If you have a personal injury or ICBC claim, the general rule is that you must either settle the claim or start a court action, within two years from the date of loss.
Otherwise, your claim will be barred. Note that this two year limitation period does not start until you turn 19.
Small Claims Court vs. Supreme Court of BC
An action is commenced by filing a Notice of Civil Claim (“NOCC”) either in the Supreme Court of British Columbia, or Small Claims Court (aka Provincial Court – Small Claims Division).
While there are some advantages to filing the action in Small Claims Court (less expensive, more informal, quicker trial dates, etc.) it is almost always better to proceed in Supreme Court. The main reason is that Small Claims Court has a monetary limit of $25,000, you cannot receive any more in that court. In Supreme Court, there are no monetary limits. Also, there are pre-trial procedures available in Supreme Court that do not exist in Small Claims Court, which help the parties reach a settlement or be better prepared for trial if the case does not settle.
The Roles of Plaintiff & Defendant
The injured party who commences the action is the plaintiff. The owner and driver of the negligently operated vehicle are named as defendants. The owner is vicariously responsible for the negligent conduct of the driver, unless the vehicle was stolen or driven without consent. In cases where the accident involves multiple vehicles, it is important to ensure that all owners/drivers who may share responsibility for the accident are named in the lawsuit. Likewise, in some cases, other parties need to be added to the lawsuit, such as road maintenance contractors, municipalities or commercial hosts.
Once the NOCC is filed, the plaintiff must have it served on all defendants named in the lawsuit. Once served, the defendants must file a Response to the NOCC. Once that is done, the lawyers for both sides will begin exchanging documents, arranging examinations for discovery, and setting trial dates.
The Importance of Having Your Own Lawyer
If you have an ICBC injury claim, you should not attempt to prepare and file a NOCC without consulting a qualified lawyer. Prepared improperly, you risk having your claim dismissed. Also, do not wait until the eve of the limitation period expiry before seeking legal advice, as it may take time for the lawyer to ascertain who should be named in the lawsuit and the appropriate allegations of negligence.
Examination for Discovery
What is an Examination for Discovery?
An examination for discovery is an oral examination taken under oath. It is conducted by the lawyer who asks questions of the opposing party, with both lawyers present (ie. you will not have to face the ICBC lawyer alone). The procedure is done before a court reporter so there is a record of the proceeding. It is a pre-trial procedure which allows parties to get a better understanding of the other side’s case. This helps the parties define or narrow the issues in dispute, helps promote settlement through a better understanding of the case, and also helps the parties be prepared for trial, having obtained important evidence through the discovery.
What Questions Will ICBC Ask?
- his/her background (age, marital status, work and education history, prior medical issues);
- how the accident happened (in great detail if liability is in issue);
- the injuries suffered in the accident, including how the injuries have progressed over time;
- medical practitioners who have assessed and treated the plaintiff;
- how the injuries have impacted the plaintiff’s life (social, recreational, household activities);
- how the injuries have effected or altered the plaintiff’s educational or employment pursuits, and
any expenditures incurred by the plaintiff due to the accident.
Do I Need a Lawyer for an Examination for Discovery?
Everything you say in an examination for discovery can be admitted as evidence in court. Furthermore, ICBC has control of what goes in and what does not. If you are going to attend an examination for discovery, it is imperative that you meet with your lawyer in advance and be well-prepared. It is an important part of the litigation process and can have an impact on the outcome of your claim.
See our ICBC Claim Resources for more information on:
After you commence a Supreme Court action for your ICBC claim, you have certain legal obligations to disclose all relevant documents (with some exceptions) in your possession or control, and to submit to an examination by the ICBC lawyer (oral questioning), if necessary. These obligations extend to all parties to the litigation.
What is the Purpose of Discovery Procedures?
The purpose of these discovery procedures is to ensure that the litigation process is open and fair, that parties do not “hide” relevant documents or information that may prove harmful to their case, or that parties cannot engage in “trial by ambush” by not disclosing information until the eve of trial which may damage the opponent’s case or how they would conduct the litigation.
What Documents Will be Disclosed?
“Documents” is given a broad meaning in the context of litigation and can include computer files, photographs, film, sound recordings or any other information recorded or stored by means of any device. Typically, in an ICBC lawsuit, the kinds of documents that are disclosed include medical records, employment or academic records, tax returns, WorkSafe BC records, and police accident investigation records. Also, ICBC may try to obtain information stored on a plaintiff’s personal computer or social networking websites, so if you have an ICBC claim, you need to exercise caution.
The rules require that documents in the “possession or control” of the party need to be disclosed, so records that a plaintiff does not possess, but could obtain from a third party (say, records from the family doctor) usually must be produced. The court can order the third party to produce the relevant records if they are not responding to the lawyer’s requests.
A party must disclose any documents which he/she intends to rely on at trial, or that could be used to “prove or disprove a material fact,” whether the documents are helpful or hurtful to the case. In other words, the parties are not free to pick and choose what they disclose. What is a “material fact” is sometimes a matter of dispute, but courts tend to lean towards ordering disclosure unless there are compelling reasons against it. Frequently, records are produced but irrelevant entries contained in the records can be excised before being sent to the other side. A good example is doctor records, which may contain entries that are both relevant and irrelevant to the injury claim. Likewise, certain documents may not have to be disclosed because they are “privileged” from production. This includes: communications with a lawyer; documents that have been generated specifically for the lawsuit, such as medical opinion reports requested by the lawyer for the case (as opposed to records kept by the doctor). If the report is not helpful, then usually it does not have to be produced to the opposing side.
ICBC Document Disclosure
Finally, if you are concerned about producing records because you don’t want them disclosed to others not involved in the litigation, you need not worry. There is an implied undertaking of confidentiality which means that ICBC cannot use or disclose documentary or oral information obtained except for the sole purpose of that litigation. So, for example, ICBC is not allowed to report information about you to Revenue Canada that was acquired as part of your case. However, anything relevant may be disclosed at trial, so it can be helpful to retain a skilled lawyer to negotiate the best settlement for your claim without going to trial.