09 Dec ICBC Tries Unsuccessfully to Argue Adverse Inference

At the trial of Jantzi v. Moore, 2020 BCSC 1489, the Plaintiff did not call evidence from any of the three family physicians who treated her before and after the accident, the clinical counsellor she was referred to or the psychologist who treated her.  The only medical or other expert evidence called by the Plaintiff was from experts retained by her legal counsel. The judge had to determine if this should result in a finding of adverse inference with respect to the seriousness of the Plaintiff’s symptoms.

The Plaintiff submitted it was not appropriate to make an adverse inference. Her clinical records were fully disclosed, except for one family doctor who did not provide records. The records included those from her family doctors and hospital records which included the notes of a psychiatrist. The judge noted that it was open to ICBC to call any of the Plaintiff’s treatment providers.

A general denial of causation was raised in ICBC’s trial brief. This included objections to the admissibility of all of the Plaintiff’s expert reports, with the grounds not specified but to be provided. The Plaintiff’s counsel understood ICBC’s focus was disputing loss of future earnings. The Plaintiff submitted ICBC’s adverse inference argument was an attempt to conduct defence by ambush.

While the judge found that the Plaintiff’s memory about pill taking was flawed, the rest of her testimony was not flawed. The records of her symptoms did not differ from her testimony.

The judge held that ICBC had extensive disclosure of the Plaintiff’s medical and treatment records. Plaintiff’s counsel provided a reasonable explanation for not calling the witnesses. The judge did not find it likely that those witnesses would have given harmful testimony about the Plaintiff. As such, the judge declined to exercise her discretion to draw an adverse inference in this case.