13 Apr Employment Records

During the course of a lawsuit, ICBC will often engage in a fishing expedition to obtain records that could potentially hurt your case, including records from an employer or treatment provider, without having first established that the records could be relevant.

This occurred in the recent decision of Dhaliwal v. Ram, 2015 BCSC 374. In this case, ICBC sought to obtain records from two of the plaintiff’s pre-accident employers. The records were sought on the basis that ICBC wanted to establish that perhaps the plaintiff could not hold a job before the accident and to find out what kind of relationship the plaintiff had with his employers.

In response to this application, the plaintiff argued that this was a fast-track case (meaning it was valued at $100,000 or less, or trial could be completed in 3 days or less), the records were not relevant, past wage loss was limited to $2,000, the documents in support of the past wage loss claim had been produced and the plaintiff was not asked questions about his relationship with his prior employers at his Examination for Discovery.

Master Harper found that this application had been brought on the mere possibility that the employment records could lead to a train of inquiry that could assist ICBC and that this was an insufficient basis for the order. She adopted the reasoning of an earlier decision which stated that the party seeking production of the records had to prove there is a reason beyond a mere possibility that the records may be relevant.

Master Harper also considered proportionality and found that the order sought by the defendants was disproportionate to the claim presented by the plaintiff. She dismissed the application and concluded that it was purely speculative.