Smith v Funk; Amos v Virk [2003]

Case summary

ICBC represented the defendants (Funk and Virk) and were seeking direct production of the plaintiff’s records from a third party.  In Smith, ICBC wanted copies of all the records of Smith’s history of receiving financial assistance from the Ministry of Human Resources. In Amos, ICBC sought medical records from third parties. In both cases the judges made orders allowing the Plaintiffs to remove embarrassing or irrelevant material from them before disclosing the documents to ICBC. ICBC appealed those decisions to the Court of Appeal.

West Coast LEAF’s involvement

In 2003, West Coast LEAF applied to intervene in this case in coalition with the Trial Lawyers Association of BC and the Disability Alliance of BC. West Coast LEAF and DABC were granted leave to intervene, but the Trial Lawyers Association was not. The Appeal from the BC Supreme Court addressed the disclosure of documents in civil cases.

This case provided an important opportunity to address the meaning of relevance and privacy in the disclosure of documents from third parties. The case is of particular interest because of the impact that the disclosure application has on women, particularly poor and/or disabled women who have disproportionate interactions with the Ministry of Social Services, other government officials and social service agencies. If ICBC won, poor women could be forced to disclose all kinds of embarrassing and irrelevant information to ICBC and other institutional and individual defendants in civil cases.

The issue has elements of intersectionality – gender and poverty and disability. It is of particular relevance to women’s equality and access to justice for a variety of reasons, including the fear that an ICBC adjuster can read about a woman’s therapeutic abortion or sexual assault history, which may in turn prevent women from seeking damages in personal injury matters. It is essentially the civil side of L.C. v Mills, [1999] 3 S.C.R. 668.

Case documents

Factum – Court of Appeal

Decision – Court of Appeal