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A personal injury lawsuit against ICBC.

• What are the steps in a personal injury lawsuit
• The steps are as follows:

  Filing a Notice of Civil Claim: Your lawyer files with the court a Notice of Civil Claim against the person or people who may have caused the accident and the owners of the vehicles they were driving. This starts your legal action and sets out in general terms what types of damages you are claiming and why the someone is at fault for the accident.

  Exchanging document lists and documents: Provide your lawyer with all documents that may be relevant to your claim. Your lawyer's assistant will prepare a list of your documents and request a list of every relevant document that ICBC and the person who injured you may have.

  Both sides can claim "privilege" (confidentiality in law) on certain documents, and either side may challenge any claim of "privilege. " (Note: The law on "privilege" is beyond the scope of this website).

  Your document list must include all documents that are or have been in your possession or control and that could be used by you or ICBC at trial to prove or disprove a material fact in your lawsuit and all other documents your lawyer intends to refer to at trial.

  You can obtain additional documents from ICBC by way of a Freedom of Information (FOI) request. Two examples of what we can obtain from an FOI request are:

  • adjuster's notes of what your family doctor or physiotherapist said to the adjuster, and
  • decisions on whether or not to budget for video surveillance.

  Replying to a Demand for Particulars from ICBC's lawyer: your lawyer has to respond to this by giving general statements of what your various claims for damages are. For example, what is your wage loss? what are your out of pocket expenses?

  Collecting records in the hands of:

  • your doctors and other treatment practitioners (called "clinical records"),
  • your employer,
  • WorkSafeBC, and
  • your disability insurer.

  ICBC will try to obtain as many of these records as possible. You have the right to privacy regarding documents and records or parts of records that could be embarrassing and confidential if they are not relevant to your claim for damages.

  Examination for discovery: This is when your lawyer asks the person who caused the accident questions under oath, and ICBC's lawyer asks you questions. It takes place in a boardroom at a court reporter's office or law office-not in a courtroom. The only people present are the lawyers, the parties to the lawsuit and the court reporter. By agreement, a spouse who was not injured in the accident may also attend for moral support.

  If the law does not require you to answer a certain question, your lawyer will object to the question and tell you to not answer it. He will object to questions on subjects that are:

  • not relevant to your case according the legal definition of this word, and
  • privileged (confidential in law) such as "what experts have you seen at your lawyer's request "

  If we are your lawyers we will meet with you to help you thoroughly prepare for the examination. If your sworn testimony contradicts the clinical notes and reports of your doctors and other treatment practitioners, or contradicts your statements to the police and to ICBC after the accident, your credibility will be reduced; therefore, it is well worth your time to review these documents before your discovery.
  For more information about your discovery see: http://www.icbcinjurylawyers.ca/pilawsuit_ans1.html
  

  Most ICBC lawyers are not rude or obnoxious at your discovery. In fact, many have learned from experience that they obtain many more favourable admissions from injured claimants by being very nice to them. The ICBC lawyer will ask you about:

  • your state of health, your activities and your employment before the accident,
  • the accident itself, and
  • how you have progressed over time since the accident in terms of your pain, psychological state, limitations, activities, household chores and work,
  • the steps you have taken to get better and the efforts you made,
  • your present condition.

  ICBC's lawyer may also ask you what ‘percent' you improved at various times since the accident. If you cannot answer such a question on a percentage basis, you do not have to do so; you may simply describe how you felt and what you have been able to do during various periods since the accident.

  Mediation: After you have sued, and up to 77 days before your trial date, either ICBC's lawyer or your lawyer may deliver to the other side a form called a 'Notice to Mediate'. The lawyers agree on an independent mediator in whom they both have confidence, and then set a date for the mediation. The cost of the mediation is borne equally by each side. You may claim reimbursement of your share of this cost as part of your settlement or court award.

  Mediations are used much less than they were a few years ago except in more severe cases. Negotiation is now used as the preferred method of resolving claims in most cases.

  Sometimes ICBC uses a Notice to Mediate to force you to attend a mediation before you are ready to try to settle your claim. You may be experiencing ongoing problems, or you may want to wait until a medical specialist is able to give a prediction of your long-term future. You may have no choice but to attend the mediation, but you don't have to settle at the mediation unless you want to.

  Seven days before the mediation, both sides must deliver a written mediation brief. You and your lawyer should meet to read and discuss the mediation briefs from both sides and thoroughly prepare for the mediation.

  The mediation starts with both lawyers giving brief opening statements. Then both sides informally discuss the issues of the claim. The adjuster will often ask the injured person a number of questions to get a feeling for how the injured person would present in court. Often, it's the first time the adjuster has met the injured person, as ICBC usually appoints a new adjuster after a claimant hires a lawyer. All the adjuster has seen is a lot of paper.

  The next phase of the mediation is the exchange of offers and counter-offers. Between each counter-offer, one of the two sides goes into a separate "breakout room. " Then each side separately and confidentially discusses their position and negotiating strategy with their lawyer. Negotiations may continue over the next hour to several hours. A good mediator can make a real difference in achieving a fair settlement.

  Most of the time, a settlement is reached by the end of the mediation. If your case does not settle at the mediation, negotiations may continue at a later date. If the two sides cannot arrive at a settlement agreement, your case proceeds to trial.

  Delivery of expert reports: Both sides must deliver their experts' reports 84 days before the trial date. The judge at the trial may order that less notice is required.

  Delivery of witness lists: about a month or two before trial and one week prior to what is called a trial management conference between the lawyers and a judge each side must prepare a list of the names of all their intended witnesses. This is when you find out exactly who ICBC intends to call as witnesses against you. Its list of witnesses will often include a person who took video footage of you.

  Delivery of video and other "demonstrative evidence": The Evidence Act of British Columbia is very generous to ICBC. ICBC doesn't have to deliver videotapes of you until only 7 days before your trial begins. This does not give your lawyer and experts a lot time to review it and prepare a response to this evidence. ICBC videotapes won't necessarily hurt your case if your doctor knows you have tried to live as normal and active a life as possible and that you have paid for this by experiencing pain afterwards. The video likely won't show you in pain and resting after you did an activity, but perhaps family members or friends will testify to this.

  Trial: Most cases settle before the injured person goes to trial. When both sides are unable to reach a settlement, the case proceed to trial. No one is required to proceed to trial, but may do so by choice. It is an injured person's choice whether he or she accepts ICBC's last offer before the trial or has the court decide their case. This decision is based on an assessment of the chances of recovering more than ICBC's final offer. It is also based on a number of personal factors, including one's willingness to have one's personal life discussed in detail in a courtroom.
  

  In more serious or complicated cases, the trial may be held before a judge or a judge and jury of eight members of the public. Either ICBC or the injured person may elect to have the trial before a jury. Many juries have given much larger awards than what a judge would have made on the same facts. Because of this, ICBC is reluctant to elect a jury in some cases. This is especially so when the claimant is credible, or has injuries that are visible, may elicit a lot of empathy, or show up in x-rays, CT scans, MRI scans or other tests. You should discuss with your lawyer whether or not he should send ICBC's lawyer a Jury Notice in your case. This will keep the option of a jury trial open to you if ICBC decides not to proceed by jury trial. You can always change your mind about a having a trial by jury closer to your trial date.

  You do not have to attend the trial except for the time when you are testifying.

  Assessment of cost and disbursements: At the end of the trial, the judge decides whether the injured person or ICBC must pay the other side a contribution towards their legal fees and the expenses ("disbursements") of fighting the case. The side to whom the judge awards costs and disbursements then prepares a "Bill of Costs" and presents it to the other side. If the two sides cannot agree on an amount, then a Master, an officer of the Supreme Court, decides how much to award.