IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110729

Docket: 10 2213

Registry:
Victoria

Between:

Hermann Biedermann

Plaintiff

And:

Insurance
Corporation of British Columbia

Defendant

Before:
Master Bouck

Reasons for Judgment

The Application

[1]            
The plaintiff seeks an order that:

1. That the Defendant provide
further and better particulars of the Defendant’s allegation that the Plaintiff
“made a willfully [sic] false statement or representation with respect to a
claim” as set forth at Part 3, paragraph 1(a) of the Defendant’s Response
to Civil Claim.

[2]            
The plaintiff says that the particulars are required in order to allow
the plaintiff to properly address an issue raised in the pleadings.

[3]            
The defendant says that the relief sought by the plaintiff is not
available at law.

The Facts

[4]            
The facts with respect to the application are not in issue.

[5]            
The plaintiff is seeking indemnity from the Insurance Corporation of
British Columbia (“ICBC”) in connection with three motor vehicle accidents. The
accidents occurred on July 19, 2008, February 22, 2009 and July 6, 2009.

[6]            
The July 19^th accident involved a 1979 Mercedes Benz which
the plaintiff had sold to a third party by way of a bill of sale. When the
accident occurred, this third party was driving the vehicle from the point of
purchase to another location using the plaintiff’s registered licence plates.

[7]            
The second and third accidents involved a 2008 Volkswagen Golf owned by
Mr. Biedermann but operated by his daughter with his consent. The two
accidents occurred in Alberta.

[8]            
ICBC has made certain payments with respect to the July 19^th and
February 22^nd accidents and seeks repayment of those amounts
from the plaintiff. It would appear that any payout with respect to the July 6,
2009 accident has yet to be determined.

[9]            
In May 2010, Mr. Morley sought clarification of ICBC’s position with
respect to insurance coverage for the July 19^th accident. In his
letter to the Kelowna-based insurance adjuster, Mr. Morley states as follows:

We are a bit puzzled by the
assertion of the claim against Mr. Biedermann. Firstly, as we have seen
from the witness statements that we have at hand, it appears that the fault for
the accident was that of the motorcycle driver. Of course, that would not be cause
for a claim against Mr. Biedermann’s insurance coverage. Secondly, we
don’t see the basis of why there would be a denial of coverage on the policy. If
liability against Mr. Biedermann is on the basis that he was the owner of
the vehicle at the time of the accident, then there should be coverage. If the
allegation is that Mr. Biedermann was not the owner of the vehicle at the
time of the accident, then there is no basis for Mr. Biedermann to be
liable for the accident.

[10]        
The same day, Mr. Morley wrote a second letter to the Surrey-based
adjuster handling the 2009 accident claims. In that letter, Mr. Morley
requested particulars:

… on which you say Mr.
Biedermann failed to update his Territory and Rating, the basis which you say
Mr. Biedermann gave a false statement and the basis on which you say Mr.
Biedermann misrepresented the principal operator.

[11]        
In response, the Surrey-based adjuster wrote:

We have received your letter dated May 3, 2010. As stated in
the letter dated February 25, 2010 to Mr. Biedermann, that he was in breach of
his insurance coverage for False Statement as per Section 75(c) of the
Insurance (Vehicle) Act and failure to declare the correct principal operator,
therefore Misrepresentation principal operator as per Section 75(a)(ii) of the
Insurance (Vehicle) Act.

Please refer to these acts.

[12]        
The evidence does not include any response from the Kelowna adjuster.

[13]        
In the meantime, the Notice of Civil Claim was filed and served. In its Response
to the Civil Claim, the defendant pleads, among other things, that:

Division
2 – Defendant’s
Version of Facts

Accident #1 – July 19. 2008

1. The defendant says and the fact is that
on or about July 16, 2008 the plaintiff had sold the subject vehicle and
accepted payment, leaving his plates on the vehicle.

2. Further, on or about July 16, 2008 the
plaintiff signed a BC Transfer/Tax Form with respect to the purchase of the
subject vehicle, which form stated that the date of sale is July 16, 2008.

3. Notwithstanding that the sale was
completed on July 16, 2008, the plaintiff signed a Bill of Sale post-dated to
July 17, 2008.

4. On or about July 17, 2008, while
transporting the vehicle back to Alberta, the new owner and driver of the
vehicle was involved in a collision with a motorcycle which resulted in the death
of the operator and passenger of the said motorcycle.

5. The defendant says and the fact is that
the plaintiff’s insurance coverage ended when the vehicle was sold.

6. The subject vehicle had been sold prior
to the subject motor vehicle accident.

…

Part 3: LEGAL BASIS

1. The defendant says that the defendant has
no obligations under the insurance contract(s) or Polic(y)(ies) because the
plaintiff is in breach of Policy conditions or coverage by refusing or
neglecting to comply with the terms and conditions of coverage, as per the
Policy, any certificate of insurance, the Insurance (Vehicle) Act, R.S.B.C
1996, c. 231, or the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 in
that he:

a. made a willfully false statement or
representation with respect to a claim contrary to section 75(c) of the Insurance
(Vehicle) Act;

[14]        
The Response to Civil Claim addresses the two accidents in 2009 by
pleading that Mr. Biederman misrepresented both the true principal
operator of the vehicle and territory for operation of the vehicle. It is
further alleged that Mr. Biederman’s daughter is the beneficial owner of the Volkswagen
Golf.

[15]        
Mr. Morley again sought clarification from defence counsel with respect
to the plea that the plaintiff had made a wilfully false statement. No further
particulars were forthcoming.

Discussion

[16]        
The plaintiff relies on Rule 3-7(22) of the Supreme Court Civil Rules
(“SCCR”) which provides that the court may order a party to serve
further and better particulars of a matter stated in a pleading (my
emphasis).

[17]        
In its response, the defendant helpfully outlines the legal principles
relevant to the application and interpretation of this Rule.

[18]        
One of the stated purposes for ordering particulars is to ensure that
the “real issues between the parties” are brought “fairly forward without
surprise”: Cansulex Ltd. v. Perry, 1982 CarswellBC (C.A.) at para.
16. The six objectives of an order for particulars are said to be:

·      
to inform the other side of the nature of the case they have to
meet as distinguished from the mode in which the case is to be proved;

·      
to prevent the other side from being taken by surprise at trial;

·      
to enable the other side to know what evidence they ought to be
prepared with and to prepare for trial;

·      
to limit the generality of the pleadings;

·      
to limit and decide the issues to be tried, and as to which
discovery is required; and

·      
to tie the hands of the party so that he cannot without leave go
into any matters not included.

Cansulex Ltd. v. Perry at
para. 15

[19]        
These factors are consistent with the present objectives of the SCCR
in having a matter determined in a proportionate, just, speedy and inexpensive
manner: Rule 1-3.

[20]        
The defendant submits that the plaintiff should not be permitted to seek
particulars of the legal or evidentiary basis on which the defendant resists this
order: Hoy v. Medtronic Inc., [2004] B.C.J. No. 676 (S.C.). An order for
particulars with respect to the “wilfully false statement” would require the
defendant to reveal that evidence.

[21]        
After reviewing the pleadings and relevant authorities, I have concluded
that the Response to Civil Claim does not provide sufficient particularity to
meet the objectives of both the SCCR and those outlined by the court in Cansulex.

[22]        
Neither the Response to Civil Claim nor the response to this application
identify the nature of the “wilfully false statement”. The Response separately
pleads (and the defendant discloses in its affidavit material) that the
plaintiff may have failed to update both the territory and rating for the Volkswagen
Golf and also misrepresented the principal operator. Those details provide some
information to the plaintiff as to the basis for denying the sought after
insurance coverage. However, it is not at all clear from the Response whether
these documents represent the “wilfully false statement” or whether the defence
is relying on some other written or oral statement or representation given by
the plaintiff.

[23]        
Nor does the Response address in any particularity the basis on which coverage
is denied for the July 2008 accident. The Response simply says that Mr. Biedermann
was no longer the legal owner of the vehicle involved in the accident.

[24]        
What is being sought by the plaintiff is not so much evidence which might
support a finding that Mr. Biedermann made a statement or statements which were 
“wilfully false”, but rather identification of what that “statement or
representation” might be. Is it an insurance application form; a post-accident
statement or representation; or some other form of communication? Without these
particulars, the plaintiff (and the court) is left to guess whether such a
statement or representation even exists.

[25]        
Presumably, the statement or representation falls within the purview of
s. 75 of the Insurance (Vehicle) Act, which provides:

Forfeiture

75 All claims by or in respect of the applicant or insured
are invalid and the right of an applicant, an insured, or a person claiming
through or on behalf of an applicant or insured or of a person claiming as a
dependant of the applicant or the insured, to insurance money under the plan or
an optional insurance contract, is forfeited if

(a) the applicant for coverage
under the plan or the optional insurance contract

(i) to the prejudice of the
insurer, falsely describes the vehicle in respect of which the application is
made, or

(ii) knowingly misrepresents or
fails to disclose in the application a fact required to be stated in it,

(b) the insured violates a term or
condition of or commits a fraud in relation to the plan or the optional
insurance contract, or

(c) the insured makes a wilfully false statement with
respect to the claim.

[26]        
The defence has separately pled s. 75 (a) (ii) with respect to the
2009 accidents. However, s. 75 (c) is so broadly worded that the
plaintiff (and the court) is unable to identify the nature of the impugned
statement of misrepresentation with respect to any of the accidents.

[27]        
Accordingly, the order sought by the plaintiff is granted. Costs of the application
will be to the plaintiff in the cause.

                       “C.
P. Bouck”                      

Master
C. P. Bouck