It is not uncommon for the Insurance Corporation of British Columbia, ICBC, to initially accept fault for an accident and then later change their mind. ICBC personal injury lawyers assisting victims will welcome this case (Pavan v. Guolo,2014 BCSC 648) as it makes it clear that ICBC must produce all documents gathered in the investigation phase of a personal injury claim.
The claimant suffered injuries in an accident when the car he was driving collided with a limousine. There were five passengers in the limousine at the time of the accident, all of whom also suffered injuries and started separate personal injury lawsuits. Liability and quantum were put in issue by ICBC.
The applicable test for determining whether investigation reports obtained by ICBC in motor vehicle accident cases are confidential on the basis of litigation privilege. Documents need not be produced if, as described by the Court of Appeal in Hamalainen (Committee of) v. Sippola,  B.C.J. No. 3614 (C.A.):
a) litigation was in reasonable prospect at the time the document was produced; and
b) litigation was the dominant purpose for the production of the document.
The ICBC claims examiner filed an affidavit setting out the circumstances under which she commissioned the independent adjuster’s report. She also provided background chronological information about ICBC’s handling of the two initial ICBC claims filed with respect to the accident.
One month following the car accident the ICBC adjuster assigned to conduct of the defendants’ claim, accepted liability for the accident for “internal purposes only” and the injury claimant’s collision deductible was returned to him.
Many months before the lawsuits were started but after ICBC knew lawyers were involved an adjuster was assigned conduct of the ICBC claims with respect to all five limousine passengers. She said that it was clear to her that there was a significant financial exposure for the injuries claimed by them and that litigation was probable. She then hired an independent adjuster to obtain statements from witnesses. The ICBC adjuster said she did so for the purpose of defending the claims.
However, the court did not accept ICBC’s position. As the law is clear, the burden is on the party seeking to protect a document from disclosure to establish litigation privilege. The party asserting the privilege must present evidence of the circumstances surrounding the creation of document, including evidence with respect to when it was created, by who, who authorized it, and what use was or could be made of it.
The ICBC adjuster’s affidavit provided information about when the report was created and by whom. She said that her manager authorized it but there was no evidence as to the basis on which she sought the authorization or evidence from the unnamed manager as to why he or she approved it. There was also no evidence from the adjusters earlier assigned to the file to establish that once the internal decision with respect to liability for chargeable claim purposes had been made, there was no further investigation of the accident.
ICBC failed to meet the burden of establishing that the dominant purpose for the creation of the independent adjuster’s report was litigation. The report and some of the adjusters notes were therefore not protected by litigation privilege and were ordered produced.
Posted by ICBC Personal Injury Lawyer Mr. Renn A Holness, B.A. LL.B.- working only for the injured not ICBC or any other insurance company.