Witness Entitled To Copy of Statements Provided To ICBC Despite Litigation Privilege Claims

Reasons for judgment were released last week by the BC Supreme Court, Prince George Registry, addressing the entitlement of a witness to a collision obtaining a copy of a statement they provided to ICBC.
In last week’s case (Minnie v. ICBC) the petitioner was the witness to a collision involving a vehicle and a pedestrian.  She gave ICBC a statement detailing her account of what occurred.  The pedestrian ultimately sued the ICBC insured motorist for damages.  The witness wished to obtain a copy of her statement to ICBC but ICBC refused to disclose this.  The witness brought a Freedom of Information request for the statement but this did not prove fruitful.  The witness brought a petition in the BC Supreme Court.  ICBC opposed arguing there were further steps the witness could have taken through the Freedom of Information process and further that the statement was protected by litigation privilege.  Mr. Justice Steeves concluded that neither of these were valid reasons to keep a copy of the statement away from the witness.  In ordering ICBC to disclose a copy of the statement to the witness Mr. Justice Steeves provided the following reasons:
[41]  Although the respondent is entitled to have its litigation privilege protected, fairness requires that the petitioner be provided with a copy of her statement.  The petitioner is a stranger to the litigation about the accident; she is not a party and she has no interest in it.  I note that, if the petitioner was a party, there would be no question that she would be entitled to her statements, as I will discuss below.  I have some difficulty imposing on a private citizen the rules of a “sporting event” that are more onerous than those placed on parties.  The risk of applying those rules to a non-litigant without legal representation is that a person can, through accident or ignorance, make a mistake.  The mistake can be only embarrassing to the non litigant and/or it can distort the evidence before the court.  Neither is desirable.
[42]  Within the bounds of an adversarial system, private citizens should be encouraged to participate in the litigation process and disclosure to them of previous statements, as in this case, is a modest way to accomplish that objective.  The petitioner could have insisted on some kind of legal document that assured her that she would get a copy of her statement before she gave it.  She did not do that.  In m view, she did not have to do it ad nor should she now be at a disadvantage greater than a party for fail
[43] The petitioner is entitled to a copy of her statements as soon as practicable in order to review them herself and with her solicitor. However, I set conditions on that disclosure to recognize the litigation privilege that also attaches to the statements.  The disclosure of the statements does not extend to disclosure by the petitioner to other persons, including the plaintiff in the accident that she witnessed (or counsel for the plaintiff).  If, ultimately, there are issues at trial that involve the petitioner’s statements, they will have to be resolved by the trial judge.
 

bc injury law, litigation privilege, Minnie v. ICBC, Mr. Justice Steeves, witness statement

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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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