Executive Summary: Key Legal and Evidentiary Issues

• The defendant insurance broker is alleged to have been negligent in failing to adequately advise the plaintiff about excess underinsured motorist protection (UMP) coverage when renewing his ICBC policy in 2018.
   
• Central to the discovery dispute is whether the plaintiff's pre-accident cognitive functioning — specifically memory impairment arising from a 2016 workplace injury causing a mild traumatic brain injury — is subject to disclosure.
   
• Discoverability of the plaintiff's claim is disputed, with the plaintiff arguing the claim only became discoverable upon issuance of the MVA Trial Reasons on December 16, 2024, when damages were quantified at approximately $2.4 million, exceeding the $1 million UMP policy limit.
   
• Reliability of witness evidence is a distinct and discoverable issue from credibility alone, and documents going to the plaintiff's cognitive abilities at the time of the 2018 broker meeting are therefore relevant.
   
• Broad document demands — covering clinical records, expert reports, neuropsychological assessments, and functional capacity evaluations relating to the plaintiff's brain injury from 2016 to the present — were challenged as impermissible fishing expeditions but upheld as sufficiently particularized.
   
• Costs for both applications were ordered in the cause.

Facts of the case

Jeremy Ranseth, the plaintiff, commenced an action against Kirby Insurance Agencies Ltd. (the "Defendant"), the insurance brokerage through which he had obtained his ICBC vehicle insurance. His claim is that the broker failed in its duties and/or was negligent in not adequately advising him about excess underinsured motorist protection ("UMP") coverage. On December 11, 2018, shortly after renewing his ICBC policy with only the required minimum coverage, Ranseth was involved in a hit-and-run motor vehicle accident in which he suffered significant injuries. He advanced a personal injury claim that proceeded to trial (the "MVA Trial"). In the MVA Trial reasons rendered on December 16, 2024 (Ranseth v. Doe, 2024 BCSC 2281), he was awarded damages of approximately $2.4 million — an amount that far exceeded his $1 million UMP coverage limit. Ranseth argues that had he been properly advised about excess UMP, he would have purchased sufficient additional coverage to address what he calculates as an approximate $1.7 million shortfall between the judgment amount and what was payable under his policy limits, after all deductions. The Defendant denies all liability, specifically denying that the individual broker failed to canvass excess UMP during her meeting with the plaintiff, and raises a limitation defence under the Limitation Act, SBC 2012, c. 13.

Separately, Ranseth had suffered a prior workplace injury ("WPI") on November 16, 2016, when a car fell on him while he was working as a mechanic, causing injuries to his head. He was hospitalized overnight, later underwent surgery on November 24, 2016, and was diagnosed with, among other things, a mild traumatic brain injury ("MTBI"), somatic symptom disorder, post-traumatic stress disorder (mild), generalized anxiety disorder (mild to moderate), and difficulties with cognitive function and memory. The Defendant conducted an examination for discovery of the plaintiff on February 4, 2026, during which it sought to question Ranseth about how his MTBI may have affected his ability to recall the 2018 broker meeting. The plaintiff objected to those questions and related document demands.

Contractual and statutory provisions at issue

The Defendant's limitation defence is pleaded at paragraph 7 of its response to civil claim, which states that the plaintiff's claim is barred by the affliction of time, and relies on the Limitation Act, SBC 2012, c. 13 and amendments thereto. The operative discovery standard under Rule 7-1(1) requires disclosure of documents that could assist in proving or disproving a material fact — the former Peruvian Guano test, as affirmed in Biehl v. Strang, 2010 BCSC 1391, and now enshrined in the Rules. Under Rule 7-2(16), a person being examined must produce for inspection all documents in their possession or control relating to the matters in question, with scope set out in Rule 7-2(18), encompassing any question within the party's knowledge or means of knowledge relating to a matter in question and not otherwise privileged.

Reasoning and analysis

The court addressed two interrelated issues: first, whether the plaintiff's medical evidence relating to his cognitive functioning was discoverable; and second, whether the claim was discoverable for the purposes of the limitation defence, and whether the document demands were properly framed.

On the reliability issue, the court drew on Biehl v. Strang to distinguish between credibility — a collateral matter not subject to discovery — and reliability, which is a separate and distinct issue that goes to the proof of a material fact. Here, the material fact in dispute is what was said or not said at the broker meeting. Given that the meeting took place approximately eight years before the hearing and that oral testimony would likely be central to the liability determination, the court found that documents going to the plaintiff's cognitive abilities and memory functioning at and around the time of the meeting were relevant. The court declined to hold that an expert opinion was required before such documents could be produced, noting that while a trier of fact may ultimately require expert evidence, it was not appropriate at the discovery stage to foreclose lines of inquiry that may prove or disprove a material fact.

On discoverability, the court found a live dispute as to when the plaintiff knew or ought to have known that his claim exceeded his policy limits such that a plausible inference of liability on the part of the Defendant could be drawn. The plaintiff argued — relying on Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, and decisions such as Wawanesa Mutual Insurance Company v. Insurance Corporation of British Columbia, 2021 BCSC 595 — that discoverability could not have occurred until the Trial Reasons were issued on December 16, 2024. The Defendant pointed to Lau v. Insurance Corporation of British Columbia, 2026 BCSC 574, where a similar limitation defence in a solicitor's negligence case was upheld because the likelihood of limits being exceeded was well known in advance of the judgment date. The court declined to predetermine the discoverability issue, finding that the pro forma nature of the limitation pleading did not extinguish the live question of when the plaintiff had sufficient knowledge to draw a plausible inference of liability, and that the defendant should not be restricted in its discovery to the plaintiff's own theory of the case.

On the propriety of the document demands, the court acknowledged the caution required against permitting overly broad requests amounting to fishing expeditions, as articulated in Lit v. Hare, 2012 BCSC 1918, and considered in Montaigne Group Ltd. v. St. Alcuin College for the Liberal Arts Society, 2026 BCSC 588. It found, however, that the four categories of documents sought — clinical records and chart notes relating to the plaintiff's traumatic brain injury arising from the 2016 workplace injury, all medical-legal and neuropsychological reports, expert reports from the MVA Trial addressing cognitive functioning and memory, and clinical records from treating physicians from 2016 to the present — were sufficiently particularized given the limitations on information available to the Defendant due to the plaintiff's own refusals at discovery.

Ruling and overall outcome

The applications by the Defendant were granted. Associate Judge Robertson ordered production of the documents as sought in paragraph 1 of the document demand application, and further ordered the plaintiff to attend a further examination for discovery to answer the questions set out in Schedule A, including the orders sought in paragraphs 1, 2, and 3 of the examination for discovery notice of application. The successful party was the Defendant, Kirby Insurance Agencies Ltd. No specific monetary amount was ordered or awarded in connection with this interlocutory decision; costs for both applications were ordered in the cause.