ICBC and the cost of litigation
As noted in previous posts, ICBC is currently applying for a rate increase. Part of the rationale for that increase has been stated to be the cost of litigation. I have previously highlighted that much of those costs are controlled by ICBC themselves. They are an institutional litigant, with deep pockets. While most of my individual car accident client’s would much rather have their case settled quickly and without having to go too far down the path of litigation, it is ICBC that really controls what has to happen.
An oral decision given by the court in August was recently posted on the British Columbia Supreme Court’s website demonstrating just this. In Mirzai-Sheshjavani v. Ho ICBC was asking the court to allow them to have the plaintiff examined by an orthopedic surgeon of their choosing. While this on its own is not unusual, and is often a part of litigation, what made this case more unique was that ICBC was asking to have the examination done very close to the trial date. We have Rules of Court which govern how all proceedings are to be handled. One of those rules requires that if you want to rely on the opinion of an expert, which is what ICBC was hoping to do by having this examination, you have to serve that opinion on the other party 84 days before the trial. ICBC in the application that was before the court was trying to get permission to rely on an opinion that would be served much less than the 84 days before trial that all other litigants have to comply with.
After the judge commented on the frequency of these types of applications from ICBC he said as follows:
…it is becoming the case where a fair proportion of the short-leave applications that we hear on a daily basis relate to just this subject.
The judge then refers to the submissions that were made by the plaintiff’s lawyer in opposition to the application that ICBC was making and states as follows:
His conclusion and his assertion is that this represents an institutional litigant who is, as he termed it, sitting on their hands until the trial date approaches. I do not know. I do not know whether that is the case or not. I suspect it may be because litigation is being driven by adjustors and not by counsel. I believe it may be the case that counsel are not being given enough latitude to exercise their professional judgment. I do not know.
The closer the case gets to trial, the more expensive the litigation will be for all parties. ICBC sitting on its hands until close to the trial date, not entering into appropriate settlement discussions and not investigating their case sufficiently to enable them to negotiate a resolution, drives up the cost of litigation. Hopefully when the BC Utilities Commission considers ICBC’s application for the rate increase they will take into consideration this very factor that ICBC has completely under its control and which is contributing to any actual increased costs.