ICBC Injury Claims and Your Privacy: The Implied Undertaking of Confidentiality

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues.

When you sue for damages in the BC Supreme Court in an ICBC Injury Claim you are subject to certain rules of compelled disclosure.  These rules require you to give verbal, documentary and even physical discovery (independent medical exams).
When ICBC gets access to this private information in the lawsuit process it is subject to an “implied undertaking of confidentiality“.  What this means is this information is not to be used by ICBC for purposes outside of the lawsuit.
If you have a further ICBC Claim involving similar injuries making the previous records relevant, can ICBC provide these records to their lawyer to be used against you in a subsequent claim?  Reasons for judgement were released today addressing this issue and the answer is no, at least not without your consent or a court order.
In today’s case (Chonn v. DCRS Canada Corp dba Mercedez-Benz Credit Canada) the Plaintiff had a history of ICBC Injury Claims.  In the most recent claim the Defence Lawyer gathered documents from the previous claims and intended to use them in the current lawsuit.  The Plaintiff objected to this.  A motion was brought before the BC Supreme Court and Mr. Justice Voith was asked to decide whether “the Insurance Corporation of British Columbia (“ICBC”), which, by operation of statute, had conduct of the defence of each of the Earlier Actions and has conduct of the Current Action, can list the documents it obtained from the plaintiff in the Earlier Actions without first obtaining the plaintiff’s consent or leave of the court.”
In answering this question Mr. Justice Voith summarized the law behind the “implied undertaking of confidentiality” and set out the limits of ICBC’s use of records in subsequent claims.  The highlights of the decisions are set out below:

[25] A party who has documents from earlier litigation that are impressed with the implied undertaking simply cannot make use of those documents without the concurrence of the party from whom they were obtained or leave of the court. The implied undertaking protects documents or oral discovery obtained in earlier litigation from being used for any purpose “collateral” to that litigation. Thus, the documents cannot be used for internal strategic review in subsequent litigation. They cannot be used for the purposes of drafting pleadings. They cannot be sent to counsel for the purposes of obtaining an opinion in new litigation. All of these obligations bound the named defendants in the Current Action as well as ICBC in its conduct of that litigation.

[39] Once one recognizes that a central focus of the implied undertaking rule is to prevent the use of documents in subsequent litigation without consent or leave of the court, it is not sound to assert that Rule 26 displaces the application of the implied undertaking rule. Rule 26 is a rule of broad application and it governs virtually all civil actions. There are like provisions in most other jurisdictions. The result advanced by the defendants would significantly curtail the efficacy and ambit of the rule.

[40] The submission of the defendants would also significantly erode both policy objectives underlying the rule. It would impair the privacy interests of the party to the earlier action who made disclosure and gave discovery evidence. It would also subvert the policy objective of encouraging parties to “provide a more complete and candid discovery” referred to inJuman at para. 26.

[41] The intended purview of the “statutory exceptions” rule which is referenced by the Court in Juman, is limited to specific legislation which compels disclosure and which expressly overrides the privilege and/or confidentiality concerns of the holder of the information. Rule 26 does not achieve these objects. Though it requires disclosure from parties to litigation, both Rule 26(2) and the structure of Form 93 recognize the ongoing entitlement of a party to maintain a claim for privilege. While documents covered by an implied undertaking are not, strictly speaking, privileged, I believe that it would be appropriate for a party, from whom document disclosure is sought, to list those documents in its possession which are subject to an implied undertaking under part 3 of its list of documents.

This case also addressed the remedies available when there is a breach of an implied undertaking and these are worth reviewing for anyone interested in BC Privacy Law.

Chonn v. DCRS Canada Corp dba Mercedez-Benz Credit Cana, giving records to ICBC, icbc injury claims, ICBC Privacy Issues, implied undertaking of confidentiality, Mr. Justice Voith

Comments (46)

  • W88 Thailand

    Very well written post. It will be helpful to anybody who usess it, as well as myself. Keep up the good work – for sure i will check out more posts.

  • Success

    Thank you for the sensible critique. Me & my neighbor were just preparing to do a little research about this. We got a grab a book from our local library but I think I learned more clear from this post. I am very glad to see such magnificent info being shared freely out there.

  • marcel van hooijdonk

    Can I simply say what a aid to find somebody who actually knows what theyre talking about on the internet. You undoubtedly know how you can deliver a difficulty to light and make it important. Extra folks must learn this and understand this aspect of the story. I cant believe youre not more well-liked because you positively have the gift.

  • beast TV trial

    Excellent post. I was checking continuously this blog and I am impressed! Extremely helpful info specially the last part 🙂 I care for such info much. I was seeking this certain information for a long time. Thank you and good luck.

  • 야마토 릴게임

    I in addition to my friends ended up looking through the best tactics from your web blog while immediately got a horrible feeling I had not expressed respect to the website owner for those tips. Most of the guys became certainly thrilled to study all of them and already have pretty much been enjoying these things. Appreciate your being indeed kind as well as for obtaining some exceptional topics millions of individuals are really desirous to understand about. Our honest apologies for not expressing appreciation to you earlier.

  • agen poker online

    Hmm it seems like your blog ate my first comment (it was extremely long) so I guess I’ll just sum it up what I had written and say, I’m thoroughly enjoying your blog. I too am an aspiring blog writer but I’m still new to everything. Do you have any tips and hints for rookie blog writers? I’d certainly appreciate it.

  • poker online

    Its like you read my thoughts! You seem to understand a lot about this, like you wrote the e-book in it or something. I feel that you could do with some percent to power the message home a little bit, however other than that, this is great blog. An excellent read. I will certainly be back.

  • poker

    of course like your website however you need to check the spelling on quite a few of your posts. Several of them are rife with spelling problems and I find it very troublesome to tell the reality nevertheless I’ll surely come back again.

  • situs poker online

    Hi, i feel that i saw you visited my site thus i came to “go back the want”.I’m trying to to find things to enhance my website!I suppose its good enough to use a few of your ideas!!

  • online poker

    Thanks for some other informative web site. Where else may just I am getting that type of information written in such an ideal means? I have a mission that I am just now operating on, and I’ve been on the look out for such information.

  • m w88

    I do agree with all of the ideas you have presented in your post. They’re very convincing and will certainly work. Still, the posts are too short for novices. Could you please extend them a bit from next time? Thanks for the post.

  • voblerone

    Thanks a lot for the helpful write-up. It is also my belief that mesothelioma has an extremely long latency interval, which means that the signs of the disease may not emerge until 30 to 50 years after the 1st exposure to asbestos fiber. Pleural mesothelioma, that is certainly the most common variety and is affecting the area throughout the lungs, could cause shortness of breath, chest pains, plus a persistent coughing, which may produce coughing up blood vessels.

  • затворы sung do

    Hey very nice site!! Man .. Excellent .. Amazing .. I will bookmark your web site and take the feeds also…I’m happy to find numerous useful information here in the post, we need develop more strategies in this regard, thanks for sharing. . . . . .

  • 토토사이트 추천

    I have been surfing online more than three hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my view, if all web owners and bloggers made good content as you did, the web will be a lot more useful than ever before.

  • Wedding Catering

    Thanks for these pointers. One thing I additionally believe is that often credit cards presenting a 0 rate of interest often bait consumers along with zero interest rate, instant authorization and easy internet balance transfers, however beware of the number one factor that is going to void your own 0 easy street annual percentage rate and throw you out into the bad house rapid.

  • lifeguard classes

    With every little thing which appears to be building inside this subject matter, a significant percentage of points of view are generally very stimulating. Nevertheless, I am sorry, but I can not give credence to your whole strategy, all be it exhilarating none the less. It appears to everybody that your comments are actually not completely validated and in actuality you are generally yourself not even completely convinced of your argument. In any event I did take pleasure in examining it.

  • 안전놀이터 사이트

    I precisely wanted to appreciate you all over again. I am not sure what I might have carried out in the absence of those creative ideas provided by you concerning my topic. It became a daunting situation in my circumstances, but finding out this skilled technique you processed that made me to leap over contentment. I will be grateful for this work and even hope that you realize what a great job your are carrying out training people thru your site. Most probably you’ve never got to know all of us.

  • 먹튀폴리스검증업체

    Hi, Neat post. There’s a problem with your website in internet explorer, would test this… IE still is the market leader and a good portion of people will miss your excellent writing because of this problem.

  • W88 ทางเข้า

    I learned more something totally new on this fat reduction issue. A single issue is that good nutrition is extremely vital while dieting. A tremendous reduction in junk food, sugary meals, fried foods, sweet foods, red meat, and whitened flour products can be necessary. Possessing wastes parasites, and poisons may prevent aims for fat loss. While selected drugs in the short term solve the problem, the unpleasant side effects will not be worth it, and they never offer you more than a momentary solution. It is just a known incontrovertible fact that 95 of diet plans fail. Thanks for sharing your notions on this blog.

  • 야마토게임

    Heya i am for the first time here. I found this board and I find It really useful & it helped me out much. I hope to give something back and help others like you aided me.

  • watch game of thrones season 7

    Hi! This is kind of off topic but I need some guidance from an established blog. Is it tough to set up your own blog? I’m not very techincal but I can figure things out pretty quick. I’m thinking about setting up my own but I’m not sure where to begin. Do you have any ideas or suggestions? Thank you

  • 우리카지노 계열

    Hey would you mind letting me know which web host you’re working with? I’ve loaded your blog in 3 completely different web browsers and I must say this blog loads a lot quicker then most. Can you recommend a good internet hosting provider at a reasonable price? Cheers, I appreciate it!

  • lifeguard training

    I intended to send you the very little remark just to thank you very much over again for your personal pleasant opinions you’ve documented above. It has been certainly unbelievably generous with people like you to allow openly all that most of us would have made available for an e-book to help make some profit on their own, specifically considering that you might have done it if you considered necessary. These suggestions as well acted to provide a good way to be certain that the rest have the same dreams like mine to see more in regard to this matter. I think there are millions of more enjoyable situations in the future for those who see your website.

  • 메이저토토

    When I originally commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I get three e-mails with the same comment. Is there any way you can remove people from that service? Many thanks!

  • 안전토토사이트

    Thanks a lot for providing individuals with an extremely special opportunity to read from this site. It is always so kind and as well , packed with a lot of fun for me personally and my office colleagues to visit the blog a minimum of three times in a week to learn the new items you have. And of course, I’m just at all times fulfilled for the astonishing solutions you serve. Selected 1 tips in this posting are essentially the most efficient we have all had.

  • smco magnets

    I am often to blogging and i actually respect your content. The article has really peaks my interest. I am going to bookmark your site and keep checking for new information.

  • custom tshirts

    I was just seeking this info for some time. After six hours of continuous Googleing, finally I got it in your website. I wonder what’s the lack of Google strategy that don’t rank this type of informative sites in top of the list. Normally the top sites are full of garbage.

  • 먹튀 폴리스

    you are truly a good webmaster. The web site loading velocity is incredible. It seems that you are doing any distinctive trick. Moreover, The contents are masterwork. you have performed a fantastic job in this topic!

  • nonton film

    It’s actually a great and useful piece of information. I’m glad that you shared this useful information with us. Please keep us up to date like this. Thanks for sharing.

  • 메이저사이트

    Normally I don’t read article on blogs, but I wish to say that this write-up very forced me to try and do so! Your writing style has been amazed me. Thanks, quite nice article.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer