied that he made any WCB claim during that two-year period.

[16]         The evidence put forward by the defendant does no more than raise the mere possibility of a prior existing condition. In the circumstances of the plaintiff’s denial, that evidence is insufficient to warrant an order for the production of the documents sought.

[17]         The defendant’s application is therefore dismissed


The "Investigative Stage" Bar to Privilege: Plaintiffs vs. Insurers

April 30th, 2012

As recently discussed, claims for litigation privilege can fail when a defendant’s insurer collects statements and information shortly after a collision in what is deemed to be the ‘investigative stage‘.  The simple reason being that such documents typically are not created for the dominant purpose of litigation.

This analysis, however, does not necessarily translate easily to statements obtained by Plaintiffs following a crash because Plaintiffs do not share the same investigatvie responsibilites that insurers do.   This reality was highlighted in reasons for judgement published earlier this year by the BC Supreme Court, Vancouver Registry.

In the recent case (Cliff v. Dahl) the Plaintiff was injured in a 2007 collision.  She hired a lawyer to assist her with her claim.   The lawyer hired an investigator who obtained statements from multiple witnesses to the collision.

ICBC brought an unsuccessful application to force the Plaintiff’s lawyer to produce these documents.  The Plaintiff refused stating these statements were privileged.  ICBC appealed arguing these documents were obtained during the ‘investigative stage‘ and should be produced.  In dismissing the appeal Mr. Justice Smith provided the following reasons highlighting the ‘investigative stage’ and the different duties of Plaintiffs versus insurers:

[22] The Master had before him an affidavit of plaintiff’s counsel which, sketchy as it is, did say that the information was gathered and the statements were gathered for the purpose of preparing for the plaintiff’s case in this action, as opposed to investigating the plaintiff’s case, and the Master apparently inferred from that that litigation was the dominant purpose. Sketchy as that evidence was, I cannot say that the Master was clearly wrong in drawing that conclusion.

[23] Defence counsel refers to a statement of the Master in which he says in effect that it is very hard to see how statements gathered by plaintiff’s counsel once retained would not meet the dominant purpose test. That is probably too broad a statement and certainly if the Master said that it was a general rule of law, that would be a question of law to be reviewable but in my view that is not the basis of the Master’s decision. He made a finding on the evidence before him.

[24] In that regard, I note that while the evidence from plaintiff’s counsel is sketchy, plaintiff’s counsel in this situation is in a somewhat different position from the insurance adjusters whose determination of dominant purpose is often at issue in other cases such as Hamalainen, supra.

[25] The point at which a plaintiff’s counsel moves from the stage of investigating and considering the possibilities of litigation to a firm decision to proceed and the subsequent efforts that have a dominant purpose of litigation depends of course on the information in counsel’s possession. Much of that information must necessarily come directly from the plaintiff and the plaintiff’s counsel must balance the need to show the dominant purpose of the document or the witness statement with the restrictions placed upon him or her by solicitor/client privilege.

[26] I infer from the material before me that the Master reviewed the evidence and found it sufficient to establish a dominant purpose. Whatever decision I might have made had the matter come before me, I cannot say that the Master was clearly wrong.

[27] Those are my reasons for judgment and so the appeal is dismissed.

Of note, this result was revisited after the witness subsequently became a party to the litigation.


"Pro Forma" Pleadings Not Enough To Compel MSP Record Production

March 13th, 2012

Further to my previous post on this topic, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether MSP records were producible in a personal injury claim.

Today’s case provides perhaps the most in depth analysis of the issue to date and is worth reviewing in full.  In short the Court held that such records may be disclosable given the right circumstances but a ‘pro forma’ pleading of pre-existing injury is not sufficient to trigger disclosure obligations.

In this week’s case (Kaladjian v. Jose) the Plaintiff was injured in a collision.  The Defendant applied for production of the Plaintiff’s MSP printout.  The Plaintiff’s lawyer had this document but did not produce it arguing it was not relevant.  The Defendant’s application was dismissed at first instance.  The Defendant appealed arguing MSP records were disclosable as a matter of course in a personal injury claim.  Mr. Justice Davies disagreed and dismissed the appeal.  In doing so the Court provided feedback as to the proper procedure when seeking production of such records and gave the following reasons:

[38] Under Rule 7-1(1)(a), a party is now (at least initially) obligated to list only:

(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, …

[39] That change has altered the test in British Columbia for determining whether any document or class of documents must now (at least at first instance) be disclosed.

[40] As stated by Edwards J. in Creed, the former broad test of relevance for disclosure purposes, emanated from the decision in Cie Financière du Pacifique v. Peruvian Guano Ltd (1882), 11 Q.B.D. 55 (Eng. Q.B.) [Peruvian Guano], which required disclosure of documents that “may fairly lead to a line of inquiry which may “either directly or indirectly enable the party…to advance his own case or damage the case of his adversary”

[41] Rule 7-1(1) changed that test for documentary relevance at first instance by requiring listing only of documents that could be used at trial to prove or disprove a material fact and documents the disclosing party intends to rely upon at trial.

[42] I say that the test of documentary relevance is changed “at first instance” because Rule 7-1 also provides processes by which broader disclosure can be demanded of a party under Rules 7-1(11) through (14) under which the court can decide whether, and if so, to what extent, broader disclosure should be made…

[46] The introduction of the concept of proportionality into the present Rules together with the need for a party to satisfy the court that additional document discovery beyond a party’s initial obligations under Rule 7-1(1) must inform the interpretation of Rule 7-1(18). It also satisfies me that cases decided under the former Rule 26(11) are of limited assistance in interpreting and applying Rule 7-1(18) in motor vehicle cases.

[47] It would, in my view, be arbitrary and inconsistent with the objects of the present Rules if the production of the records of a party to litigation in the possession of third parties were to be subject to a pleadings-only Peruvian Guano based test of relevance when more narrow tests govern the production of a party’s own documents…

[61] After considering the authorities and submissions of counsel, I have concluded that the pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the present Rules and will usually also govern issues concerning the initial disclosure obligations of a party under Rule 7-1(1), if challenged by a party under Rule 7-1(10).

[62] I have also concluded that the narrowing of the discovery obligations of parties and most particularly the removal of the Peruvian Guano “train of inquiry” test of relevance will generally require a defendant to provide some evidence to support an application for additional documents, whether demand is made under Rule 7-1(11) or Rule 7-1(18).

[63] A requirement for evidentiary support recognizes the difference between the scope of examination for discovery and the scope of document discovery under the present Rules and will allow considerations of proportionality to be addressed in specific cases.

[64] A requirement for evidentiary support in requests for additional documents and third party records also prevents against unwarranted “fishing expeditions” based solely upon pro formapleadings…

70] The all too common pro forma pleading of a pre-existing condition by defendants is not sufficient without more to require disclosure of MSP records which may prove to be wholly irrelevant to the injuries allegedly suffered by the plaintiff.


"Investigative Stage" Significant Barrier to ICBC Privilege Claims

March 6th, 2012

A trend developing in BC Caselaw is the demonstrated difficulty ICBC has trying to withhold documents in a personal injury lawsuit based on their ‘investigative’ responsibilities.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic.

In this week’s case (Gilbert v. Nelson) the Plaintiff was injured in a 2005 collision with a vehicle.  The Plaintiff was 13 at the time and was riding a bicycle.  Following the collision ICBC investigated the collision and obtained engineering reports and a further report from an independent adjuster.  In the course of the lawsuit the Defendant had access to these documents.  The Defendant refused to produce them claiming litigation privilege.

The Plaintiff brought an application to have these produced.   Master Taylor granted the application finding the documents were created during ICBC’s investigative stage.  In ordering production the Court provided the following reasons:

[35] Saying that litigation is a certainty is not the test for the dominant purpose.

[36] What I do observe from the facts before me is that no counsel was consulted or retained by the defendant or his insurer until after the notice of civil claim was issued in July, 2010.  While the retainer of counsel is not an absolute test as to whether or not documents were created for the dominant purpose of litigation, it is but one factor in this case that indicates that the defendant and his insurer were not preparing for litigation nor directing the course of the defence of a possible law suit, until a notice of civil claim was issued some five years post accident.  One would have thought that the defendants would have sought to establish the dominant purpose by showing on a balance of probabilities that the dominant purpose of the documents was to obtain legal advice or to aid in the conduct of the litigation.

[37] Most certainly the defendant and his insurer had followed a course of investigating the accident, and its dynamics, but other than telephone conversations Ms. Fall had with Mr. Gilbert on June 13 and 15, 2005, there is no evidence before me that the defendant or his insurer made a formal declaration to the Gilbert family by way of letter that liability for the accident was being denied.  In my view, a reasonable person would expect no less especially after the family was told that an assessment of liability would be made after receipt of the traffic analyst’s report which was anticipated to be received by Ms. Fall in August, 2005.

[38] In all of the circumstances, I find that the defendant hasn’t met the onus on him to satisfy me that there exists over either the CWMS notes or the reports currently listed in Part 4 of the Defendant’s List of Documents a litigation privilege, such that disclosure of the documents up to the date of the first letter from counsel for the plaintiff should not be made to the opposite party.  The only caveat will be that all references to reserves are to be redacted.

[39] The plaintiff shall have his costs for preparation for, and attendance at the hearing.


MSP and Pharmanet Printouts Disclosable on a Case by Case Basis

February 23rd, 2012

Two documents that ICBC routinely asks Plaintiff’s to produce in the course of personal injury lawsuits are MSP and Pharmanet Printouts.  These are documents which essentially keep track of all of a Plaintiff’s medical visits and prescription medication fillings.  Does a Plaintiff need to comply with a request to produce these documents?  Reasons for judgement were released last month by the BC Supreme Court, Victoria Registry, addressing this issue finding that these documents are not automatically producible but very well may be depending on the facts of the case.

In last month’s case (Edwards v. Ganzer) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit ICBC requested that the Plaintiff produce her MSP and Pharmanet Printouts for various periods of time.  Ultimately the Plaintiff was required to produce some of these records.  Prior to making the production order Master Bouck provided the following reasons addressing production requests for these records:

[51] Thus, in a personal injury action, a plaintiff’s MSP and Med Profile will not be ordered produced to the defence regardless of the facts of the case. At the very least, there must be some “air of reality” between the documents and the issues in the action: Moukhine v. Collins at para. 22.

[52] Correspondingly, decisions where the production of these kinds of records have been denied will likely have little or no precedential value to the plaintiff here as the facts are bound to differ from those in the case at bar.

[53] Neither of these propositions represents a change in the law since the introduction of the SCCR.

[54] What is new to this discussion is the role that proportionality plays in making an order under Rule 7-1(14). Although not specifically provided for in Rule 7-1, it is only logical that the court should take into account the objects stated in Rule 1?3 (2) when exercising its discretion with respect to compliance with the broader disclosure demand: see Kim v. Lin, 2010 BCSC 1386 at para. 29. Indeed, those objectives have been considered by the court in the decisions already cited.

[55] In terms of relevancy, the plaintiff has already acknowledged the relevancy of the MSP and Med Profile records by disclosing these records on her initial list of documents. It would seem apparent that the plaintiff concedes that this document ought to be produced under the Guano test.

[56] While the plaintiff’s submissions suggest that privacy concerns come into play, there is no evidence from the plaintiff herself (either directly or on information and belief) which might justify aHalliday form of order: Gorse v. Straker, 2010 BCSC 119 at paras. 12, 13 and 36.

[57] Paraphrasing the test set out in Global Pacific, the issue to be determined is whether the MSP and/or Med Profile records sought can properly be said to contain information which mayenable the defendant to advance his case or damage the case of the plaintiff, if it is a document which may fairly lead to a train of inquiry, or if it may have either of these consequences.

[58] Both the evidence and pleadings raised issues of mitigation (i.e. rehabilitation efforts; following professional advice on medication). In that respect, both the MSP and Med Profile record may enable the defence to prove that the plaintiff has failed to mitigate her damages. In addition, these records may serve the purpose described in Creed v. Dorio; that is, to test the credibility and reliability of the evidence presented by the plaintiff to date on her post-accident health.

[59] I have concluded that on the facts of this case, the plaintiff’s MSP record and the post-accident Med Profile ought to be listed and produced pursuant to the demand made under Rule 7-1(11).


ICBC Litigation Privilege Claim Fails Due to "Investigative Stage" Finding

February 15th, 2012

Further to my previous article on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the circumstances when a defence litigation privilege claim will fail due to records being created during ICBC’s “investigative stage” following a collision.

In last week’s case (Bako v. Gray) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit the Defendant listed several documents as privileged.  These included an ICBC adjuster’s notes and further the notes of an independent adjuster hired by ICBC.  The Plaintiff brought an application to produce these records.  The Defendant refused arguing these records were subject to litigation privilege and that they were created for the dominant purpose of preparing for litigation.

Master Caldwell rejected this argument finding the records were more likely created during ICBC’s investigative stage.  In ordering production of the records the Court provided the following reasons:

[5] In Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614 (C.A.) the Court of Appeal approved the reasoning and findings of Master Grist (as he then was) that there is an investigative stage and a litigation stage, that it was proper for the Master to determine when litigation became a reasonable prospect and further to determine when in the overall process the dominant purpose for the creation of documents became the preparation for or pursuit of litigation. The court further confirmed that in making that determination the Master was not bound or obliged to accept the adjusters’ opinions on those central issues to be decided…

[21] In his initial entry note in the defendant’s file on November 21, Mr. Matheson includes the following entries:

DICTATED MY NFA, AND A LETTER TO I/A DON UNRAU, WHOM I HAVE ASKED TO BE MY “LIASON” (sic) WITH ZOLTAN, SO LONG AS HE REMAINS UNREPRESENTED;

IN ANY EVENT, THE PLAN IS VERY SIMPLE. MONITOR ZOLTAN’S PROGRESS & OBTAIN UPDATED CLINICALS & REPORTED (sic) PERIODICALLY…AND HOPEFULLY, SETTLE HIM UNREPRESENTED SOMETIME BEFORE THE 2 YEAR LIMITATIONS PRESCRIBES. LOOKS LIKE ZOLTAN IS ASKING HIS GP TO REFER HIM TO DR. ROBINSON (RE: HIS HA’S)…I’LL BOOK A PRECAUTIONARY IME WITH DR. MICHAEL JONES, “JUST IN CASE”

I DON’T HAVE ANY CONCERNS RE:  CREDIBILITY, BASED ON WHAT I HAVE SEEN TO DATE.

[22] On November 25, 2008 Mr. Matheson made further notes to the file, including:

SO LONG AS MR BAKO REMAINS UNREPRESENTED, AND CONTINUES TO WORK, THE RISK EXPOSURE OF THIS FILE IS MODERATE.

I AM GOING TO RETAINED DON UNRAU, INDEPENDENT ADJUSTER, TO ACT AS MY LIAISON WITH THE PLAINTIFF.

I WILL SET UP A PRECAUTIONARY IME WITH DR MICHAEL JONES (NEUROLOGIST)

[23] These entries clearly indicate that as of late November 2008, Mr. Matheson’s focus was on information gathering and settlement, with both being done quickly and before Mr. Bako retained counsel; when litigation type issues did arise they were referred to as “precautionary” or “just in case”, neither of which is at all consistent with his sworn assertion that he “believed this matter would result in litigation” when he first received the file.

[24] Based on my review of the materials, it is of little import whether Ms. McIntosh or Mr. Matheson had charge of the files between November 10, 2008 and March 16, 2009, or for that matter, September 22, 2009 when the Writ was filed and sent for delivery to ICBC. Nothing in the materials supports Mr. Matheson’s assertion that he had a reasonable basis to determine and that he did determine that there was a reasonable prospect of litigation in this case.

[25] Save and except for references to reserves, the CWMS notes are ordered to be produced in unredacted form up to and including September 22, 2009.

[26] All references to the independent adjuster in November of 2008, centered on him simply being a “liaison” between Mr. Matheson and Mr. Bako, at least for so long as Mr. Bako remained unrepresented; the report is dated shortly after Mr. Bako did retain counsel. Again, I see no support for any conclusion other than that his involvement was related directly to Mr. Matheson’s stated intention to settle the file before Mr. Bako retained counsel. The report is ordered produced.


Document Production Obligations and the New Supreme Court Civil Rules

February 1st, 2012

One of the goals of the New Rules of Court was to make litigation “just, speedy and inexpensive” and to simplify the process.  One area where the Rules have fallen short of this goal is the area of pre-trial document disclosure obligations.  Under the former Rules parties were bound by one consistent (but arguably over-broad) test.  Now parties are met with a host of obligations which were well summarized in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.

In this week’s case (Edwards v. Ganzer) the Plaintiff was injured in a motor vehicle collision.  A dispute arose with respect the Plaintiff’s disclosure obligations.  In resolving the dispute Master Bouck provided the following reasons summarizing the legal disclosure obligations (and dispute process) under Rule 7-1:

[39] Biehl v. Strang is the seminal decision of Punnett J. addressing (mostly) the primary obligation of document disclosure under Rule 7-1(1) (a). The remaining decisions touch upon, if not directly address, the document disclosure obligations under both Rule 7-1(1)(a) and Rule 7-1(14) of the SCCR.

[40] In addition, Master Baker has recently discussed the application of Rule 7-1 in Burgess v. Buell Distribution Corp., 2011 BCSC 1740.

[41] I understand the principles outlined in these various decisions, together with the applicable Rules, to be as follows:

a. The initial production obligation under Rule 7-1 (1) (a) (i) is limited to what is required to prove or disprove a material fact: Biehl v. Strang at para. 14;

b.  Rule 7-1(10) allows the opposing party to issue a written demand requiring the listing party to amend the original list and produce documents that should have been disclosed under Rule 7-1(1)(a)(i);

c.  In addition, Rule 7-1(11) allows the opposing party to issue a written demand requiring the listing party to amend the list and produce documents which ought to be disclosed under a test “close to” that set out in Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63, (the “Guano test”): Global Pacific at para. 9;

d.  The distinction between the two types of disclosure provided for under Rule 7-1 is stated in Global Pacific as follows:

The question is whether a document can properly be said to contain information which may enable the party requiring the document either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, or if it may have either of those two consequences. Therefore, it is acknowledged that the initial disclosure under Rule 7-1(1) relates to a materiality requirement, but that a party can apply to the court, as the defendant did here, for broader disclosure pursuant to Rule 7-1(14).

(my emphasis.)

Para. 9

e.  Both the demand by the requesting party and the response of the opposing party should be set out in writing addressing the terms and criteria used in Rule 7-1. Whether the demand and response provide sufficient particularity is a matter of the court’s discretion;

f.  If an application is brought under Rule 7-1(13) for the listing or production of  documents, the court may either order compliance with the demand, excuse full compliance, or order partial compliance: Rule 7-1(14);

g.  The objectives of the SCCR, including proportionality, may be taken into account by the court when exercising its discretion under Rule 7-1(14). The proportionality rule can be applied to either expand or restrict the required production of documents: Global Pacific citing Whitcombe v. Avec Insurance Managers Inc., 2011 BCSC 204.

[42] Interestingly, a party may be excused from compliance with Rule 7-1(1) generally, but the court is not given the specific power to order compliance with a demand made for the listing and production of the so-called “materiality” documents. Rule 7-1(14) only specifically allows for an order requiring compliance with a broader disclosure demand under Rule 7-1(11): Global Pacific; Burgess v. Buell Distribution Corp. Whether this distinction is an oversight or intentional is difficult to say. It might well be the former, given that Rule 7-1(13) contemplates a compliance order by the court if a demand for the “material” documents is issued. The distinction is more fully canvassed in Burgess v. Buell Distribution Corp. at para. 15.


"Investigative Stage" Trumps ICBC's Litigation Privilege Claim

September 23rd, 2011

Given ICBC’s monopoly over vehicle insurance in BC they typically have to perform multiple roles following a collision including investigating the issue of fault in order to make internal decisions regarding the premium consequences for the customers involved in the crash.  Documents prepared during this ‘investigative‘ stage generally need to be produced during litigation and claims for litigation privilege will fail.  Reasons for judgement were released this week further demonstrating this fact.

In this week’s case (Fournier v. Stangroom) the Plaintiff was injured in a 2007 collision.  In the early days following the crash and well before litigation got underway ICBC retained an engineering firm to inspect the Plaintiff’s vehicle.  The engineering firm communicated their findings to ICBC.  In the course of the lawsuit the Defence lawyer commissioned an expert report from the same firm but did not exchange it with the Plaintiff’s lawyer.

The Plaintiff made the typical document disclosure demands from the Defendants.   These were not complied with in a satisfactory fashion resulting in a Court application.   The Defence lawyer argued that the full file from the engineering firm is subject to litigation privilege.  Master Caldwell disagreed and ultimately ordered better document disclosure inlcuding production of the engineering firms materials documenting their initial investigation.  In making this order Master Caldwell provided the following reasons:

[11] On August 9, 2007 the initial adjuster on the file requested MEA or one of their engineers to examine the plaintiff’s vehicle in order to determine whether the plaintiff was wearing his seatbelt at the time of the collision. The engineer did so, communicated with the adjuster the following day with questions and subsequently reported to the adjuster on September 13, 2007. That adjuster referred to that report as being sufficient for his purposes; the next adjuster, Ms. Madsen referred to the “verbal report” as being “sufficient for the purposes of handling the claim SHORT OF LITIGATION” (emphasis mine).

[12] In early 2011 defence counsel commissioned MEA to prepare an expert report, apparently regarding the seatbelt issue, for possible use at trial; he says that since such a report has now been requested, the engineer’s file material, notes and such are not producible unless and until the report is received and provided to plaintiff’s counsel 84 days before trial.

[13] In cases such as this one, the adjuster or adjusters have duties of investigation on behalf of both the plaintiff and the defendants; there must, almost of necessity, be an initial period of adjusting or investigating to discover the factual matrix within which the adjusters will perform their duties and assess the file and the claims or roles of the interested parties. Absent such period and process of investigation the adjuster can have no reasonable basis upon which to conclude that there is a reasonable prospect of litigation and that all or part of what is done from any given point in time forward is done for the dominant purpose of litigation. In this regard see Hamalainen (Committee of) v. Sippola (1991) 62 BCLR (2d) 254 (BCCA).

[14] These engineers were approached within the first 3 weeks following the collision, clearly within the period of initial investigation and was even seen by at least one of the adjusters as being used for purposes of handling the file short of litigation. The investigative material, notes, correspondence and other such recordings of the engineers were not created at a time when litigation was a reasonable prospect; neither were they created for the dominant purpose of litigation. The fact that counsel has now requested an expert report from MEA does nothing to change that any more than a request to a G.P. or plaintiff’s medical expert that he or she provide an expert report renders that practitioner’s clinical records privileged.

[15] The MEA investigative material, notes, correspondence and working papers which arose between August 9, 2007 and September 13, 2007 inclusive are not subject to a valid claim of litigation privilege; they are ordered to be listed and to be produced to plaintiff’s counsel within 14 days. If there are any other MEA materials which arose between September 14, 2007 and the date when defence counsel commissioned their expert report, those are to be listed with the required clarity, date and description in order that any further claim of litigation privilege can be properly assessed.