Court Rules That ICBC Fails To Meet Burden For Section 83 Deductions

Accident benefits through ICBC, otherwise known as Part 7 Benefits, can come in many forms, including payments of benefits prior to trial, as well as payments of benefits into the future after trial.

 

When awards are made by a Court for future care, a common application brought by an ICBC lawyer is for the deductibility of certain future care items that would be paid in any event pursuant to the Part 7 Benefits scheme.

 

For example, if a claimant is awarded $10,000.00 for future care, but ICBC takes the position that $5,000.00 of this amount would be paid in any event in the future through Part 7 Benefits, then ICBC would argue for a deduction of $5,000.00 from the future care award, so as to prevent the Plaintiff from benefiting from double recovery.

 

The former Section 83 of the Insurance (Vehicle) Act, that allows for potential deductibilitly of parts or all of a future care award, was amended through the passage of Bill 20, which is applicable to accidents occurring on or after May 17, 2018.

 

Whereas previously, deductions by a Court from future care awards were not that common due to ICBC’S proven history of unjustifiably terminating benefits, the Court now does not have to consider the likelihood that ICBC will pay any future benefits when ruling on any potential deductions.

 

Typically, a Court when ruling on such an issue must estimate the amount of potential Part 7 future benefits, and take such an estimate into account by reducing the amount of the future care award accordingly.

 

In Siverston v. Griffin, the Plaintiff was injured in a motor vehicle accident, and consequently commenced formal legal proceedings for several types of damages, including the cost of future care. Following a jury trial, an award for future care was made in the amount of $60,000.00. The Court reasoned that virtually all of the future treatments in question were categorized as discretionary Part 7 Benefits.

 

ICBC’S lawyer applied to have this award reduced, arguing that many of the future care components that constituted the overall award could eventually be paid at different times in the future pursuant to ICBC’S Part 7 accident benefits scheme.

 

Counsel for the Plaintiff submitted that ICBC’S lawyer did not meet the required burden to show what the Plaintiff’s entitlement to future benefits would be, as there would be too much uncertainty as to what any future entitlement would be. Further, it was submitted that the Court could infer from ICBC’S refusal of benefits before trial, that this same pattern would continue after trial as well.

 

The Court refused to reduce the cost of future care award, ruling that ICBC’S lawyer had failed to meet the required burden for deductibility.

 

[47] To establish a basis for a deduction under s. 83(5), the defendants have the burden of establishing a correlation between the plaintiff’s claim (as determined by the court) and treatments and services available as Part 7 Benefits. It is the quantum of that entitlement that is relevant for deductibility purposes.

 

[48] The defendants rely on Sangha as support for the proposition that an affidavit from an ICBC claims specialist deposing ICBC accepts the court’s findings is sufficient to establish the plaintiff can expect to receive correlating Part 7 Benefits. However, Sangha was not a jury trial. The affidavit of the claims specialist in this case states “ICBC accepts the Court’s implicit finding that the future care treatments and medications set out in the reports are necessary” [emphasis added]. In Sangha, Riley J. particularized the basis of the plaintiff’s cost of future care damage award in the trial reasons. While a judge’s reasons for judgment setting out precise factual findings may not be the exclusive pathway for establishing whether and to what degree a cost of future care award reflects services or treatments that are available as Part 7 Benefits, in this case, the lump sum nature of the jury’s cost of future care award makes it impossible for me to ascertain whether and to what degree there is a correlation.

 

[49] The Supreme Court of Canada’s observation at para. 47 of Gurniak that “a second level of matching between a specific head of damage in a tort award and a specific head of damage under the insurance scheme in question” does not obviate the need for the correlation s. 83(5) requires. That first stage of “matching” is still required. In Gurniak, the Court was able to assess whether there was a match between the accident benefits paid under Quebec’s no-fault insurance scheme and those paid under the British Columbia Insurance Act, because both were ascertainable: Gurniak at para. 54. That is not the case here. The basis of the jury’s cost of future care award is unknown.

 

[50] Accordingly, I find the defendants have failed to discharge their burden to prove the plaintiff has any entitlement to Part 7 Benefits respecting the loss on which the jury determined her claim is based.

 

Court Of Appeal Refuses To Order New Trial In Chronic Pain Case, Despite Inappropriate Jury Submissions By Plaintiff’s Counsel

In Brown v. Goodacre, the Plaintiff was injured in a motor vehicle accident, and consequently initiated legal proceedings. The case was heard before a judge and jury, with the jury awarding damages of $847,000.00.

 

ICBC’S lawyer appealed the jury award, arguing that counsel for the Plaintiff acted inappropriately during his opening statement and closing submissions to the jury, thus rendering the trial unfair. In particular, it was argued that counsel for the Plaintiff had expressed personal opinions to the jury. ICBC’S lawyer acknowledged that he had made only limited objections, and that the trial judge did instruct the jury by cautioning them about counsel for the Plaintiff personalizing the case. Regardless, ICBC’S lawyer submitted that there were exceptional circumstances that warranted a new trial.

 

Despite the fact that the Court of Appeal agreed that the previous submissions at trial of counsel for Plaintiff were inappropriate, it ruled that the trial judge’s instructions to the jury, when considered in light of the failure of ICBC’S lawyer to object to most of the comments or to request a mistrial, was enough to overcome the possible prejudicial effect of the submissions of counsel for the Plaintiff. In dismissing the appeal, the Court commented,

 

[40] I agree with the appellant that many of the comments of plaintiff’s counsel improperly personalized the case or expressed a personal opinion inappropriate for a jury address. I would not, however, give effect to the appeal on that ground for two reasons. First, the trial judge instructed the jury appropriately concerning personal opinions of counsel on two separate occasions, once in the middle of closing submissions of plaintiff’s counsel and once in his charge to the jury, to caution them not to be influenced by such comments.

 

[44] The second reason I would not give effect to this ground of appeal is that defence counsel (who is not counsel on the appeal) did not object to plaintiff’s counsel’s personalizing of the case, or ask the judge to take any of the stronger steps the appellant now asks this Court to take. I say this without being in any way critical of defence counsel’s decisions. He may well have considered that any unfair aspect of the plaintiff’s jury address was adequately addressed by the judge’s instructions to the jury. He may not have considered the comments of plaintiff’s counsel to be very serious at all. He may have considered that plaintiff’s counsel was doing more harm than good to his own client’s cause. In any event, the failure to object weighs heavily against appellate intervention.

 

[50] Having in mind the cautionary instructions given by the trial judge to the jury, it is my opinion that there are no exceptional circumstances in this appeal sufficient to overcome the absence of objection by defence counsel to the conduct about which the appellant now complains. I would dismiss the appeal.

Court Orders ICBC To Produce Statement Of Defendant, Ruling It Is Not Subject To Litigation Privilege

Often during the course of an ICBC injury claim, an adjuster or ICBC lawyer will refuse to produce a statement made by a Defendant with regard to how a motor vehicle accident occurred, citing it as a privileged document.

 

In Canning v. Mann, the Plaintiff was injured in a motor vehicle accident, and consequently commenced legal proceedings. The Defendant provided a statement to ICBC, detailing the circumstances of the accident, however ICBC’S lawyer refused to produce the statement to counsel for the Plaintiff, claiming it to be subject to litigation privilege.

 

The issue for the Court to decide was whether or not the statement in question was prepared for the dominant purpose of litigation.

 

The Court cited the British Columbia Court of Appeal case of Hamalainen for the two part test to consider, namely was litigation in reasonable prospect at the time that the document was produced, and if so, what was the dominant purpose for it’s production ?

 

The key question for the Court to consider was if the statement was prepared for use in order to obtain legal advice, or to conduct or aid in the conduct of litigation. If there was more than one identifiable purpose for the production of the statement, then it could not have been created for the dominant purpose of litigation.

 

In ordering ICBC’S lawyer to produce the statement to counsel for the Plaintiff, the Court commented,

 

[9] The claims centre notes appended to this affidavit discuss tort limits, vehicle damage, liability, and the plaintiff’s injuries, among other things. However, it is not at all clear, from a fair reading of these notes that ICBC created this document for the dominant purpose of litigation such that any future documents that they created, such as the statement that is the subject of this production application, must necessarily be for the dominant purpose of litigation.

 

[10] The defendant has not brought forward evidence that establishes that the statement was produced for the dominant purpose of litigation. The evidence it relies on suggests that there could have been multiple reasons why the claims documents were produced. It certainly does not clearly establish that litigation was the dominant consideration from the date this claims document was produced going forward.

 

[11] I order that the statement of the defendant dated February 19, 2016 be produced to the plaintiff on the basis that the defendant has not established the dominant purpose for its production was to obtain legal advice or aid in the conduct of litigation and it is, therefore, not subject to litigation privilege.

 

When Does ICBC’S Cap On “Minor” Injuries Take Effect ?

I have been receiving many calls from current clients and prospective clients who are wondering if they will be affected by the new cap on “minor” injuries that is set to take effect on April 1, 2019.

 

It has been reported somewhat inaccurately in some newspapers that Plaintiff’s counsel have been scrambling to commence legal action prior to April 1, 2019, or that Plaintiffs are trying to get whatever they can get for their current files prior to that time.

 

To be clear, the cap on “minor” injuries will only affect people injured in accidents on April 1, 2019, or later. People injured in an accident prior to April 1, 2019, will not be affected by the cap on “minor” injuries.

 

“Minor” injuries are described in Section 101 of Part 7 of the Insurance (Vehicle) Act , and Section 102  confirms that Part 7 applies to an accident occurring on or after April 1, 2019.

 

The new cap will not automatically be in place for perpetuity. A constitutional challenge will be launched in the Supreme Court of British Columbia, and the losing party there will undoubtedly appeal to the Court of Appeal of British Columbia, with the losing party there likely seeking leave to appeal to the Supreme Court of Canada. It thus could be quite a lengthy period of time before it is known whether or not the cap that will take effect on April 1, 2019, will remain law in British Columbia.

 

Similar legislation introducing a cap on “minor” injuries was struck down in Alberta as being unconstitutional, but this decision was later reversed on appeal, and leave to appeal to the Supreme Court of Canada was denied.

 

Court Rules That Victims Of Hit And Run Accidents Are Not To Be Held To A Standard Of Perfection

There is a common misconception that a victim of a hit and run accident can simply report the matter to ICBC and the police, and then do nothing else.

 

This is, in fact, not the case, and following such a path will likely result in ICBC and/or a court dismissing your claim. Under British Columbia law, it is incumbent upon victims of hit and run accidents to make “reasonable efforts” to ascertain the identity of the driver and/or owner of the vehicle that caused the hit and run accident. It is important to bear in mind that you do not have to actually find the driver and/or owner of the offending vehicle, but that you have made “reasonable efforts” to do so. Whether or not a claimant has made “reasonable efforts” will depend on the circumstances of each case.

 

In addition to notifying ICBC and the police of the circumstances of the hit and run accident, “reasonable efforts” include placing posters at the scene of the accident asking for witnesses, placing online ads asking for witnesses, placing an ad in the newspaper, speaking to residents in the area of the accident, and speaking to local merchants and businesses near the area of the accident.

 

In Ghuman v. ICBC, the Plaintiff sustained injuries after being involved in a hit and run accident, with the offending driver fleeing the scene shortly after the accident. The Plaintiff commenced formal legal proceedings, naming ICBC as a nominal Defendant.

 

Steps taken by the Plaintiff to ascertain the identity of the driver and/or owner of the other vehicle included notifying ICBC, notifying the police, posting flyers at the scene, and running an ad in the newspaper.

 

ICBC’S lawyer argued that the Plaintiff did not make “reasonable efforts” to ascertain the identity of the other driver and/or owner, as he did not follow up with the police after initially reporting the accident, and as he did not speak with local businesses in the area.

 

In ruling that the Plaintiff did indeed make “reasonable efforts”, thereby satisfying section 24(5) of the Insurance (Vehicle) Act, the Court commented,

 

[72] I wish to make it very clear that there is no admissible evidence before me that those efforts (canvassing for video surveillance and/or seeking records of potential witnesses that may have come forward to nearby businesses) were made. However, in the circumstances of this case, I would not consider such extensive efforts necessary in order for this plaintiff to comply with s. 24(5). Given the distances of the surrounding businesses from the Collision site and the layout of the area, I accept there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses. Such efforts would be highly unlikely to produce any results.

 

[73] In the end, Mr. Ghuman is not to be held to the standard of perfection. Even if the timing of his telephone call to police and his lack of follow up with police could be viewed as something less than reasonable in and of themselves, I agree with the plaintiff that what is reasonable in all of the circumstances of one case does not rise and fall on a single effort. What sets this case apart from other cases provided is that Mr. Ghuman was faced with a driver who immediately fled the scene of a low impact type of accident in an area with transient traffic, surrounded by parking lots. Despite these obvious limitations in obtaining information regarding that vehicle’s identity, Mr. Ghuman nevertheless chose to take several positive steps to investigate. He was proactive from the outset. That he was unsuccessful is of no consequence. All that is required is that he take all reasonable steps to ascertain the identity of the unknown driver and owner of the SUV. I find that he did in the circumstances of this case.

 

Court Refuses To Allow ICBC To Withdraw Admission Of Fault In Late Stages Of Litigation

In Bodnar v. Sobolik, the Plaintiff was injured in a motor vehicle accident, and subsequently commenced formal legal proceedings.

 

In the Response to the Plaintiff’s Notice of Civil Claim, ICBC’S lawyer admitted fault on behalf of the Defendant. There was video footage of the accident which the decision to admit fault was based on. Successive adjusters also shared a similar viewpoint with respect to admitting liability.

 

Well into the litigation stages, ICBC’S lawyer hired an engineer to review the video footage. Based on the engineer’s opinion regarding the speed of the Plaintiff’s vehicle, ICBC’S lawyer tried to withdraw the earlier admission of fault.

 

With respect to a withdrawal of an admission, Rule 7-7(5) of the Supreme Court Civil Rules of British Columbia states that :

 

A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,
(b) a deemed admission under subrule (2), or
(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.

 

The Court was to determine whether or not it would be in the interests of justice to allow the withdrawal of the admission. In ruling that it would not be, the Court commented:

 

[14] ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.

 

[15] At this late stage both cars have been written off and are no longer available for inspection.

 

[16] It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.

Court Orders Plaintiff To Pay Defendant’s Post-Offer Costs For Failing To Beat Defendant’s Formal Offer

Proceeding to a trial in an ICBC injury claim can carry great financial risk. For example, if a Plaintiff, although successful at trial in obtaining a judgment, does not beat the amount of ICBC’S last formal offer to settle, he or she can be subject to serious financial consequences.

 

Nowhere is this more evident than in the case of Gill v. McChesney.

 

The Plaintiff was injured in a motor vehicle accident, and consequently brought formal legal proceedings. Prior to trial, ICBC’S lawyer made two formal offers to settle, with the second one before shortly before trial. The offer was rejected by the Plaintiff.

 

The Plaintiff succeeded at trial in obtaining a judgement, however it was far less than the amount of ICBC’S final formal offer to settle. This triggered the Court’s discretion to consider costs consequences against the Plaintiff.

 

The Court  considered the four factors in Rule 9-1(6) of the Supreme Court Rules :

 

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

 

(b) the relationship between the terms of settlement offered and the final judgment of the court;

 

(c) the relative financial circumstances of the parties;

 

(d) any other factor the court considers appropriate.

 

In focusing on Rules 9-1(6)(a) and (b), the Court ruled that the Plaintiff should have accepted a reasonable offer, and that the amount of the judgment was significantly less than the amount of both of the lawyer for ICBC’S offers.

 

[54] When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.

 

[55] While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.

 

[56] Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.

 

[57] As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:

 

[47] But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.

 

[58] In my view, that is what occurred in this case.

 

[59] Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.

 

“After The Event” Insurance Policy Considered By Court When Assessing Costs

“After the Event” insurance policies are obtained in order to provide costs and disbursements protection to a Plaintiff bringing a matter to trial.

 

A common policy would provide for $100,000 in coverage to cover any adverse costs awarded to the Defendant, as well as to cover any of the Plaintiff’s own disbursements.

 

In Clubine v. Panigua, the Plaintiff was injured in a motor vehicle accident, and subsequently commenced formal legal proceedings. Prior to trial, ICBC’S lawyer had made a formal offer to settle. At trial, the court award was less than the amount of this offer.

 

ICBC’S lawyer argued that the Plaintiff should only be entitled to costs and disbursements up to the date of the formal offer to settle, and that the Defendant should be entitled to costs and disbursements after the date of the formal offer to settle.

 

Counsel for the Plaintiff argued that the Plaintiff should receive costs throughout the entirety of the proceedings.

 

Typically, the Court considers the following factors as elucidated in Rule 9-1(6) of the Supreme Court Civil Rules when assessing costs :

 

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

 

(b) the relationship between the terms of settlement offered and the final judgment of the court;

 

(c) the relative financial circumstances of the parties; and

 

(d) any other factor the court considers appropriate.

 

In the case at bar, however, the Court also considered the factor of the “After the Event” insurance policy held by the Plaintiff.

 

The court did not award any post-trial costs to the Plaintiff, and granted the Defendant costs and disbursements after the date of the formal offer to settle, commenting :

 

[27] On the costs application it was disclosed that the plaintiff purchased adverse cost insurance known as “After-the-Event” (“ATE”) insurance prior to trial. In submissions the plaintiff explained that the ATE insurance would cover the defendant’s disbursements and costs from the date of the offer if costs were awarded against the plaintiff, and would also pay for the plaintiff’s disbursements incurred but not awarded from the date of the offer. It will not pay for the plaintiff’s costs following the date of the offer.

 

[28] The defendant submits that the ATE insurance effectively undermines the intent of the offer to settle rule. It allows a plaintiff to avoid the punitive costs consequences of the rule, ignore reasonable offers to settle, and with impunity take their chance at trial. The winnowing function of the costs rules is obviated by ATE insurance; doubtful cases can proceed through litigation without risk of adverse costs consequences. I conclude in this case that this insurance had such an effect.

 

[29] The ATE insurance in this case strongly weighs in favour of the defendant’s costs application.

 

[30] The defendant made reasonable efforts to settle this matter. The plaintiff’s failure to accept the reasonable offer to settle should have costs consequences. The ATE insurance held by the plaintiff is a factor that further weighs against costs following the event in these circumstances. 

 

[31] The offer was open to the eve of trial, July 22, 2016. In these circumstances the plaintiff is entitled to only his pre-trial costs of $6,500 plus disbursements. The defendant’s application is granted and she is entitled to the costs and disbursements of the trial.

Plaintiff Receives Full Costs Despite Receiving Court Award Less Than ICBC’S Offer

In Goguen v. Maddalena, the Plaintiff was injured in a motor vehicle accident, and consequently sued for various types of damages, including pain and suffering, diminished earning capacity, future care, and an in-trust claim.

 

Prior to trial, ICBC’S lawyer made a formal offer to settle in the amount of $175,000.00. At trial, the Plaintiff was awarded $174,360.84 in total damages.

 

Counsel for the Plaintiff, as well as ICBC’S lawyer, could not agree on what amount of costs should be payable by the Defendant. Counsel for the Plaintiff argued that the Plaintiff should be entitled to full costs throughout, whereas ICBC’S lawyer argued that the Plaintiff should pay the Defendant’s costs that were incurred after the date of the final formal offer to settle, or in the alternative, that both parties bear their own costs after the date of the final formal offer to settle.

 

When the amount of damages awarded to a Plaintiff does not exceed ICBC’S final formal settlement offer before trial, the Court typically does not award full costs to the Plaintiff. In the case at bar, the Court made an exception, given that the amount of damages received by the Plaintiff was only marginally less than ICBC’S final formal offer to settle.

 

[39] The plaintiff submits that the Defendant’s Offer was greater than the judgment amount by only $639.16, or approximately 0.5%. He argues that this marginal difference should afford little weight. In support, the plaintiff cites Saopaseuth v. Phavongkham, 2015 BCSC 45 at para. 74, in which Bernard J. noted that an award 2% greater than an offer to settle “suggests that little weight should be given to this factor”. Furthermore, in Zhao v. Yu, 2015 BCSC 2342 at para. 11, Baker J. held that an offer that exceeded an award by $1,800 was “of little significance in arriving at a decision about costs”.

 

[40] The defendant submits that the Defendant’s Offer was only with respect to the plaintiff’s tort claim and that acceptance of the offer would have allowed the plaintiff to collect Part 7 ICBC benefits. Therefore, the Defendant’s Offer exceeds the trial award by a larger margin that what appears on its face.

 

In rendering its’ decision on the costs issue, the Court considered the four factors in Rule 9-1(6) of the Supreme Court Rules :

 

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

 

(b) the relationship between the terms of settlement offered and the final judgment of the court;

 

(c) the relative financial circumstances of the parties;

 

(d) any other factor the court considers appropriate.

 

[52] Taken together, the factors pursuant to subrule 9-1(6) weigh in favor of the plaintiff. As a result, I exercise my discretion to award the plaintiff costs pursuant to R 9-1(5)(c). The plaintiff is entitled to his costs at Scale B.

Court Compels ICBC To Disclose Relevant Policy Of Insurance

When the amendments to the British Columbia Supreme Court Civil Rules came into effect on July 1, 2010, there was a new rule that required parties to disclose the limit of the insurance coverage available to them. Such disclosure is intended to assist parties in assessing their prospects of recovery upon judgment, as well as to encourage settlement of claims where the limits of insurance coverage would play a factor when weighing settlement offers.

 

Rule 7-1(3) of the British Columbia Supreme Court Civil Rules states that, with respect to an insurance policy:

 

(3) A party must include in the party’s list of documents any insurance policy under which an insurer may be liable

 

(a) to satisfy the whole or any part of a judgment granted in the action, or

 

(b) to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment.

 

In Sinnett v. Loewen, the Plaintiff was injured in a motor vehicle collision, and consequently sued for damages. Prior to Examinations for Discovery and the setting of a trial date, counsel for the Plaintiff and ICBC’S lawyer exchanged Lists of Documents, as required under the British Columbia Supreme Court Civil Rules.

 

Counsel for the Plaintiff was not content with the extent of production of the Defendant’s documentation respecting insurance coverage, necessitating an interlocutory application before a Master seeking unredacted versions of any insurance policies and insurance coverage that the Defendant may have. ICBC’S lawyer opposed the application, and sought a dismissal, with an award of special costs.

 

In citing the British Columbia Court of Appeal case of Meghji with respect to judicial consideration of Rule 7-1(3), Master Bouck commented :

 

[15] In its decision, the Court of Appeal takes a broad view of what information should produced pursuant to the above-cited rule. For example, such information is not limited to an actual document detailing a policy of insurance but rather encompasses information about “insurance coverage.”

 

[16] Furthermore, that Court found that all Supreme Court Civil Rules ought to be interpreted in such a fashion as to encourage the settlement of claims: para. 129. Thus, by disclosing their respective insurance coverages (including any UMP coverage available to the plaintiff), the parties in this case will be in a more informed position to reach a negotiated settlement.

 

[17] … there is an obligation on the defendant to list any such documents. If no such document appears on the defendant’s list, the plaintiff may choose to pursue the existence of the documents at an examination for discovery. If listed, the issue of a particular document’s relevancy and thus its admissibility into evidence can still be challenged by the defendant at trial: SCCR 7‑1(4).

 

[18] In the result, there will be an order that the defendant include in his list of documents any insurance policy or certificate of insurance or any other type of document that discloses insurance coverage under which an insurer may be liable to satisfy in whole or any part of a judgment granted in this action or to indemnify or reimburse the defendant for any money paid by the defendant in satisfaction of the whole or any part of such judgment.