ICBC has been stung with paying a car accident victim $155,340.86 in legal fees for failing to disclose a video showing her weakened and being taken away by ambulance! ICBC, the Insurance Corporation of British Columbia, disclosed to the jury only videos showing the claimant being active and disregarded a court order requiring disclosure of all videos in what seems like an attempt to manipulate the jury (Norris v. Burgess,2016 BCSC 1451). ICBC paid approximately $23,000 for the surveillance videos of this injury victim, disclosing only the videos that helped discredit the claimant.
ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province. ICBC has shown a complete disregard for the truth and the well being of all British Columbian’s by violating our polity of trust.
There appears to have developed a culture of reprehensible behaviour within ICBC , which includes ICBC adjusters, despite ICBC “policy”. Some readers may recall the case in which ICBC adjusters were accessing personal information of jury members to attempt to manipulate the jury.
A government review of ICBC is now required to consider the elimination of this 45 year old auto insurance monopoly. British Columbian’s need to now know how many lives have been destroyed by this type of reprehensible behaviour.
The ICBC Lawyer at the costs hearing in this case apologized on behalf of ICBC for the late disclosure claiming it was “inadvertent” and not “calculated”.
The trial management conference judge ordered the listing and description of any surveillance or video. The existence of the Video was not disclosed until the start of the fourth week of trial and was harmful to ICBC argument that the claimant was exaggerating her injuries.
The Court found that ICBC showed a casual disregard for the Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.
ICBC’s attempt to manipulate the minds of the jury failed in this particular case but how many attempts by ICBC have been successful in the past we do not know. As the judge pointed out:
[74] Jury trials have a special place in the development of the common law and are integral to our justice system. Juries enable members of the community to participate in the administration of justice and help keep the judiciary moored to the public’s common sense. In R. v. Corbett, [1988] 1 S.C.R. 670 at 693–94, Chief Justice Dickson and Justice Lamer (as he then was):
We should maintain our strong faith in juries which have, in the words of Sir William Holdsworth, “for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense” (Holdsworth, A History of English Law (7th ed. 1956), vol. I, at p. 349).
[75] When a jury trial is disrupted and affected by the actions of a party, the court’s rebuke or reproof is more likely warranted.
[76] The reputation of the court was also affected. Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.
ICBC’s disregard for the disclosure rules warranted rebuke in the form of an award of special costs. With respect to Rule 14-1(3)(b)(vii), the contingency fee agreement was of benefit to the claimant and allowed her to bring the litigation, without funds, and to achieve a significant result. Personal injury lawyers also take great risks to bring these cases to trial when ICBC attempts to use their monopoly to manipulate the result.
With respect to Rule 14-1(3)(b)(viii), the contingency fee agreement falls within the objects of the Rules of Court. It helped to secure the determination of the matter. It also reflected the principle of proportionality, having regard to the potential quantum involved, and the complexity of the matter and its importance to the claimant.
This injury claimant was successful at trial with the jury awarding her $462,374 in damages resulting from the motor vehicle accident.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
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