COURT CASES on REQUEST for PARTICULARS

 

Pursuant to Rule 3-7(23) of the British Columbia Supreme Court Civil Rules, a party to an ICBC claim has the right to request “particulars” from the other party. Essentially what this means is that the requesting party is looking for more specific information with respect to what another party has plead in their respective pleadings. For example, if the Plaintiff is seeking damages for loss of income, then ICBC’S lawyer may make a request for particulars of that specific head of damage, such as dates and amounts.

 

In Yousofi v. Phillips, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for injuries, seeking damages for items such as loss of income, diminished earning capacity, past treatment costs, future care, and special damages (out-of-pocket expenses). ICBC’S lawyer demanded particulars with respect to these items, which the lawyer for the Plaintiff refused. ICBC’S lawyer then brought a court application, however the Court sided with the Plaintiff, and refused to order the Plaintiff to provide ICBC’S lawyer with the particulars that were sought. The Court commented on the limited use that a request for particulars should have in ICBC injury claims.

 

[3]             The entitlement of a party to particulars is …… discussed by Mr. Justice Joyce in Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371, beginning at paragraph 9.

 

[4]             In that case, His Lordship makes the point that:

 

Particulars are provided to disclose what the pleader intends to prove. How that party intends to prove the material facts and particulars is a matter of evidence. The pleading party is not required to, and indeed, is not entitled to set out in the pleadings the evidence that he or she intends to adduce at trial to prove the facts that have been pleaded.

 

[5]             In David et al v. Her Majesty the Queen in Right of Canada et al, 2004 BCSC 1306, Mr. Justice Cohen considered the distinction between the material facts and evidence and referred to an earlier decision of Mr. Justice Joyce when he was a master of this court, Firestone v. Smith, [1991] B.C.J. No. 2660 (S.C.)(QL), where Master Joyce said at paragraph 11: 

 

In my view the concern raised by the plaintiff at this stage is that he does not know but would like to know now what precise evidence the defendant may lead in support of his allegations of fact. In my respectful opinion the plaintiff is not entitled to ascertain the evidentiary basis of the defendant’s case by way of this demand for particulars.

 

[6]             Turning to the notice of motion for particulars, the particulars sought at a relatively late juncture following examinations for discovery include a request for further and better particulars with respect to:

 

(a)      The Plaintiff’s Past and Prospective Loss of Enjoyment of Life

 

In my view, that is an inappropriate request for particulars and is a matter that can and should be pursued by way of examination for discovery. In my view, it is not necessary to provide particulars with respect to that head of damage.

 

(b)      The Plaintiff’s Past and Prospective Physical Disability

 

The injuries alleged by the plaintiff have been set out in the statement of claim and the extent of his disability arising therefrom is not a matter that is required as an item of pleadings. It, too, should be pursued by examination for discovery.

 

(c)      The Plaintiff’s Past and Prospective Loss of Earnings

 

Insofar as the past loss of earnings is concerned, this is information that can be identified and quantified and should be provided by the plaintiff to the defendant. It is not, in my view, appropriate that it be provided as particulars, but I am satisfied it should be provided in some fashion to the defendant, and I am going to direct that the plaintiff quantify his claim for past loss of earnings and provide that information to the defendant.

 

Insofar as prospective loss of earnings is concerned, I am not satisfied that that is a matter that can be necessarily particularized, and I leave it to the defendant to pursue that through examinations for discovery.

 

(d)      The Plaintiff’s Past and Prospective Loss of Earning Capacity

 

Like the prospective loss of earnings, I do not consider this to be an appropriate subject matter for particulars, and it is a matter that can be pursued by way of examination for discovery.

 

(e)      The Plaintiff’s Past and Prospective Loss of Opportunity to Earn Income

 

This is a head that is hard to distinguish from past and prospective loss of earning capacity. To the extent there is any difference, in my view it should be treated the same as the request for particulars of past and prospective loss of earning capacity.

 

(f)       The Plaintiff’s Past and Prospective Loss of Housekeeping Capacity

 

This is another matter that in my view does not warrant particularization in the pleadings. It can be pursued through examinations for discovery.

 

(g)      The Trust Award on Behalf of the Plaintiff’s Friends and Family

 

This, too, is not a matter that, in my view, should be dealt with by way of particulars, with this exception:  The individual or individuals for whom a trust award is claimed should be identified in the statement of claim where the trust award is advanced.

 

(h)      The Plaintiff’s Special Damages

 

These are matters that should be identified by the plaintiff for the defendant, but not as particulars of the pleadings.