Although inconsistent with a recent case refusing disclosure of the ICBC settlement brief, this case may open the way for claimants to obtain ICBC internal settlement documents for prior car accident claims( Easton v. Chen, 2015 BCSC 2288). However the current state of the law needs to be affirmed by the Supreme Court or Court of Appeal.
In this case the ICBC claimant was injured in a car accident and sued for damages. The application by the defendant, ICBC insured, was for production of documents from four earlier car accident lawsuits. Unbelievably, ICBC had already provided the defence lawyer with copies of most of the material that was the subject of the application. The court further noted that certain documents prepared by or submitted to ICBC in the prior car accident claims were produced by the defendant in this lawsuit. The claimant took issue with this and asserted it was a breach of the implied undertaking of confidentiality and should not be condoned. The Court paid no attention to their protest.
The Master ordered the production of the settlement documents, including the mediation brief stating,
“[26] The mediation documents sought raise another issue and that is settlement privilege. The defendant relies on Dholliwar v. Yu, 2015 BCSC 670 and Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, for the proposition that the disclosure of these documents is necessary in order to prove what the plaintiff received in compensation in the prior accidents and to prevent injustice through potential double compensation.“
However just over one month ago the same court refused the same request in a different case stating:
[31] …I am of the view that the defendant/applicant has not shown that the public interest in preventing double compensation has taken precedence over the public interest in encouraging settlement such that I should order the production of the mediation brief, settlement letter, file memo, communication or similar document prepared by the plaintiff’s previous solicitor…(Gamble v. Brown,2015 BCSC 1873)
The claimant in Easton invited the court to include, as a term of the order for production, an order that documents in the hands of ICBC that would have been privileged in the prior actions should also be disclosed. However, there was no application made by the claimant for such documents and the court refused to make this order. Claimants should therefore consider making a cross application for ICBC’s settlement notes.
I expect the approach set out in this case will be used by personal injury lawyers to gain access to ICBC’s internal settlement notes from prior car accidents unless the Court says it is clearly wrong.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.