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ICBC’s Flagrant Ignorance of Trial Orders Criticized as Deserving of Sanction and Rebuke

As was reported in a recent blog post, ICBC in 2019 rolled out its new policy of withdrawing settlement offers and replacing them with unreasonably low settlement offers. The result has been two-fold. First, ICBC is now dragging out claims for as long as possible in hopes that an injured claimant will give up and accept the new low settlement offer. Second, ICBC is forcing innocent injured claimants to trial.

With more and more cases heading to trial, our courts are now too overloaded. The result is that trials are getting “bumped” because there are not enough judges to hear the cases.

As a personal injury lawyer, it is disheartening to see that our NDP government who has always professed to be “for the people” are taking aim at innocent injured victims to help lessen ICBC’s financial woes. Why is it that the NDP are not finding a solution to make ICBC more cost effective and more efficient? Why are cases being forced to trial when they ought to be resolved early and without unnecessary trial costs? Why is the ICBC management who is responsible for the “financial disaster” of ICBC still employed and receiving their bonuses? In my view, it is because the NDP and ICBC feel that injured claimants are easy and vulnerable targets.

Another example of ICBC’s inept trial preparation was discussed in the recent case of Diaz v. Nowack 2020 BCSC 112.

In this motor vehicle accident case, the trial was set to proceed on January 6, 2020. An order was made at the trial management conference which took place more than a month prior to the trial that both parties produce witness lists and witness will say statements three (3) weeks before trial. The rationale behind this order is to avoid trial by ambush and to instead ensure fairness and to allow enough time for both parties to interview and investigate each other’s potential witnesses.

ICBC failed to abide by the order instead providing this information to the injured claimant very close to trial which significantly impacted her ability to proceed to trial in a fair manner. The trial judge was very critical of ICBC and its flagrant ignorance of the trial management orders. In adjourning the trial due to the prejudice caused by ICBC, the judge stated:

[8] For the reasons that follow, I adjourn the trial with costs thrown away payable forthwith to the plaintiff:

1)    I am concerned that excluding the evidence might prevent the determination of the issues on the merits. Given the submissions, I anticipate the potential for serious conflicts in the evidence and for challenges to the plaintiff’s credibility. Without the ability to rely on evidence from other witnesses and to use the said documents, there is a real risk the court will be hampered in its ability to determine the issues.

2)    The proposed evidence may be important to the fact‑finding process.

3)    I accept the plaintiff’s argument that she will be prejudiced if the witnesses are allowed to testify at this time because she will not have time to adequately prepare.

4)    The plaintiff is prejudiced by an adjournment as well, however, due to the time wasted in preparing for a second trial and by being delayed in an adjudication of her case. For this reason, I am awarding her costs thrown away, payable forthwith.

5)    The defendants chose only to commence witness preparation at the last minute, only days before the TMC order deadline. This is a practice that deserves sanction and rebuke. Trial management conferences, the orders made there, and the deadlines set out in the Supreme Court Civil Rules are all designed to provide parties with time to prepare and to consider the strengths and weaknesses of their case, so a trial can proceed in an efficient manner.

Tags: ICBC Settlement, trial adjournment, trial management conference

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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