The court has allowed the late admission of policy guidelines as ICBC is sued for maliciously prosecuting charges of uttering false statements. The allegation is that the Insurance Corporation of British Columbia, and its investigators ignored evidence, mischaracterized evidence, and fabricated evidence to support charges of uttering a false statement against the claimant and her husband ( A. v. ICBC ,2015 BCSC 1964).
ICBC applied for leave to introduce as evidence a written Crown policy setting out charge approval guidelines for Crown counsel without the need for calling a witness to identify the policy in question. ICBC relied on s. 29 of the Evidence Act, R.S.B.C. 1996, c. 124. The defendants successfully argued that the policy should also be admitted pursuant to R. 12-5(71) of the Supreme Court Civil Rules.
Section 29 of the Evidence Act provides:
(1) If a book or document is of so public a nature that it would be admissible in evidence merely by producing it, and no other statute exists making its contents provable by providing a copy of it, a copy of it or an extract from it, certified as true by the officer entrusted with the custody of that book or document, is admissible in evidence in any court or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence.
(2) The officer referred to in subsection (1) must furnish the certified copy or extract to any person who
(a) applies for it at a reasonable time, and
(b) pays a sum not exceeding 10¢ for every folio of 100 words.
In the courts’ view, s. 29 of the Evidence Act should be interpreted liberally in civil trials where there is no real controversy as to the authenticity of the government document in question. The judge was satisfied that the requirements of s. 29 of the Evidence Act were met and that the evidence of the Crown policy should be admitted by way of marking an affidavit as an exhibit.
The court also considered ICBCs’ alternative argument that the evidence be admitted pursuant to R. 12-5(71). That subrule provides:
At or before a trial, the court may order that evidence of a fact or document may be presented at the trial in any manner, including
(a) by statement on oath of information and belief,
(b) by documents or entries in books,
(c) by copies of documents or entries in books, or
(d) by a specified publication that contains a statement of that fact.
The Rules are to be interpreted with the goals set out in R. 1-3 in mind, namely, that the object of the Rules is to secure the just, speedy, and inexpensive determination of every proceeding on the merits taking into account proportionality. As the judge stated,
 With those goals in mind, I read R. 12-5(71) as giving the court discretion to make an exception to the requirement that when evidence is tendered by affidavit, the witness must be produced for cross-examination if the opposing party gives notice. Here I consider it consistent with the object of the Rules and the interests of justice to exercise my discretion pursuant to R. 12-5(71) and order that evidence of the fact of the Crown policy in question can be presented at trial by way of the affidavit of Ms. [K] without the necessity of calling her as a witness for cross-examination.
Learn more about the requirements for giving and receiving an ICBC statement after a car accident in BC.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.