Defendant Statement to ICBC Regarding Crash Details Ordered to be Produced

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, ordering production of a statement from a Defendant to ICBC to be disclosed to the Plaintiff in a personal injury lawsuit.

In today’s case (Canning v. Mann) the Plaintiff was injured in a crash and sued for damages.  The Defendant provided ICBC a statement detailing the circumstances of the crash.  The Defendant refused to provide the statement to the Plaintiff in the lawsuit arguing it was privileged.   The court ordered production noting there was insufficient evidence to establish litigation privilege.  In ordering the statement to be disclosed Mr. Justice Basran provided the following reasons:

[6]             This principle was elaborated upon in Janson Estate v. Kvist, 2018 BCSC 1701, at para. 33.  Justice Saunders held that the party seeking to assert litigation privilege is required to file affidavits from those who have personal knowledge of the circumstances that are said to create the privilege.  This could include the adjuster who took the information from the insured or someone else with personal knowledge of the policies surrounding the instruction of independent adjusters and the obtaining of statements. 

[7]             In this case, the defendant relies on an affidavit provided by a legal assistant at the law firm of counsel for the defendant.  This affidavit attaches copies of ICBC claim centre notes, with some portions redacted.  This affidavit indicates that an independent adjuster, Angela Shears, took the statement of the defendant that is in issue.

[8]             I note that the affidavit provided is not the affidavit of Ms. Shears, so there is no direct evidence of the dominant purpose for which this statement was produced. 

[9]             The claims centre notes appended to this affidavit discuss tort limits, vehicle damage, liability, and the plaintiff’s injuries, among other things.  However, it is not at all clear, from a fair reading of these notes that ICBC created this document for the dominant purpose of litigation such that any future documents that they created, such as the statement that is the subject of this production application, must necessarily be for the dominant purpose of litigation.

[10]         The defendant has not brought forward evidence that establishes that the statement was produced for the dominant purpose of litigation.  The evidence it relies on suggests that there could have been multiple reasons why the claims documents were produced.  It certainly does not clearly establish that litigation was the dominant consideration from the date this claims document was produced going forward. 

[11]         I order that the statement of the defendant dated February 19, 2016 be produced to the plaintiff on the basis that the defendant has not established the dominant purpose for its production was to obtain legal advice or aid in the conduct of litigation and it is, therefore, not subject to litigation privilege.

bc injury law, Canning v. Mann, litigation privilege, Mr. Justice Basran

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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