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.


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