In Norris v. Burgess, the Plaintiff was injured in a motor vehicle collision, and subsequently commenced an ICBC claim, followed by formal legal proceedings.
Prior to trial, ICBC’S lawyer made a formal offer, which was rejected by the Plaintiff. At trial, the jury awarded the Plaintiff much less than the amount of the formal offer. When such circumstances arise, the Court will commonly exercise its’ discretion to strip the Plaintiff of costs and/or award legal costs against the Plaintiff from the date of the formal offer onwards.
However, unique circumstances existed in the case at bar.
Prior to trial, the Court had ordered ICBC to list and produce surveillance evidence that they had of the Plaintiff in their possession, in order to prevent any surprise or ambush at trial. However, such evidence was not produced by ICBC until the fourth week of the trial.
The lack of production of such surveillance evidence, which was noted by ICBC’S lawyer as being harmful to the defence, had many deleterious effects on the presentation of the Plaintiff’s case, including the inability of Plaintiff’s counsel to reference the evidence in opening submissions to the jury; the inability of Plaintiff’s counsel to put the evidence to the Plaintiff in direct examination; the inability of the jury to see the complete picture of the Plaintiff’s injuries; and, the inability of the Plaintiff’s expert witnesses to provide full and comprehensive reports.
The Court was very critical of ICBC, finding such conduct to be worthy of punishment in the form of a “special costs” award against ICBC. “Special costs” can be awarded in cases where a party has exhibited particularly egregious and reprehensible conduct.
The Court was of the opinion that ICBC showed a “casual disregard” for the court order requiring a listing and production of the surveillance evidence, and ordered ICBC to pay $155,340.86 in “special costs”.
 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.
 A simple “pilot check” by ICBC, possibly in the form of an email or call to Mr. Levy, a review of its paid surveillance video invoices, or a review of its file notes, would have revealed the existence of the 2015 Video. The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.
 Mr. Miller stated that an ICBC adjuster often handles a large number of files and that this may explain the late disclosure of the 2015 Video. If ICBC adjusters are overworked and therefore prone to make mistakes, then it was incumbent on ICBC, on being told by its counsel of the October 20, 2015 Court Order, to ensure that a mistake had not been made.
 The late disclosure affected the efficient administration of justice. It required plaintiff’s counsel to consider the plaintiff’s options, and likely discuss and receive instructions on a significant matter just as the plaintiff’s case was about to close, rather than be focused on the conduct of the plaintiff’s case.
 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.
 Finally, the video surveillance for all three years was central to the trial generally. Of course, the actual weight given to this evidence remains in the jury room, as it properly must.
 In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.