BC Personal Injury Lawyers have been abuzz lately with the news that ICBC intentionally snooped into jurors claims histories while conducting the defence in a recent ICBC Injury Trial.
I have been following this story since it first came to my attention a few weeks ago. It was reported by Ian Mulgrew of the Vancouver Sun and more recently by the Louise Dickson of the Victoria Times Colonist. In a nutshell the facts behind the story are as follows:
The Plaintiff was injured in 2 motor vehicle collisions. She sued for damages. The trial for both claims were to be heard at the same time. ICBC chose to have both matters heard by Jury Trial. At the beginning of trial the Plaintiff brought an application to strike the jury and have the matter proceed by Judge alone. Mr. Justice Macaulay, the presiding judge, dismissed this motion and let the jury trial begin. (click here to read the reasons denying the motion to strike the jury).
A few days into the trial a settlement was reached. At the same time ICBC admitted to improper conduct, particularly snooping in the jurors private ICBC records. This breach of privacy was apparently initiated by ICBC’s defence lawyer who asked an ICBC adjuster to provide her with the juror’s claims histories. This admission concerned the presiding judge who discharged the jury and ordered that the ICBC defence lawyer and ICBCs’ corporate counsel appear before him for a subsequent hearing to shed some light on why the jurors claims histories were improperly disclosed to ICBC’s defence lawyer.
The following hearing took place today in the BC Supreme Court. One thing that I and many other personal injury lawyers had hoped for was that some information would have come to light about the frequency with which this snooping has occurred in the past. Particularly has ICBC improperly accessed jurors, plaintiffs or witnesses ICBC claims histories in other cases? Unfortunately these important questions were left unanswered.
Mr. Justice Macaulay held that the behaviour that came to his attention fell short of contempt of court however that it was improper and left serious concerns about the administration of justice in BC. The Times Colonist reported that ” The justice again emphasized he had serious concerns that the unauthorized disclosure of the two claims history impacts the administration of justice. Macaulay said it was not the responsibility of the court to investigate alleged breaches of the Information and Privacy Act, nor was it the function of the court to decide whether the lawyer’s conduct falls short of professional standards. Macaulay said he was concerned about fairness. If the plaintiff had called for a mistrial, Macaulay said he likely would have granted one.”
According to the Times Colonist “Macfarlane (ICBC’s corporate counsel) said ICBC had sent letters of apology to five of the eight jurors, but had been unable to contact the remaining three. Macaulay told him ICBC would not have the assistance of the court in contacting them.”
I wonder if ICBC’s letters of apology to the jurors make any mention of the BC Privacy Act and the fact that “it is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another“. I hope that ICBC’s letters contain more than a mere apology but proper compensation for this improper use of the jurors records. I further hope that this is an isolated incident and some sort of objective proof can be had to verify if this is the case.
The concerns about this behaviour and its impact on the administration of justice are serious ones. I commend the individuals at ICBC who came clean about this breach of Privacy but given the vast records that ICBC have in their database regarding British Columbians and the relative ease with which these can be accessed by ICBC adjusters this story should not end until there is a proper and verifiable assurance from ICBC that this is an isolated incident and that the jurors whose privacy was breached are properly compensated for this wrong.