Early in litigation, can ICBC compel you to provide a detailed statement (particulars) of your income loss?
In Friday’s decision of Campbell v. Bouma, 2015 BCSC 817, it was over six months before the examination for discovery, and the trial date was not scheduled. ICBC applied to the court for an order that the plaintiff provide the particulars of her income loss claim. Prior to the application, ICBC’s counsel demanded the particulars, but failed to give a reason for urgency. Subsequently the plaintiff’s counsel had set about obtaining and providing wage documents in the usual course, which would have provided for full disclosure in advance of the discovery date. In dismissing the application and awarding costs to the plaintiff, Master McDiarmid made the following comments about the impropriety of seeking formal particulars so early in the litigation:
[36] The way the demand for particulars is framed, it seeks particulars in relation to past wage loss and ongoing or future wage loss. Future wage loss is usually awarded as a loss of capacity claim, unless there is a specific determinable actual future wage loss, such as known time off for future surgery.
[37] It is trite, of course, that “past wage loss” is determined as of the date of trial. In this case, no trial date has been set.
[38] Cases require trial management conferences. It is typical for the presider at a trial management conference to order particularization of wage loss and an updated particularization of special damages, so that the defendant is aware of those claims close to the trial date.
[39] Applying proportionality principles, it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed; those claims should be disclosed as they are known to enable an efficient examination for discovery, but often do not require formal particularization, such that they become part of the pleadings, until close to the trial date.
Authored by Jill Bishop
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