ICBC’s “Two Hats” Derails Litigation Privilege Claim

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering ICBC to produce and investigative report and video.

In today’s case (Oates v. Burton) the Plaintiff was injured in a collision and sued for damages.   After being represented by a lawyer the Plaintiff applied for disability benefits from ICBC and shortly after ICBC ordered surveillance.

The Plaintiff, in the context of the injury lawsuit, sought production of the surveillance and the investigator’s report but ICBC refused to produce this arguing it was privileged being created for the dominant purpose of use in the (at the time contemplated) injury lawsuit.  Mr. Justice Voith disagreed finding the report was likely created for dual purposes including investigating the Plaintiff’s claim for disability benefits.  In ordering production the Court provided the following reasons:

]         This case turns, as is generally the case, on the second or more “challenging” question; Raj at para. 12. That “challenging” question is whether Item 4.3 was generated for the dominant purpose of use in litigation.

[24]         I return to the narrow and focused chronology that I emphasized earlier. On August 23, 2013, plaintiff’s counsel, more than ten months after he had first advised the Insurance Corporation of British Columbia that he had been retained, sought an extension of the plaintiff’s temporary total disability (“TTD”) or Part 7 benefits. On September 5, 2013, or less than two weeks later, Item 4.3 was created. Almost immediately thereafter, plaintiff’s counsel was contacted and the plaintiff’s TTD benefits were extended. Approximately nine months later, the plaintiff’s Notice of Civil Claim was filed.

[25]         The plaintiff argues that at least one purpose that underlay the creation of Item 4.3 was the defendants’ desire to investigate or assess the plaintiff’s TTD benefits claim. Furthermore, and importantly, the plaintiff argues that it was necessary for the defendant to expressly address the relationship between the plaintiff’s TTD benefits claim and the creation of Item 4.3…

[31]         I do not say that a deponent, who prepares an affidavit that is intended to support a claim for litigation privilege, must address and negate all other potential or notional purposes, however remote, for which that document might have been prepared. In this case, however, the prospect or likelihood that Item 4.3 was created to address, at least in significant measure, the plaintiff’s TTD benefits claim is not fanciful or speculative. The preparation of Item 4.3 is bracketed, on the one side, by the ten months from when the defendants learned that the plaintiff had retained counsel and by eight months, on the other side, by when the Notice of Civil Claim was ultimately filed.

[32]         Conversely, Item 4.3 was prepared almost immediately on the heels of the defendants learning that the plaintiff was seeking an extension of her TTD benefits. In such circumstances, I do consider that there was a positive obligation on the part of the defendants’ deponent, the adjuster who oversaw the matter, to expressly and directly address the relationship of Item 4.3 and the plaintiff’s claim for TTD benefits, and the extent to which that claim gave rise to the creation of Item 4.3. That failure, in these circumstances, undermines the defendant’s affidavit evidence, calls into question the dominant purpose for the creation of Item 4.3, and is fatal to the defendants’ claim for litigation privilege over Item 4.3.

[33]         This conclusion is reinforced by the affidavit evidence of the adjuster on this central issue – evidence that the Master in the Reasons accurately described as “not particularly persuasive”. Specifically, the adjuster in her affidavit said:

… By the summer of 2013, the medical information seemed to indicate substantial recovery but with some partial disability. To get a better understanding of her function, I hired a private investigator to review the Plaintiff’s level of activity. My intention on retaining the investigator was to use the results of the investigation to hopefully assist with the defence of the claim and to assist counsel to prepare for litigation not yet commenced but reasonably anticipated.

[34]         Accordingly I allow the plaintiff’s appeal, and I order that Item 4.3 be produced to the plaintiff within seven days of these reasons being released. The plaintiff is to have the costs of both this appeal and of her earlier application.

What you need to know about ICBC’s coming rate hike

JENNIFER SALTMAN | Vancouver Sun

The issue: By Aug. 31, the Insurance Corp. of B.C. will submit its application for a basic insurance rate increase to the B.C. Utilities Commission.

ICBC won’t divulge how much rates could be increased — that will be revealed when the corporation files its request — but the Ministry of Transportation and Infrastructure stated that serious cost pressures as a result of the complexity, frequency and severity of bodily injury claims, in addition to higher vehicle repair costs, have resulted in the Crown corporation having to increase rates once again.

The background: On Wednesday, Transportation Minister Todd Stone told Radio NL in Kamloops that ICBC will be seeking between four and seven per cent, which is the allowable range.

“We’re going to do everything that we possibly can to apply as much downward pressure on rates so that we’re closer to four per cent versus a higher number, but look, the pressures on rates at ICBC is significant,” Stone said.

This is in line with past increases. In 2014 ICBC applied for a 5.2 per cent rate increase, which cost customers an average of approximately $3 more per month. The last rate increase was 5.5 per cent, an average of about $3.70 extra per month.

The controversy: In Question Period this week the opposition took shots at Stone, accusing the government of raising rates to meet projected annual dividend payments of $150 million for each of the next three years and turning ICBC into a “slush fund.”

Stone responded by saying that profits are generated on the optional insurance side and reinvested in health care and education.

This has been a controversial topic for years, with critics accusing the government of trying to balance its budget on the backs of ratepayers. The government also requires annual dividend payments from B.C. Hydro, which has not been making enough to transfer dividends and has been deferring the payments. Hydro will have to borrow hundreds of millions of dollars to meet the demand. 

What the numbers show: According to figures provided by ICBC, the corporation has transferred the projected amount of dividends to the government just once in the past five years.

In 2011, the projected transfer was $185 million, and the actual amount transferred was $101 million. The next year, the projected amount was $181 million but no money was transferred because government directed ICBC to transfer all of its 2012 excess optional capital to its basic account in order to help alleviate pressure on rates.

In 2013, ICBC transferred the projected amount of $237 million. The projection in 2014 was $200 million, but only $139 million was transferred. Last year, ICBC transferred $138 million, falling short of the projected amount of $160 million.

What’s next: Stone said in Question Period that his ministry will work “very closely” with ICBC on a wide range of initiatives, from enhanced fraud detection and looking at executive compensation to hiring more claims staff.

He said he is confident this will ensure that rates will be kept at the lower end of the allowable range for years to come. Any approved rate increase for ICBC will take effect on Nov. 1.

Avoid risky behaviour and prevent bad habits when learning how to drive, ICBC urges

Avoid risky behaviour and prevent bad habits when learning how to drive, ICBC urges

Now that summer’s in full swing, teenagers are taking advantage of the school break to learn how to drive. Summer is the busiest time at Driver Licensing Offices. In August alone, an average of 5,500 B.C. teens get their learner’s licence.

Although youth injuries and deaths from car crashes are declining in B.C., on average, 32 youth aged 16 to 21 are killed and 6,900 are injured every year. That’s why it’s important for teens to get a good start to their driving careers by building strong foundational skills that will make them safe and confident drivers for life.

When young drivers hit the road for the first time, they get a sense of newfound freedom and independence. But driver inexperience and overestimation of ability contribute to crashes.

ICBC’s top five tips for parents teaching their teen to drive

  1. Review the rules: Once your teen has their class 7 learner’s licence, they can hit the road with a qualified supervisor. Review your teen’s copy of ICBC’s Tuning Up for Drivers guide to brush up on the rules of the road and learn about the restrictions of each stage of the graduated licensing program so that you can make sure your teen follows them. This is also a great time to work on any of your own bad driving habits to set a good example for the new driver in your house.
  2. Gearing up: The type of car your teen learns to drive on can make a big difference. It’s best to learn on a vehicle that’s a manageable size, has good visibility, an automatic transmission and as many safety features as possible. Begin your driving lessons on roads with minimal traffic and avoid rush hour congestion to help build your teen’s confidence and ease their nerves. A driving lesson can be stressful for both teens and parents, so it’s a time to stay calm, focused on the road and avoid any distractions.
  3. Call in the experts: To help your teen gain as much driving experience as possible consider signing them up for lessons through a professional driving school, if you can. Instructors can be objective without the emotion that’s often involved in parent-teen relationships. If you do choose this route, stay involved and discuss what they’re learning. ICBC-approved driver training could take six months off a new driver’s time in graduated licensing.
  4. Test it out: To prepare for your teen’s road test, practice driving as much as possible at different times of the day, in different weather and road conditions and in unfamiliar neighbourhoods. That way they’ll be prepared for whatever conditions they encounter on the day of their road test. Teens can also take ICBC’s road ready quiz to help them avoid common driving mistakes.
  5. Keep them safe: Once your teen has passed their class 7 road test and can now drive without a supervisor, consider creating a family contract. It helps set out your expectations of your teen, the responsibilities you want them to show on the road and the consequences for breaking those rules.

If your teen will be driving your vehicle, review your insurance coverage. If your vehicle is rated in an experienced rate class (all drivers in a household with at least 10 years’ driving experience), you’ll need to change the rate class.

Teens can find the redesigned practice knowledge test, video driving tips and road signs practice test on icbc.com. The practice knowledge test can also be downloaded as an app free from the Apple Store.

Media contact:

Sam Corea
604-982-2480

ICBC, police and government warn drivers to stay alert on the roads this long weekend

ICBC, police and government warn drivers to stay alert on the roads this long weekend

As we head into B.C. Day long weekend, ICBC, the B.C. government and police are asking all drivers who will be setting off on a road trip to look out for the key warnings signs of fatigue – you don’t recall driving the last few kilometres, you don’t notice a vehicle until it suddenly passes you or your driving speed is creeping up or down.

Every year, 16 people are killed in crashes involving driver fatigue in B.C.*

Warm summer weather and long drives can be a dangerous combination that can cause fatigue. Fatigue slows a driver’s reaction time, decreases awareness and impairs judgment. Even a slight decrease in reaction time can greatly increase your risk of crashing especially when travelling at highway speeds.

Top tips to reduce your risk:

  • Plan your journey: Get a good sleep the night before you leave on a long trip and know the route you’re going to take so you can plan to stop at rest points along the way. Take a break every two hours on long road trips and avoid driving during the night when you’d normally be asleep. Long weekends always mean more vehicles on the road so plan ahead by checking road and weather conditions on drivebc.ca.

  • Take a break: Pull over as soon as you start to feel drowsy. Get out and walk around to get some fresh air. If that’s not enough, pull over to a safe area, turn off your car and take a nap. Turning up the radio or air conditioning won’t help. The only cure for drowsiness is sleep; it’s better to arrive late than not at all.

  • Know the signs: We don’t often sense the degree of our own fatigue when we’re driving so it’s important to know the warning signs:

    • You don’t notice a vehicle until it suddenly passes you.

    • You don’t recall driving the last few kilometres.

    • You’re yawning or daydreaming.

    • You find yourself wandering into the next lane.

    • Your driving speed creeps up or down.

    • Your eyes feel heavy or you have difficulty keeping your head up.

Quotes:

“Being well-rested and staying alert at the wheel is the best way to reach your destination safely,” said Todd Stone, Minister of Transportation and Infrastructure. “Consider sharing the driving with a passenger if possible to reduce your risk of getting fatigued. Visit drivebc.ca ahead of your trip to check road conditions and plan your rest breaks.”

“Law enforcement will be keeping watch on B.C. roadways this long weekend to ensure drivers are abiding by the law and making smart choices with their travel plans,” said Mike Morris, Minister of Public Safety and Solicitor General. “We want everyone to arrive at their destinations safely so that means putting your phone away, being alert and paying attention to the road.”

“If you’re setting out on a road trip this weekend, make sure you’re well rested so you stay alert at the wheel,” said Chief Constable Neil Dubord, Chair of the B.C. Association of Chiefs of Police Traffic Safety Committee. “We want everyone to arrive at their destinations safely. Police will be out looking for unsafe drivers across the province this long weekend.”

“The best way to prevent driver fatigue this long weekend is to get a good sleep and start your road trip when you are well rested, typically in the morning, rather than rushing after a full day at work,” said Lindsay Matthews, ICBC’s director responsible for road safety. “The signs of fatigue can sneak up on you so it’s important to recognize the warning signs. Make sure you’ve gotten plenty of rest and plan to stop at viewpoints or rest stops every two hours.”

Additional statistics**:

  • Over the B.C. Day long weekend, five people are killed and 600 injured in 2,400 crashes throughout the province.

  • Over the B.C. Day long weekend, 420 people are injured in 1,500 crashes in the Lower Mainland.

  • Over the B.C. Day long weekend, 84 people are injured in 400 crashes in Southern Interior.

  • Over the B.C. Day long weekend, 20 people are injured in 130 crashes in northern B.C.

  • Over the B.C. Day long weekend, 85 people are injured in 350 crashes on Vancouver Island.

*Driver fatigue is underreported as it’s difficult to measure. Based on police data (2010 to 2014).

**Injured victims and crashes from 2015 ICBC data and fatal victims from police data five-year average (2010 to 2014).

Media contact:
Sam Corea
604-982-2480

Reduction in car thefts in Quebec

Press Release:

MONTREAL, July 20, 2016 – Although we are just a few hours away from the start of the “construction holiday” Intact Insurance, the country’s largest automobile insurer, would like to remind you that thieves will not be taking it easy this summer and might have their eye on you, your vehicle and your belongings.

Statistics Canada’s most recent data published today shows that car theft is still a major issue in Quebec, despite the significant reduction observed over the recent years. On average, 98 vehicles are targeted by thieves, every day.

Vehicle thefts and thefts of items from vehicles
Province of Quebec, 2015

Number

Frequency (per minute)

Frequency (per day)

Vehicle thefts

13,123

1 theft every 40 minutes

36 vehicles stolen every day

Thefts of items
from vehicles

22,495

1 theft every 23 minutes

62 thefts from vehicles
per day

Total

35,618

1 theft every 15 minutes

98 thefts per day

4 useful tips
Here are a few prevention tips that might make a big difference and help you rest easier while you’re on vacation.

  • Close your windows and lock the doors: it’s the first line of defence, and it’s easy to do.
  • Never leave your vehicle unattended with the engine running: don’t make yourself a target for no reason – even for a few moments – and above all don’t tempt opportunist thieves.We’d also like to take this opportunity to remind you to never leave your children or pets alone in a car, even if you only intend to leave your vehicle for a few moments.
  • Tracking device: a vehicle clearly equipped with a tracking device is far less attractive to organized thieves, who typically specialize in selling parts.What’s more, if ever your vehicle is stolen, the odds of recovery are much higher.
  • Don’t leave anything in sight in your car: thieves love electronic devices and items of value, which are resold just as easily as they’re stolen.

Are you adequately insured?
In spite of taking these precautions, you might still fall victim to theft. This is exactly the type of situation when your insurance coverage truly proves its worth.

  • Is your car insured against theft? This optional coverage is highly recommended and could save you from finishing your vacation without any means of transport.
  • Do you have a type of replacement value coverage? This type of coverage, which is also optional, further protects you in the case of a total loss or theft, for example, as you could be indemnified without taking into account your vehicle’s depreciated value.
  • Are items stolen from your vehicle covered by your auto or home insurance?
    If your vehicle is stolen, it’s obviously your auto insurance that will cover its loss.However, if belongings left in your vehicle are stolen, the claim is usually covered by your home insurance which is why insurance is important whether you’re a homeowner or tenant.

Money-saving tips that also ensure peace of mind
Want to lower your insurance premium without giving up any coverage? Here are some smart options.

  • Discount of up to 30% if your vehicle has extensive anti-theft markings, an electronic tag, or if it is equipped with a tracking device recognized by Intact Insurance.This reduction applies to Section B of your auto insurance policy, in other words to coverage for All perils other than collision or upset or Specific perils.
  • Discount of up to 25% with my Driving DiscountTM, a program that rewards drivers who have good driving habits.This reduction applies to your auto insurance policy’s total premium.
  • Discount of up to 15% if you have not made a claim over the last three years.This reduction applies to your auto insurance policy’s total premium.
  • Combine your auto and home insurance policies with Intact Insurance: the amount of your premium will be lower and you’ll reap other rewards, such as only having to pay one deductible for a claim affecting both policies.
  • Increase your deductible: the deductible is the amount you have to cover yourself should you make a claim on your vehicle. By increasing your deductible, you’ll lower your insurance premium.

If you would like to have more information, check the extent of your coverage or discuss Intact Insurance’s offer, please contact your broker, who is best placed to give you advice.

About Intact Insurance 
Intact Insurance is Canada’s largest home, auto and business insurance company, the choice of more than four million consumers.

Intact Insurance products are distributed through insurance brokers working with more than 6,000 brokerages from coast to coast.

Intact Insurance is the official insurer of:

  • the Réseau FADOQ (for home and auto insurance)
  • the Association des Véhicules Électriques du Québec (AVÉQ)
  • the Fédération des clubs de motoneigistes du Québec (FCMQ) and
  • the Fédération Québécoise des clubs quads (FQCQ)

Intact Insurance is a member company of Intact Financial Corporation (TSX: IFC).
intact.ca / intactfc.com

Vehicle theft
Province of Quebec and its main urban centres, 2015

Number

Rate per
100,000
inhabitants

Rate per
100,000
inhabitants

Change
vs 2014

Rate per
100,000
inhabitants

Change over
5 years
(2010)

Rate per
100,000
inhabitants

Change over
10 years
(2005)

Saguenay

214

127.8

+23.2%

-38.9%

-56.2%

Quebec City

581

72.6

-17.0%

-50.6%

-72.1%

Sherbrooke

108

54.3

-41.0%

-73.2%

-86.0%

Trois-
Rivieres

179

115.1

-6.2%

-55.0%

-74.5%

Montreal

7,651

188.2

-15.7%

-47.3%

-71.0%

Gatineau

317

96.6

+11.6%

-47.4%

-65.4%

Total
Province
of Quebec

13,123

158.8

-14.1%

-47.9%

-68.7%

Source: Statistics Canada (CANSIM). Table 252-0051 – Incident-based crime statistics by detailed violations, annual. Site consultedJuly 20, 2016.

Theft of items from vehicles
Province of Quebec and its main urban centres, 2015

Number

Rate per
100,000
inhabitants

Rate per
100,000
inhabitants

Change
vs 2014

Rate per
100,000
inhabitants

Change over
5 years
(2010)

Rate per
100,000
inhabitants

Change over
10 years
(2005)

Saguenay

402

240.0

+40.8%

-28.0%

-20.9%

Quebec City

1,576

197.0

+17.2%

-50.6%

-48.5%

Sherbrooke

280

140.8

+1.6%

-53.9%

-57.5%

Trois-
Rivieres

324

208.3

-3.7%

-56.2%

-35.3%

Montreal

15,863

390.2

-10.2%

-47.6%

-49.2%

Gatineau

622

189.6

+0.4%

-55.9%

-62.4%

Total
Province
of Quebec

22,495

272.2

-6.1%

-47.2%

-47.8%

Source: Statistics Canada (CANSIM). Table 252-0051 – Incident-based crime statistics by detailed violations, annual. Site consultedJuly 20, 2016.

SOURCE Intact Insurance

Simpler & faster auto claims experience for Intact Insurance & belairdirect customers in Ottawa

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Intact Insurance and belairdirect customers in Ottawa can now experience a new simpler, faster and more convenient auto claims process with the launch of a new Intact Service Centre. This is the second Intact Service Centre to open in Canada; the first opened in Calgary in February this year.

“We are making things easier for customers after an automobile accident,” says Carla Smith, Deputy Senior Vice President of Claims,Ontario, Intact Insurance. “We’ve received positive feedback from customers in Calgary about this innovative one-stop service model, and are confident that customers in Ottawa will have an equally great service experience.”

Once at the Intact Service Centre, a customer will be able to drop off their damaged vehicle and leave in a rental vehicle, while Intact Insurance or belairdirect makes arrangements to get the vehicle appraised, repaired and cleaned. Once the vehicle is fixed, the customer picks it up and returns the rental vehicle. There is no need to wait for a repair date, go to a repair shop, or arrange a rental car.

Two more Service Centres are planned for Toronto and Montreal.

Intact Insurance and belairdirect are two of Intact Financial Corporation’s largest brands.

About Intact Financial Corporation
Intact Financial Corporation (TSX: IFC) is the largest provider of property and casualty insurance in Canada with close to $8.0 billion in annual premiums. Supported by over 12,000 employees, the Company insures more than five million individuals and businesses through its insurance subsidiaries and is the largest private sector provider of P&C insurance in British Columbia, Alberta, Ontario, Québec, Nova Scotia and Newfoundland & Labrador. The Company distributes insurance under the Intact Insurance brand through a wide network of brokers, including its wholly owned subsidiary, BrokerLink, and directly to consumers through belairdirect.

SOURCE Intact Financial Corporation

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