Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing the merits of a claim for litigation privilege.
In today’s case (Buettner v. Gatto) the Plaintiff was injured in a collision and advanced a claim for damages. The Plaintiff retained counsel. Liability was initially admitted and then denied by ICBC. The Plaintiff brought an application for production of various relevant documents and ICBC refused disclosure on the grounds that litigation was reasonably contemplated once Plaintiff counsel was assigned.
The Court rejected this finding this position was based on little more than a bare assertion. In ordering production of the requested documents Master Caldwell provided the following reasons:
 If this argument is correct, all that any or all adjusters must do in any or all motor vehicle cases is determine, at the instant that the incident is reported, that he or she is going to deny liability and/or the presence of damages without the need to show any basis or accountability for such decision. Having done so, that will virtually ensure that litigation will be required to resolve any claim for loss. Thereafter, having created the virtual certainty of litigation, the defence will be able to reasonably argue that any and all investigations done from the instant that the incident is reported is for the dominant purpose of the conduct of the litigation which they ensured by the arbitrary denial of fault or damage.
 In my respectful view this circular argument runs counter to the letter and spirit of the Hamalainen case, the numerous cases which were cited in and followed by Hamalainen and the numerous cases which have cited and have followed Hamalainen. It runs counter to the stated object of our Supreme Court Civil Rules, B.C. Reg. 168/2009, the securing of the just, speedy and inexpensive determination of every proceeding on its merits. It runs counter to the Supreme Court of Canada decision in Blank v. Canada (Minister of Justice), 2006 SCC 39 and its findings at paras. 60 and 61 where it comments in affirming the dominant purpose test and the role of litigation privilege, that:
The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.
The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client
While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.
 Inherent in the reasonable prospect/dominant purpose test must be the expectation or requirement that there be at least some evidence of bona fides, due diligence or accountability on the part of the party seeking to rely on the prospect of litigation, which was created by their own actions, to support their claim of litigation privilege. Absent such requirement the test itself becomes meaningless. This is particularly of concern where, as here, the same insurer provides coverage for both parties and, presumably, owes each a duty of some form of meaningful investigation and determination of facts before reaching a decision on an issue as important as fault or liability for a motor vehicle accident.
 I find that there is no evidentiary basis provided to support the decision of Ms. Hilliam to deny liability. Her unsupported decision cannot be used as justification for her to conduct a proper investigation into the facts of this motor vehicle accident while cloaking that investigation in a claim of litigation privilege. The time line and analysis of the court in Hamalainen is applicable to this case and to the evidence here, save as to the assertions of Ms. Hilliam which I reject. As in Hamalainen, the claim of litigation privilege regarding documents 4.7 to 4.12 inclusive, which documents were created prior to the June 17, 2013 form letter communicating the denial of liability, fails and all such documents are ordered produced forthwith and unredacted.
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, assessing damages for a chronic neck injury caused by a motor vehicle collision.
In today’s case (Renaerts v. Renaerts) the 24 year old Plaintiff was injured as a passenger in a 2009 collision. She sustained a variety of injuries that made a quick recovery but also sustained a neck injury which remained symptomatic to the time of trial and had a generally guarded prognosis. In assessing non-pecuniary damages at $75,000 Mr. Justice Brown provided the following reasons:
 Given accepted evidence as a whole, I agree with Mr. Shew that rehabilitation should focus on healthy activity, core strengthening, and a guided exercise program. I do not see this form of therapy requires only one assessment, off you go, and good luck to you. A kinesiologist and properly trained fitness instructor would encourage the plaintiff to expand her functioning and strength within safe medical limits and increase her confidence. Further, the plaintiff would benefit from instruction from her family physician, at no cost, on how to make the most effective choice and use of pain medication. The plaintiff had consumed six to eight pills a day…
 In summary, while the plaintiff’s symptoms and limitations are likely to be permanent, and the general tenor of the opinions on prognosis is at best guarded, there are also reasonable grounds to expect that through strengthening exercises, increased activity, and appropriate use of the treatment modalities and the program just outlined, the plaintiff’s symptoms and level of functioning could see some improvement on a more sustained basis…
 Chronic mechanical back pain is her only really significant injury, as the others cleared up within a couple of months or so of the accident. The record shows that she made some improvement with chiropractic treatment and physiotherapy, but I agree with those medical opinions that have opined the emphasis should be on strengthening, fitness and suitable activities. I do not see chiropractic adjustments and physiotherapy and the assistance of a kinesiologist and fitness instructor as the means of a cure, rather, as the means of helping her progress, and through strengthening, building self-confidence, be better able to cope with her limitations and reduce them, to some degree. This is not a case where the plaintiff has had to give up on her recreational activities. She is capable of independent living, albeit, she will require some limited assistance with housekeeping, such as annual cleaning. I have made some allowance for loss of homemaking capacity; but in my view, considering the nature of her homemaking limitations, $5000 is a reasonable representation of her loss in that area.
 The plaintiff has sought to get on with her life to the best of her ability, with the encouragement of her friends, who amply attest to her limitations and the pain and limitations she has experienced. It is important to note that the plaintiff sustained these injuries at a time when she was somewhat vulnerable, not living at home, supporting herself and having to manage what was a fairly complex life and difficult set of responsibilities.
 I award the plaintiff $75,000 for non-pecuniary damages, inclusive of loss of homemaking capacity.
Today’s guest post comes from B.C. injury claims lawyer Erik Magraken
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a claim for damages following a hit and run collision.
In today’s case (Li v. ICBC) the Plaintiff was injured in a 2010 rear end collision. After speaking with the at fault motorist the parties agreed to pull over and exchange information. The Defendant fled the scene. The Plaintiff claimed damages directly from ICBC pursuant to s. 24 of the Insurance (Vehicle) Act.
At trial her claim was dismissed with the Court finding she did not take all reasonable steps after the collision to identify the at-fault motorist. The Plaintiff argued ICBC could not rely on this defense as they had failed to advise her of her investigative obligations after promptly reporting the claim to ICBC. Mr. Justice Armstrong rejected this argument finding ICBC has no duty to tell their own insured customers of their obbligatos in order to successfully claim damages caused by unidentified motorists. The Court provided the following reasons:
 The plaintiff contends that ICBC’s failure to notify the plaintiff of her obligations to take steps to identify the owner/driver as a precondition to obtaining judgment should be interpreted as waiving their right to rely on that defence. The claimant relied on Dunn where Chiasson J.A. described the two elements of a waiver claim:
 As the trial judge recognized, the elements of waiver are “that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them”:Saskatchewan River Bungalows at 499.
 The plaintiff argues that while ICBC does not have a legal or statutory obligation, it has an equitable obligation to inform its insureds of their obligations and consequences following an accident caused by an unidentified motorist’s negligence or to obviate the possibility of the claimant assuming that ICBC has accepted the claim without the need to take further steps.
 Victims of unidentified motorists who do not take steps required under s. 24(5) lose access to the $200,000 fund designed to compensate the innocent victim. The plaintiff contends that claimants face serious losses when claims are defeated because they failed to take “efforts sufficient to satisfy section 24(5) (that) could have been easily and inexpensively satisfied”.
 Typically claimants fail to take steps to identify the negligent driver in the expectation that ICBC is administering and adjusting their claim and will not act to their prejudice. This includes an expectation that ICBC will bring s. 24(5) to their attention. In this case there was no evidence of what expectations the plaintiff held concerning ICBC’s role.
 The plaintiff argues that ICBC is overwhelmingly in the best position to inform their insureds on the process, and when they fail to do so they knowingly allow the injured claimant to fall into the trap that is s. 24(5).
 Nevertheless, the evidence in this case does not satisfy me that in its administrative processing of this hit-and-run claim ICBC consciously abandoned its rights when staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision or practice of withholding information concerning s. 24(5) of the Act while at the same time addressing Ms. Li’s claim could not operate as a waiver of their right to rely on the provisions of s. 24(5) to obtain judgment.
 Nothing in the evidence satisfied me that ICBC had considered the plaintiff’s claim and “unequivocally and consciously” elected to abandon its protection under s. 24(5). Further, if a hit and run claim proceeds to trial, ss. (5) is not a section of the Act that could be waived by ICBC; the section prevents the court granting judgment unless satisfied that the claimant has met the obligation under ss. (5). Although I do not decide the point, it seems to me nothing would prevent the parties from making admissions of facts necessary to prove compliance with the subsection; judgment could then be granted.