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Document Production and ICBC Claims

If I claim income loss, do I have to give up all of my employment records?  What if I had some embarrassing stuff happen a few years ago that I don’t want ICBC to know about? 

In an application heard in Kelowna this week, ICBC argued that the plaintiff in a personal injury action should disclose an extensive number of documents, including some which her counsel argued were irrelevant or too private (Kopp v White, 2016 BCSC 1953).  Of note in this case is that plaintiff counsel had never provided a list of documents of any kind over the two or so years since serving the Notice of Civil Claim – despite repeated requests to do so.

One of the areas of disclosure sought by ICBC regarded the plaintiff’s employment records from the years prior to the collision. ICBC argued that in this case, it was appropriate for disclosure to extend back five years prior to the collision given the severity of the plaintiff’s injuries and the alleged impact of those injuries on the plaintiff’s employability.

Counsel for the plaintiff argued that disclosure of the documents may open up irrelevant or private matters.  The plaintiff had had a series of jobs in the five years prior to the 2012 collision, including four in 2008 alone.  Income loss was being claimed only from the job at which she’d started a few months prior to the crash, but counsel for the defendant argued that her employment files from previous employers spoke to her general employability.

Master McDiarmid stated his overall reasoning for making any orders for disclosure:

[58]         As I have stated numerous times earlier in these reasons, this case is somewhat unique in that there is an absence of a list of documents from the plaintiff. Keeping in mind Rule 1-3 of the Civil Rules and in particular the proportionality, which, in my view, in this case tilts the scale toward increased disclosure, given the seriousness of the plaintiff’s claims and keeping in mind privacy issues, I determine that the disclosure I order will provide documentation which is relevant to the issues in this litigation. Relevance, clearly, is the most important factor and ICBC has a right to investigate documents which are relevant or which reasonably may be relevant.

He went on to order the bulk of what ICBC had sought, including all of the plaintiff’s employment files for five years prior to the crash.  Moreover, he granted the order in the Jones format – to be provided directly from the employer to defence counsel, rather that looping through plaintiff counsel beforehand in the Halliday method.

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