If I am compelled to attend a medical assessment for ICBC, can ICBC conduct surveillance of me as I travel to the assessment?
A useful decision was published this week by the British Columbia Supreme Court in the case of Moquin v. Fitt, 2017 BCSC 1204. The context was the ICBC lawyer seeking an order that the Plaintiff attend two medical examinations, and the only issue was whether ICBC should be prohibited from conducting surveillance of him during his travels to and from the appointments.
Mr. Justice Thompson ruled that ICBC was prohibited from conducting surveillance of the Plaintiff during those travels, providing the following reasons:
[21] The defendant nominates a R. 7-6 medical examiner, but it is the Court that appoints the examiner and orders the plaintiff to attend for the examination at a particular time and place. On the dates of the medical examinations, the plaintiff will not be in public on journeys of his own choosing. If the defendant or the defendant’s insurer takes advantage of the opportunity created by court order to engage in surveillance then the defendant might be seen by a reasonable observer to be acting in close concert with the Court. Partisan conduct aligned with the court order may be seen as lessening or compromising the Court’s neutrality, and the Court must, of course, zealously protect its reputation for impartiality.
[22] Barring surveillance on the trip to or from the medical examinations is hardly a significant barrier to the defendant’s ability to gather information, and in my view the imposition of a surveillance bar and the consequent chance that the trier of fact might be deprived of some relevant information is a small price to pay to guard the Court’s reputation. Returning to R. 13-1(9), I think the non-surveillance condition promotes the just determination of this proceeding — a stated object of the Rules — because it prevents the possibility of conduct which might degrade the perception of the Court’s impartiality.
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