Craig v. Smith, 2010 BCSC 1082
August 3, 2010- ICBC refused to give an injury claimant relevant documents regarding a motor vehicle accident. The personal injury lawyer representing the claimant had been asking ICBC for the documents for over a year. There were several written demands, a formal application to court and a day of argument, over the course of two days, to get the ICBC lawyer to disclose the required documents.
The injury claim arises from a single vehicle accident when the claimant was riding in the back luggage area of an SUV driven by a drunk driver. The vehicle went out of control and rolled. Several people were injured, several ICBC claims were opened.
ICBC clearly had failed to disclose important documents. In particular, ICBC agreed that the editing of documents must be done by the ICBC lawyer ; it is not to be done by the Freedom of Information Officer, a legal assistant or an ICBC adjuster. The Lawyer for ICBC agreed that he must and will review each of the more than 400 individual pages of documents as well as several disks of photographs and will provide a proper listing of documents.
The court pointed out that it is the lawyer’s duty to determine relevance and claims of privilege . There is an obligation to describe documents in sufficient detail to enable other parties to assess the validity of the claim of litigation privilege. The dominant purpose test is still the appropriate test to be applied in determining litigation privilege but is “more compatible with the contemporary trend favouring increased …mutual and reciprocal disclosure which is the hallmark of the judicial process”; see Blank v. Canada (Minister of Justice), 2006 SCC 39. This is currently well settled law.
The court ordered ICBC to pay the costs of the application including one and a half days of hearing payable to the claimant immediately . Posted by Mr. Renn Holness
Issue: Should ICBC be punished further for not giving the injury claimant relevant documents?