This was an application for production of ICBC documents in a car accident injury case(Bako v. Gray,2012 BCSC 204). The injury claimant applied for production of various documents which had been listed by the defendant in Part 4 of his List of Documents subject to a claim of litigation privilege.    
The injury claimant  alleged that the ICBC documents were created during the investigative stage and not for the dominant purpose of litigation. She pointed out the lack of any evidence from any adjuster who handled the files and the inconsistent and contradictory evidence of the adjuster who claimed to have assumed conduct of the files on that date. In ordering the file be produced the court made it clear,    

[24]  Based on my review of the materials, it is of little import whether Ms. McIntosh or Mr. Matheson had charge of the files between November 10, 2008 and March 16, 2009, or for that matter, September 22, 2009 when the Writ was filed and sent for delivery to ICBC. Nothing in the materials supports Mr. Matheson’s assertion that he had a reasonable basis to determine and that he did determine that there was a reasonable prospect of litigation in this case. [25] Save and except for references to reserves, the CWMS notes are ordered to be produced in unredacted form up to and including September 22, 2009.    

 The Independent Adjuster’s Report    

[26]  All references to the independent adjuster in November of 2008, centered on him simply being a “liaison” between Mr. Matheson and Mr. Bako, at least for so long as Mr. Bako remained unrepresented; the report is dated shortly after Mr. Bako did retain counsel. Again, I see no support for any conclusion other than that his involvement was related directly to Mr. Matheson’s stated intention to settle the file before Mr. Bako retained counsel. The report is ordered produced.    

 [27] The plaintiff has been wholly successful and is entitled to his costs in any event of the cause.    


Posted by personal injury lawyer Mr. Renn A. Holness    


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