Court refuses to bar surveillance of plaintiff attending at IME; says it is a "legal discovery tool"

In reasons for judgment released this week, the court in Marques v. Stefanov, 2016 BCSC 2589, refused a plaintiff's application for a condition barring surveillance on his attendance at an IME.  The court refused to impose a blanket condition against surveillance of the plaintiff saying it was an "otherwise legal discovery tool".  Madam Justice Dorgan said:

[1]             THE COURT:  The application in this motor vehicle accident case concerns an independent medical examination of the plaintiff sought by the defendant.

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[6]             The condition the plaintiff seeks to impose as a condition of attendance, which is not agreed to, concerns surveillance.  The plaintiff asserts that it would be appropriate for the court to order that the defendant not be entitled or not be able to surveil the plaintiff as he travels to and from the independent medical examination appointment.  It is agreed between the parties that there will be no surveillance of the plaintiff during the course of the medical examination.

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[18]         Without more, and with all due respect, I do not consider myself bound by these statements in respect of surveillance.  To impose the general conditions sought by the plaintiff would, in my view, unduly restrict the defendants' right of discovery without compelling evidence of why it would be reasonable to do so and why it would be required and necessary to do so in order to achieve parity between the parties.

[19]         Such a general “rule”, if imposed, would, in a motor vehicle case, limit a defendant's ability to surveil a plaintiff where, for example, the plaintiff is compelled by a subpoena to attend court.  It could be in an unrelated case, but compelled nonetheless to attend court in order to provide evidence.

[20]         That, in my view, is a restriction which ought to be avoided unless the evidence and the arguments convince a court in the exercise of its discretion that such a restriction is necessary to achieve parity between the parties.  I know that Mr. Collins, during argument, suggested that a plaintiff could be surveilled at the courthouse and indeed Mr. Collins points out that within the courthouse itself there are signs to indicate that surveillance is in place.  That, in my view, is different than having a defendant in a case like this conduct surveillance.  A defendant would not be able to surveil a party inside the courthouse.  The surveillance signs Mr. Collins refers to are signs to indicate security surveillance is in place.

[21]         In my view, the imposition of a broad, all‑encompassing restriction, as is sought here, of an otherwise legal discovery tool should be avoided.  Such restriction, if any, should be imposed by a court exercising discretion judicially, on evidence, which would lead the court to conclude that the restriction was necessary in order to achieve parity between the parties, and is therefore a reasonable restriction of an otherwise legal discovery tool.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/25/2016BCSC2589.htm

 

Court Awards $155,000 in Special Costs Against ICBC for Late Disclosure of Video Surveillance

In the recent decision of Norris v. Burgess, 2016 BCSC 1451, the court awarded $155,340.86 in special costs against ICBC as punishment for late disclosure of video surveillance, in circumstances where the court had previously ordered that all video surveillance be disclosed.  The court said:

[66]       ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province.

[67]       …The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.

[76]       The reputation of the court was also affected.  Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.

[78]       In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1451/2016bcsc1451.html?resultIndex=1

Court Finds Plaintiff "Not Truthful" after viewing ICBC Surveillance Video

In the recent decision of Churath v. Cheema, 2016 BCSC 2303, the court found that the plaintiff was “not truthful” to both the court and his treating doctors, on the basis of video surveillance obtained by ICBC.  The court said:

[56]         The plaintiff complains of pain and limitations in movement. He has informed vocational and rehabilitation consultants of severe limitations to his capacity to function. I am not persuaded, however, that he has always told the truth to these experts nor to this Court.

[62]         Mr. Gautam invites me to ignore the video. I do not consider that would be appropriate. I find the plaintiff has not been forthright with this Court when describing his pain and disability. I believe he is more physically able than he wants this Court to believe.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2303/2016bcsc2303.html?resultIndex=1