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Multi-Disciplinary Medical Assessment Denied In ICBC UMP Claim

Written by admin on . Posted in BCSC Civil Rule 7, ICBC UMP Cases, independent medical exams, Uncategorized. 61 Comments on Multi-Disciplinary Medical Assessment Denied In ICBC UMP Claim

Reasons for judgement were released last week in an ICBC UMP claim dealing with multiple defence medical exams in the context of a serious injury claim.
In last week’s case (G v. ICBC) the Claimant suffered a “severe traumatic brain injury” in a 2008 collision.  The at fault motorist was underinsured and the Claimant applied for payment of damages under his own UMP coverage with ICBC.
In the course of arbitration the Plaintiff agreed to be assessed by five different physicians of ICBC’s choosing.  These included two neuropsychologists, a neurologist, a psychiatrist and a physiatrist.  ICBC then requested a further assessment, specifically a Multi-Disciplinary Fetal Alcohol Syndrome Disorder Assessment over the course of two days.  The Claimant refused resulting in an ICBC application to compel attendance.
The parties agreed to apply the BC Supreme Court Rules in the course of the arbitration (click here to read an article discussing the lack of jurisdiction for an UMP Arbitrator to compel an independent medical exam when the BC Supreme Court Rules are not used).  In dismissing the application Arbitrator Yule canvassed some of the well known authorities considering BC Supreme Court Rule 7-6(1) and (2).  Arbitrator Yule provided the following summary of the applicable legal principles:
49…
1.  An order for a subsequent medical exam is discretionary but the discretion must be excercised judicially;
2.  Independent medical exams are granted to ensure “a reasonable equality between the parties in the preparation of a case for trial”; reasonable equality does not mean that a defendant should be able to match expert for expert or report for report;
3.  A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert; there must be some question or matter that could not have been dealt with at the earlier examination; and
4.  There is a higher standard required where the Defendant seeks subsequent medical exams.
Arbitrator Yule went on to rule that the playing field was reasonably equal after five ICBC directed medical exams such that a further exam was not warranted.  He specifically pointed out that ICBC’s experts already opined on the issue of pre-existing fetal alcohol disorder without reservation and a further report would simply seek to bolster these opinions.
As of today’s date this judgement is not yet publicly available.  As always, I’m happy to provide a copy to anyone who contacts me and requests one.


Contributory Negligence Finding Does Not Reduce Deductions in ICBC UMP Claim

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 70 Comments on Contributory Negligence Finding Does Not Reduce Deductions in ICBC UMP Claim


In my ongoing efforts to summarize historic UMP Arbitration decisions, I have recently been provided a 2005 arbitration award dealing with several issues including the deduction of CPP benefits in circumstances where a Plaintiff was found contributorily negligent.
In the 2005 case (H v. ICBC) the Claimant was injured in a 1996 collision.  His claim proceeded to trial and his damages were assessed at just over $316,000 by the Jury.  The Plaintiff was also found 10% contributorily negligent for failing to wear a seat belt.
The Defendant was underinsured and the Plaintiff applied under his own UMP Coverage for payment of damages.  The Plaintiff had received CPP disability benefits of just over $65,000.  ICBC sought to deduct the whole of this amount from the Plaintiff’s UMP claim.  The Plaintiff opposed arguing that only 90% of the past payments should be deductible in keeping with the Jury’s finding.
Arbitrator Yule disagreed with the Plaintiff finding CPP benefit deduction can’t be reduced due to a contributory negligence finding.  In coming to this conclusion Arbitrator Yule provided the following reasons:
8…Section 148.1(5) provides that an award of UMP compensation shall not exceed the amount of damages awarded, “minus the sum of the applicable deductible amounts”.  As noted previously, one of the deductible amounts is an amount to which the insured is entitled under the Canada Pension Plan.  On its plain wording, the full amount of the disability benefits to which the Claimant is entitled under the Canada Pension Plan are to be deducted from his UMP Claim.  There is nothing in the wording of the UMP Regulations to suggest that deductible amounts are to be reduced in accordance with the percentage recovery of the Claimant.  As the Respondent correctly argues, Part 7 payments, which a re also a deductible amount, are deducted in full regardless of the percentage recovery of a Claimant.
Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Discovery Evidence and the Principled Exception to the Hearsay Rule

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.


As previously discussed, one of the limits of examination for discovery evidence at trial is that it is generally only admissible against the person being examined.   Rule 12-5(46) permits the Court to make exceptions to this restriction in appropriate circumstances.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, addressing one such exception.
In the recent case (Yamakami v. Whittey) the Plaintiff was injured in an intersection crash.  Fault was contested.  In the course of the lawsuit the Defendant was examined for discovery.  Prior to trial the Defendant died.
The Defendant’s lawyer wished to rely on his examination transcript at trial in support of the Defence case.  Mr. Justice Fitch allowed this finding it was necessary to do so.  Interestingly, although the Court admitted the evidence finding that an examination for discovery created the necessary safeguards to meet the principled exception to the hearsay rule, the Court ultimately placed little weight on the Defendant’s version of events.  In allowing the evidence to be introduced Mr. Justice Fitch provide the following reasons:
[3] Mr. Whittey, who was 81 years of age when the accident occurred, died before trial but after his examination for discovery was completed on May 11, 2010. Counsel for the defendants applied at the outset of the trial to have his examination for discovery admitted in evidence for the truth of its contents under the principled approach to the hearsay rule. The application was opposed. As Mr. Whittey was deceased at the time of trial, the necessity criterion was met. Counsel for the plaintiff argued that despite the existence of process-based substitutes compensating for the loss of an ability to engage in contemporaneous cross-examination of the defendant (the oath, cross-examination and the existence of a verbatim record of the examination for discovery) the evidence Mr. Whittey gave on the examination for discovery was so inherently unreliable that the test of threshold reliability at the admission stage was not met. In oral reasons for judgment delivered November 4, 2011, I concluded that the process-based compensators present in this case provided a satisfactory basis for evaluating the reliability of the evidence in issue. Accordingly, I exercised my discretion to admit the evidence but made clear that it was for me, at the end of the day, to determine the ultimate or actual reliability of the evidence and the weight it should be accorded.

$30,000 Non-Pecuniary Assessment for Lingering Back Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, Uncategorized. 43 Comments on $30,000 Non-Pecuniary Assessment for Lingering Back Injury

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a lingering back injury caused by a motor vehicle collision.
In last week’s case (Sidhu v. Johal) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the offending motorist.  Although the Court rejected the Plaintiff’s evidence as to the severity and frequency of his complaints Madam Justice Fitzpatrick accepted the Plaintiff suffered from lingering back pain which flared with heavier activity.  In assessing non-pecuniary damages at $30,000 the Court provided the following reasons:

[142] After having considered the evidence from Mr. Sidhu, the evidence of his independent witnesses and the medical evidence referred to above, I also find as a fact that Mr. Sidhu suffered the following injuries as a result of the accident and that those injuries were and are as follows:

a)       he suffered driving anxiety for a few days;

b)       he suffered headaches for approximately three weeks;

c)       he suffered pain to his ribcage or chest which was severe in the first three weeks but decreased from that time and was resolved within six months;

d)       he suffered shoulder pain which was resolved within a few weeks and neck pain which was resolved within two months;

e)       he suffered constant and severe pain in his back or lower back immediately following the accident which gradually became intermittent in the two months following the accident;

f)        since August 2007, Mr. Sidhu’s back problems have continued to improve; and

g)       following December 2007, Mr. Sidhu’s back pain was resolved for the most part, however, Mr. Sidhu continues to experience discomfort and mild pain in his back or lower back from time to time on a fairly infrequent basis, which increases to the point of severity depending on his physical fitness (based on his exercise regimen) and depending on the amount of exertion of heavy physical labour.

[143] I specifically reject Mr. Sidhu’s contention that he experienced constant and severe back pain for one and a half years after the accident and that he continues at this time to suffer sharp or severe back pain three to four times per week…

[157] I find that Mr. Sidhu is entitled to non-pecuniary damages in the amount of $30,000.

Hiring Multiple Lawyers Means Paying Multiple Lawyers

Written by admin on . Posted in Uncategorized.


As previously discussed, if you are unhappy with your representation in an ICBC claim and are considering changing lawyers a key consideration to take into account is the amount of legal fees you will need to pay.  Hiring multiple lawyers typically means paying multiple lawyers.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Herman v. Ian Sisett Law Corporation) the Plaintiff was injured in a 2004 motor vehicle collision.  She hired the Defendant law firm to represent her.  She did so on a contingency basis and the contract contained some of the typical provisions dealing with fees in the event the relationship terminated prior to settlement.
In the course of representation a conflict of interest became apparent and the lawyer could no longer represent the Plaintiff.  She hired a second lawfirm who gave an undertaking to protect the fee of the first firm.  The Plaintiff then changed lawyers again hiring a third firm.   The third firm gave no undertaking to protect the account of the first firm.
Ultimately the claim settled while the third firm represented the plaintiff and she paid their account.  The first firm then sent the client a final account of $62,500 for services rendered.   The parties could not agree on payment and the first lawyer brought an application for the third lawyer to produce their full file.  Mr. Justice Burnyeat found that this was an appropriate order to make to help determine a fair amount to be paid to the first lawyer.  In doing so the Court provided the following reasons:

[18] Here, there was no undertaking provided by Mr. Gordon that the fees of Sisett would be protected.  In that regard, the only undertaking to Sisett came from Becker Mathers.  Even though there was no such undertaking available to Sisett, I am satisfied that it would only be possible for Sisett to set a statement of account which was reasonable if the total amount of the settlement, any contingency fee arrangement in effect, and an outline of what work had been undertaken by Mr. Gordon was available.

[19] I am satisfied that this approach is in accordance with the decision in McQuarrie, Hunter v. Lord Estate (1983) 41 B.C.L.R. 123 (C.A.) where the trial judge ordered the Defendants to pay to the original firm the sum calculated on a quantum meruit basis immediately after taxation and where the Defendants appealed the ruling of the trial judge.  The question which was before the Court was described as follows:

The essential point at issue before us, therefore, is whether a solicitor who has been discharged without cause from a contingency fee contract is entitled to recover his fees on a quantum meruit basis prior to the conclusion of the action in which he was originally retained (at para. 6).

The question then arises: What compensation, if any, is the discharged solicitor entitled to, and at what time? (at para. 13).

[20] The Court concluded that the first firm would have to wait until after the disposition of the action.  On behalf of the Court, Nemetz C.J.B.C. stated in this regard:

While an obligation to pay arises on discharge, the client and solicitor await the completion of the lawsuit, and the result obtained becomes a factor in determining the value of the services of the original solicitor.  On this approach, no money is due until the value of the services has been determined.

I prefer this approach because of the historic recognition of the solicitor-client relationship as a very special one.  It is a relationship based on confidence and trust.  The dignity and integrity of the legal profession demand that the interests of the client be fully protected.  The relationship is such that the client is justified in seeking to dissolve it whenever he ceases to have absolute confidence in his solicitor.  The fact that the solicitor has rendered valuable services under his employment, or that the client is indebted to him for these services does not deprive the client of this right.  If, however, the client were to become liable to pay the reasonable fees of the solicitor at the time of discharging him, the client would be forced to choose between continuing the employment of a solicitor in whom he has lost faith or, in some cases, discontinuing his action.  This would defeat the underlying rationale of contingency fees.  In addition, if responsibility to pay reasonable fees were to accrue immediately upon discharge and the subsequent damage award to the client were substantially less than that anticipated, a financial disaster for the client may occur.  The risk of success or failure would have been shifted entirely to the shoulders of the client.  It is more consistent with the special relation between solicitor and client and the underlying rationale of a contingency fee agreement to have both parties await the happening of the contingency.  The interests of both parties can then be balanced in light of the outcome of the litigation.

Another reason for preferring this approach is that it does not require the taxing officer either, on the one hand, to tax the solicitor’s account as if the contingency was irrelevant, or, on the other hand, to hear the evidence that would be led in the principal action so that he can anticipate the contingency and assess the fee that the solicitor would have received if he had not been discharged.

Knowing the amount of the award, determined either by the Court or by settlement, the Registrar will be able to settle the amount of the bill of the contracting solicitor in the light of the recovery obtained by the client.  If nothing is recovered or the amount recovered is a modest one, the Registrar may nevertheless award the contracting solicitor some amount for his work.  If, on the other hand, a client, who sees success coming up, discharges his solicitor on the eve of the trial, the lack of any risk remaining in the contingency will be of very great significance.

(at paras. 13-16)

[21] In order to prepare a fair and reasonable bill on a quantum meruit basis, Sisett was entitled to have the information that it had requested:  the details of the settlement; the details of the contingency arrangement that was in effect between Ms. Herman and Slater Vecchio; the time records maintained by Slater Vecchio; any detailed account provided by Slater Vecchio; the fees and disbursements charged by Slater Vecchio; and any fees and disbursements paid to Becker Mathers for the work that they had undertaken.

$35,000 Non-Pecuniary Assessment For 3 Year Whiplash Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


Keeping this site’s whiplash database current, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a soft tissue injury claim as a result of a motor vehicle collision.
In last week’s case (Carter v. Zhan) the Plaintiff was involved in a 2006 collision.  Fault was admitted.  The Plaintiff was injured in the crash and alleged the consequences were permanent.  She sought damages between $149,000-$206,000 at trial.  Despite rejecting the severity of the Plaintiff’s claims, Mr. Justice Verhoeven accepted the Plaintiff did suffer a whiplash injury of 36 months duration.  In assessing non-pecuniary damages at $35,000 the Court provided the following reasons:
[99] On the evidence, I accept that the plaintiff has established to the requisite standard of proof in a civil case that the accident resulted in soft tissue injuries which persisted for approximately 36 months after the accident, gradually lessening over that recovery period.  Thereafter, I conclude that she suffered from only minor lingering effects.  It follows that I am not satisfied that the plaintiff has established that her injuries are essentially permanent as she claims…

[122] In determining an appropriate non-pecuniary award to compensate the plaintiff for her losses, I set out my findings in relation to the relevant Stapley factors:

1. the plaintiff was 32 years old at the time of the accident(she is now 37);

2. she suffered mild to moderate soft tissue injuries to her neck, jaw, shoulders, back, and pelvic girdle;

3. these injuries caused her mild to moderate pain and discomfort in her neck, jaw, shoulders, back, and pelvic girdle, primarily on the left side of her body, for approximately three years and minor lingering effects thereafter, with the pain lessening gradually over those three years.  She also occasionally suffered minor chest stiffness and soreness and headaches;

4. the plaintiff’s injuries are not permanent and she is not disabled as a result of the accident;

5. the injuries caused the plaintiff some emotional pain and loss of enjoyment of life over the three-year recovery period;

6. the plaintiff was also somewhat restricted in her physical activities over that time; and

7. the plaintiff did not suffer a loss of lifestyle as a result of her injuries.

[123] Bearing in mind these factors, I find the following cases provide some assistance in determining the appropriate range for non-pecuniary damages: Cameron v. Savory, 2008 BCSC 1708, [2008] B.C.J. No. 2429 [Cameron]; Dhanoa (Litigation guardian of) v. Hui, 2008 BCSC 907, [2008] B.C.J. No. 1307 [Dhanoa]; Mullican v. Steuart, 2003 BCSC 289, [2003] B.C.J. No. 416 [Mullican]; Lane v. Ford Credit Canada Leasing Limited et al., 2003 BCSC 701, [2003] B.C.J. No. 1042 [Lane]; Gray v. Balsdon, [1996] B.C.J. No. 667 (S.C.) [Gray]; and Johnston v. Day, 2002 BCSC 480, [2002] B.C.J. No. 920 [Johnston].

[124] Considering all the circumstances, and the principles enunciated in Stapley, I assess Ms. Carter’s non-pecuniary loss at $35,000.

$10,000 Non-Pecuniary Assessment for 4 Month Soft Tissue Injury; Costs Denied Under Rule 14-1(10)

Written by admin on . Posted in BCSC Civil Rule 14, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries sustained in consecutive motor vehicle collisions.
In last week’s case (Liu v. Thaker) the Plaintiff was involved in two collisions, the first in October of 2007 and the second a month later.  Both collisions caused relatively minor soft tissue injuries which largely recovered in 4 months.  In assessing Non-Pecuniary Damages at $10,000 Mr. Justice Schultes made the following findings:

[58] On the whole I would say that the plaintiff’s case offered persuasive evidence of relatively minor soft-tissue injuries, rather than the unpersuasive evidence of more serious injuries that is sometimes seen in motor vehicle injury cases.

[59] I find that Mr. Liu did suffer the injuries that he described and that they were caused by the two accidents for which the defendants have admitted responsibility. These were soft-tissue injuries to the neck and shoulder which had largely resolved by the end of February 2009, about four months after the first accident…

[65] In all the circumstances, balancing the various factors, and having due regard to the range, but not being straight jacketed by it, I consider an award of $10,000 for non-pecuniary damages to be appropriate in this case.

Paragraphs 75-82 of the reasons for judgment are also worth reviewing for the Court’s reasoning in denying the Plaintiff costs findng there was no ‘sufficient reason’ to sue in Supreme Court pursuant to Rule 14-1(10).
Lastly, paragraph 56 is worth reviewing for the Court’s comments addressing the Defendant’s ‘low velocity impact’ testimony.  Mr. Justice Schultes provided the following criticism:
[56] Except as to the bare contours of his involvement in the first accident, I did not find Mr. Thaker’s evidence credible. He sought to portray the impact as so slight as to be virtually negligible — a mere touching of the vehicles, in his view. But he also sought to absolve himself of the responsibility of having caused the accident, even though liability has been admitted on his behalf. This suggested somewhat of a self-serving perspective on his part, which is at odds with the reality of the situation. It also made no sense to me, if the impact had been as trivial as Mr. Thaker claimed, that he would have asked Mr. Liu if he was okay afterwards, as he described. On his version of a mere touching between the vehicles, such an inquiry would have been completely unnecessary.

BC Court Orders Production of Private Facebook Photos in ICBC Claim

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the production of private social media data in the context of a personal injury claim.
In today’s case (Fric v. Gershman) the Plaintiff sued for damages for injuries sustained in a 2008 collision.  The Plaintiff apparently suffered from “chronic severe headaches and soft-tissue injuries” following the crash.  The Plaintiff, who was a first year law school student at the time of the crash, plead damages for various losses including diminished earning capacity.
ICBC sought production of the Plaintiff’s entire Facebook profile, vacation photos and metadata related to digital photos in her possession.  Master Bouck held that while some of this relief was too broad, relevant photos need to be disclosed and ordered production accordingly.  In doing so the Court provided the following reasons:

[54] After considering all of these authorities, I have concluded that some of the plaintiff’s photographs, including those held on the private Facebook profile, ought to be disclosed.

[55] The pleadings define the issues between the parties. Here, there is also evidence on which the court can exercise its discretion to allow for broader document discovery under Rule 7-1(14).

[56] In her pleadings, the plaintiff alleges that the accident led to not only loss of amenities of life, but also loss of mobility and diminished earning capacity.

[57] The diminished capacity is said to be the result of pain and fatigue. Ms. Fric claims that the injuries effected her academic achievements and thus ability to secure employment after her second year of law school. The ongoing symptoms continue to impact Ms. Fric’s working capacity.

[58] How this diminished capacity is measured is yet to be determined. However, the defence fairly argues that a damage award for a young professional’s diminished earning capacity can be very significant. Although plaintiff’s counsel downplays this aspect of the claim, there is no suggestion that the plea is to be withdrawn.

[59] Ms. Fric has also testified that the accident-related injuries have negatively impacted her social life and ability to perform certain sports or recreational activities, either pain-free or at all. While Ms. Fric has remained an active individual, the symptoms from the accident-related injuries are allegedly unresolved. Obviously, the ongoing complaints will influence the award claimed for pain and suffering.

[60] Photographs which show the plaintiff engaging in a sporting or physical recreational activity — from hiking to scuba diving to curling to dancing — are relevant in discovering the plaintiff’s physical capacity since the accident.

[61] I do not agree with the plaintiff’s submission that such information is only relevant when there is a claim or evidence of total disability.

[62] In terms of proportionality and ensuring a fair trial on the merits, the defence should be given an opportunity to discover the plaintiff on all aspects of her physical functioning and activity level since the accident.

[63] Allowing such discovery does not preclude the plaintiff from arguing that some of the produced photographs are inadmissible at trial. The trial judge may accept that the prejudicial effect of a particular photograph outweighs any probative value.

[64] Nonetheless, the order sought by the defendants is too broad…

[70] In my view, the appropriate relief is to order Ms. Fric to produce an amended list of documents which identifies the photographs and video in her possession and control in which in which she is featured:

1.  participating in the December 2008 Law Games; and

2.  on a vacation taken since November 18, 2008.

[71] The photographs should be identified by location, date and time (if this information is available to the plaintiff). The defence may then choose to either inspect the photographs (electronically or otherwise) and/or pay for the photographs’ duplication.

[72] Before disclosure, the plaintiff may edit the photographs to protect the privacy of other individuals appearing in those photographs…

[75] The plaintiff is not obliged to include commentary from the Facebook web?site. If such commentary exists, the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties: Dosanjh v. Leblanc.

[76] Costs of the application will be to the defendants in the cause.

$12,000 Non-Pecuniary Assessment For 7 month Whiplash Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released last week by the BC Supreme Court, Penticton Registry, assessing damages for soft tissue injuries caused by a motor vehicle collision.
In last week’s case (Kingsfield v. Powers) the Plaintiff was involved in a 2007 collision in Oliver, BC.  Fault for the crash was disputed and ultimately the Court held that both parties were to blame with the Plaintiff shouldering 75% of the fault.
The Plaintiff suffered from chronic back pain although the Court did not accept this was caused by the collision.  The Court did, however, accept the Plaintiff suffered a whiplash injury which remained symptomatic for 7 months.  In assessing non-pecuniary damages at $12,000 (before the reduction for liability) Mr. Justice Barrow provided the following reasons:

[57] It follows from the foregoing that I am not satisfied that the on-going low back problems that Mr. Kingsfield is experiencing are causally related to the injuries he sustained in the motor vehicle accident.

[58] The next issue is an assessment of Mr. Kingsfield’s other injuries. They gave rise to fairly significant pain and discomfort for the first month after the accident. He was unable to do his job during that time, and when he did return to work it was to light duties for about six weeks. He continued to experience headaches until approximately mid-March and his neck was painful beyond that, perhaps until June 2008, some seven months after the accident. During this time his injuries did affect his life. He had difficulty sleeping, did not continue with his recreational activities, curling in particular, and generally felt poorly.

[59] The cases of Dolha v. Heft, 2011 BCSC 738; Morales v. Neilson, 2009 BCSC 1890; and De Leon v. Harold, 2010 BCSC 1802, are instructive in terms of quantum. All involved soft tissue injuries that resolved within a year. In Dolha the plaintiff’s significant injury was to her back and neck. Those injuries resolved within six to nine months following the accident. She was awarded $10,000 in non-pecuniary damages. In Morales the plaintiff suffered soft tissue injuries to his shoulder, neck and back. While those injuries limited his activities somewhat he was able to work seven days a week in a physically demanding job since the accident. His injuries were all resolved by a year post-accident. He was awarded $11,000 in non-pecuniary damages. In De Leon, the stoic plaintiff suffered soft tissue injuries which, due to her active participation, resolved substantially within two months of the accident and almost entirely within six months. She was awarded non-pecuniary damages of $12,000.

[60] I am of the view that an appropriate award of non-pecuniary damages in this case is $12,000. Mr. Kingsfield’s injuries significantly affected his life, including how he performed at work. Although he is entitled to compensation for past wage loss, I accept that the plaintiff takes pride in being able to do his job and his inability to do it was a source of significant anxiety while he awaited the resolution of his injuries.

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

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.


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.