When investigating an ICBC injury claim, ICBC will often attempt to interview and speak to various witnesses who may have information about the injured claimant and his/her claim. Part of this investigation often includes contacting the injured claimant’s friends, family, co-workers and employers. If the witnesses do not voluntarily agree to speak to ICBC or its representatives, then ICBC may then send letters with questions for the witnesses to answer about the injured claimant. If the witnesses do not respond to the written questions, then ICBC has the option of requiring the witnesses to attend a pre-trial examination. A pre-trial examination allows ICBC’s lawyers to question the witnesses under oath in front of a court reporter.
An extremely disturbing example of the lengths ICBC will go in defending injury claims was discussed in Hansra v. Jones 2021 BCSC 805.
In that case, the injured claimant brought a claim for injuries he suffered in a 2015 motor vehicle accident. He had been a long-haul truck driver since 1993. In 2010 and well before the motor vehicle accident, the injured claimant, together with a co-driver, was hired to transport a shipment of products across Vancouver in a sealed truck to Brampton, Ontario. During the course of their travels, they were stopped in Manitoba for a routine traffic inspection. The police officer asked to inspect the vehicle and, in doing so, located 51 kg of cocaine in the interior of the truck. Both the injured claimant and the co-driver were charged with possession of cocaine for the purpose of trafficking. In the criminal trial, both were acquitted of all charges. The criminal charges and his acquittal were not common knowledge within his community and, in particular, within the trucking community that generally provides him work. The subject matter of his arrest and charges were never discussed with any of the employers or former employers.
In the course of the ICBC claim, the ICBC defence lawyer on instruction from ICBC and its adjusters sent a letter to 16 individuals relating to the injured claimant’s employment that set out a number of questions for the witnesses to answer. One of the questions read as follows:
“Were you aware that Mr. Hansra was arrested in 2010 because a truck he was driving was found to have over 50 kilograms of cocaine inside it? If so, did this influence his employment with your company? If so, how?”
The injured claimant alleged that this was a defamatory statement which amounted to witness tampering and he brought an action against ICBC, its adjusters and defence counsel involved in the case. It was alleged that the defamatory statement implied that he was a drug dealer associated with a criminal lifestyle and is unsavoury or of shady character. Interestingly, the defamatory statement failed to set out the important fact that the injured claimant was acquitted of any and all charges.
ICBC, its adjusters and defence counsel argued that the defamatory was made in the course of an inquiry with respect to the plaintiff’s claim for wage loss. They applied to the court to strike the injured claimant’s claim as having no reasonable prospect of success because the defamatory statement was protected by absolute privilege.
The law of defamation attaches an absolute privilege to all statements made by lawyers in the course of judicial proceedings, Absolute privilege is considered for the public benefit. It is understood as freeing lawyers from fear that in advocating their client’s cause they will be sued if what they say on behalf of a client is found not to be true. Accordingly, if lawyers make defamatory statements that are untrue, as long as he/she made the statement while acting in the course of their duties to their client in the course of a judicial proceeding, they will be protected by absolute privilege.
On the basis of absolute privilege, the injured claimant’s claim against ICBC, its adjuster and defence counsel was dismissed.