Having access to all of the evidence against you, can be extremely important to your ICBC case. Master Caldwell of the Supreme Court of British Columbia, in a recent decision, supported a plaintiff’s application to force ICBC to produce evidence related to the investigation of fault for a motor vehicle accident:
http://www.courts.gov.bc.ca/jdb-txt/SC/15/13/2015BCSC1374.htm
In ICBC cases an injured party has a right to see all evidence produced during the “investigation phase” of a potential lawsuit. Once there is a “reasonable prospect” of litigation this right ends and documents created beyond this point become privileged. There is no obligation to share privileged documents with the other side. Thus, the determination of when there is a reasonable prospect of litigation can be extremely important as it determines what evidence is privileged and what evidence must be shared.
In this case, ICBC had hired a private investigator to interview witnesses, and the plaintiff wanted to see this investigator’s reports. ICBC sent a letter, many months later, to the plaintiff advising them they had reversed their decision on liability and were now holding the plaintiff liable for the car accident. Generally, the law is that a reasonable prospect of litigation occurs at the point that liability is denied. Normally, the right to privilege would not begin until the plaintiff had received this letter denying liability. However, ICBC was making the argument that they had contemplated denying liability for the accident much earlier – at the point the plaintiff had retained a lawyer. ICBC then attempted to use this denial of liability to assert that evidence related to the investigation was protected under privilege.
Master Caldwell correctly identified the lack of logic in ICBC’s argument in describing the decision of the senior claim’s investigator as “wholly unilateral, arbitrary and lacking in any form of accountability“. How could they deny liability prior to properly investigating who was at fault for the accident? The fact that the plaintiff had hired a lawyer was irrelevant, as injured parties have a right to legal counsel. Master Caldwell stated:
“Private individuals who have been involved in motor vehicle accidents are clearly entitled to seek out legal counsel in order to actively pursue investigation, evaluation and possible resolution before embarking on active litigation. The process must be aimed at encouraging even handed, fully informed discussion focused on fair and equitable resolution; not a gun fight with one side holding a loaded gun and the other a weapon filled with blanks. The suggestion that by the mere act of seeking legal advice and representation a person abandons his or her right to have their claim considered on the merits in any forum short of a trial is a suggestion that I reject.”
I found Master Caldwell’s metaphor about entering into negotiations with ICBC without a lawyer being akin to entering a gunfight with a weapon full of blanks particularly astute. This case once again stresses the important of retaining effective legal counsel when pursuing personal injury claims.
