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No Witness Adverse Inference in ICBC Trial

Blaming innocent victims for not calling expert witnesses sounds unfair. The Insurance Corporation of British Columbia defends guilty drivers. The guilty drivers blame claimants for not paying doctors to testify at trial. Then they ask the court to draw an adverse inference.

The current government changed the expert rules to help the state run auto insurer, ICBC. Expert rules limit payouts to victims for ICBC case expenses. Starting January 1, 2020, litigants are limited to three experts in ICBC auto injury cases. This rule results in prejudice to many auto injury claimants.

ICBC and Adverse Inference

A negative conclusion may be drawn if a litigant fails to call a witness who might give supporting evidence. A claimant therefore ought to call doctors who treated an important aspect of the injury, or explain why the witness is not needed.

However, the court has refused to draw an adverse inference in the car accident case of Sekhon v. Gill, 2019 BCSC 811 . The claimant had provided no opinion from her long-time family doctor. The defendant wanted the court to find against the claimant.

In refusing to make an adverse inference the court was quick to mention changes to the expert rules designed to assist ICBC in the litigation process:

[61]   … The Attorney-General has publicly stated that the rule was introduced as part of an effort to control the Insurance Corporation of British Columbia’s litigation costs.  In the circumstances, it is more than a little ironic to hear defence counsel argue that the plaintiff has failed to call enough experts…

[63]  Where a case requires opinions from specialists who assess the plaintiff for medical legal purposes only, a plaintiff may be barred from introducing any opinions from day-to-day treating physicians. The circumstances in which the court can be asked to draw an adverse inference may therefore become even more limited when the new rule comes into effect.
Sekhon v. Gill, 2019 BCSC 811

Proof in ICBC Minor Injury

The fact is, the NDP Horgan government has severely limited and reduced payments to victims for pain suffering. In the process this has helped guilty drivers pay less to their innocent auto victims.

The NDP have created a complicated statutory burden to limit innocent auto injury claims:

4  In civil proceedings relating to an injury, the burden of proof that the injury is not a minor injury is on the party making the allegation that it is not a minor injury. (NDP Minor Injury Regulations)

The NDP government has therefore card stacked the litigation process in favour of the state run monopoly, ICBC. This rule change is currently under constitutional challenge.

ICBC Given Special Legal Status to Prevent use of Expert Reports

Tags: Adverse Inference, Rule 11-8, Rule 11-8(11)(a)(ii), witnesses

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