ICBC's "Casual Disregard" of Court Order Results in Steep Costs Punishment

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, hitting ICBC with a steep costs award for the “casual disregard” of a Court disclosure order.
In today’s case (Norris v. Burgess) the Plaintiff was injured in a 2010 collision and sued for damages.  Prior to trial ICBC offered to settle the claim for $678,500.  The Plaintiff rejected this offer and proceeded to trial where a jury awarded $462,374.  After statutory Part 7 deductions the amount was reduced by $70,196.
Normally where a Plaintiff is awarded less than a defence formal settlement offer they are stripped of some of their costs and sometimes ordered to pay some of the Defendant’s costs.  ICBC sought such a result but the Court refused.  Mr. Justice Funt instead ordered that ICBC pay the Plaintiff an additional $155,340.86 in ‘special costs’ because the insurer disregarded a Court order to produce surveillance evidence.  In reaching this decision Mr. Justice Funt provided the following reasons:
[65] As noted, at the October 20, 2015 trial management conference, Justice Koenigsberg ordered the listing and description of any surveillance or video to occur on or before October 23, 2015. The existence of the 2015 Video was not disclosed until the start of the fourth week of trial and was, as Mr. Miller stated, harmful to the defence.
[66] ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province.
[67] A simple “pilot check” by ICBC, possibly in the form of an email or call to Mr. Levy, a review of its paid surveillance video invoices, or a review of its file notes, would have revealed the existence of the 2015 Video. The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.
[68] Mr. Miller stated that an ICBC adjuster often handles a large number of files and that this may explain the late disclosure of the 2015 Video. If ICBC adjusters are overworked and therefore prone to make mistakes, then it was incumbent on ICBC, on being told by its counsel of the October 20, 2015 Court Order, to ensure that a mistake had not been made.
[69] The late disclosure affected the efficient administration of justice. It required plaintiff’s counsel to consider the plaintiff’s options, and likely discuss and receive instructions on a significant matter just as the plaintiff’s case was about to close, rather than be focused on the conduct of the plaintiff’s case..

[75]         When a jury trial is disrupted and affected by the actions of a party, the court’s rebuke or reproof is more likely warranted.

[76]         The reputation of the court was also affected. Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.

[77]         Finally, the video surveillance for all three years was central to the trial generally. Of course, the actual weight given to this evidence remains in the jury room, as it properly must.

[78]         In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.

 
 

bc injury law, Mr. Justice Funt, Norris v. Burgess, special costs

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ERIK
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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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