13 Sep ICBC Withholds Evidence Contrary to Court Order – Now Must Pay $155k Costs Award
The Honourable Mr. Justice Funt, of the British Columbia Supreme Court, lambasted ICBC last week for withholding evidence in a personal injury trial. Justice Funt rebuked ICBC for their misconduct and, for the first time ever, ordered them to pay the plaintiff’s lawyer’s full contingency fee as special costs (Norris v. Burgess, 2016 BCSC 1451).
Many plaintiffs injured in motor vehicle accidents rely on contingency fee agreements in order to fund a claim. As Justice Funt stated, the contingency fee agreement was of benefit to Ms. Norris. It allowed her to bring the litigation, without funds, and to achieve a significant result.
The central issue in the Norris v. Burgess decision hinged on surveillance video of Ms. Norris, who alleged she was injured in a motor vehicle accident. ICBC paid $23,000 for surveillance (as well as some witness interviews) of Ms. Norris over the course of a few years following the accident. ICBC presumably hoped to use this video evidence to discredit Ms. Norris’s claim.
On October 20, 2015, the Court ordered the defence to inform Ms. Norris’s lawyers of any video surveillance in their possession within three days. ICBC had video surveillance from 2015 which showed ambulance attendants whisking Ms. Norris off to hospital after she became weakened in a coffee shop but did not disclose this video by the deadline. In fact, they did not disclose it until three weeks after the jury trial had started. As Justice Funt noted, the disclosure of the coffee shop video by ICBC came too late for Ms. Norris’s lawyers to make effective use of it. Justice Funt also found, and the ICBC lawyer admitted, that this footage would have been harmful to ICBC’s case.
What this means is that ICBC spent thousands of dollars surveilling Ms. Norris and did not disclose the results of that surveillance, despite that it would have helped establish the legitimacy of her claim and despite a court order requiring disclosure of all surveillance to her lawyers.
Even though ICBC failed to disclose the 2015 video, Ms. Norris won her trial and the jury awarded her $462,324 in damages. She then asked the Court to order that the defence pay for her full legal costs.
While the defence lawyers attributed the late disclosure of the video to an error by an overworked ICBC adjuster, Justice Funt found that any of a number of inexpensive, easy steps along the way could have avoided the result. He concluded that ICBC’s conduct amounted to a casual disregard of a court order and he held that this justified awarding special costs against them.
Ms. Norris contingency fee agreement required her to pay her lawyers 30% of the jury award, or $155,340, including tax. Justice Funt ordered ICBC to pay that amount to Ms. Norris as special costs, an unprecedented order that serves as a well-considered and proportionate rebuke for a litigant that showed “casual disregard” for the rule of law.
If you’ve been injured, you need representation to ensure that ICBC plays fair. Call Acheson Sweeney Foley Sahota today.