A new decision from the B.C. Court of Appeal is an important reminder as to how important it can be to retain a lawyer before dealing with ICBC after an accident. In Raj v. Khosravi, 2015 BCCA 49, a taxi cab driver was injured when his taxi was struck by a vehicle that had run a stop sign.
Liability for the accident was initially admitted by ICBC on behalf of the defendant driver. During ICBC's initial interview with the taxi cab driver, the adjuster formed the opinion that the taxi cab driver was making statements that were inconsistent with his physical demeanor.
In particular, the adjuster noted that while the taxi driver claimed that he had walked 30-40 blocks to attend the meeting with ICBC, he never removed his thick jacket or scarf and he was not sweating in the warm room where the meeting was held.
Further, the adjuster observed that the driver had no difficulty sitting for the one-hour duration of the meeting despite claiming that he had suffered severe injuries. The adjuster also considered the taxi driver's reactions to be inconsistent with someone who had been involved in a major collision.
The purpose of the meeting was for the taxi driver to provide a statement regarding the circumstances of the accident and the extent of his injuries. Section 97(1) of Part 7 of the Regulations to the Insurance (Vehicle) Act provides that it is the obligation of an insured to: (i) promptly notify ICBC of an accident; (ii) provide a report or give a statement within 30 days of the accident; and (iii) furnish proof of a claim within 90 days of the accident.
When SMR Law acts for an injured party and is retained fairly shortly after an accident, we are typically able to assist our clients in providing their report to ICBC. Often, this is done in writing as opposed to a face to face meeting between our client and an adjuster.
In Raj, as a result of what occurred during the taxi driver's meeting with the adjuster, ICBC commissioned a private investigator to undertake surveillance on the taxi driver. The potential claim was also referred by the adjuster to ICBC's "Low Velocity Impact" department for a review of the damage to the vehicles. After the LVI group prepared a report that was also skeptical of the driver's claims, the matter was referred within ICBC to its fraud department.
The taxi driver then met with an ICBC fraud adjuster and investigator and provided a further statement. The taxi driver still had not retained legal counsel to assist him. After that second interview, and presumably with the benefit of the surveillance report that was ordered after the first interview, ICBC advised the taxi driver that his claim was being denied, in part because ICBC believed that he had given a wilfully false statement about the nature and extent of his injuries.
At that point, the taxi driver retained legal counsel and a legal action was commenced. The taxi driver sought production of ICBC's surveillance report but ICBC refused to provide the report, citing litigation privilege over its contents.
After three court hearings on the issue, the Court of Appeal held that ICBC did not have to produce the report because it was commissioned by ICBC in reasonable prospect of litigation. At the end of the day, the taxi driver is left to pursue his case against ICBC without the benefit of accessing the ICBC surveillance report.
I have been involved in a number of cases where the defendant insurer has commissioned a surveillance report, and these reports can sometimes play a very important role in the outcome of the case. It is of course impossible to say what might have happened had the taxi driver retained legal assistance prior to his interviews with ICBC but I think it is fair to expect that, in many cases, advice at such an early stage of a potential legal matter can shape and influence the direction a case may head.
If you have any questions about your particular ICBC claim, feel free to contact me.