IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Narayan v. Insurance Corporation of British Columbia, |
| 2015 BCSC 994 |
Date: 20150610
Docket: S112657
Registry:
Vancouver
Between:
Shanal Narayan
Plaintiff
And
Insurance
Corporation of British Columbia
Defendant
Before:
The Honourable Madam Justice Duncan
Reasons for Judgment
The Plaintiff appearing in person on his own behalf: | S. Narayan |
Counsel for the Defendant: | R. Moore |
Place and Dates of Trial: | Vancouver, B.C. December 15-18, 2014 |
Place and Date of Judgment: | Vancouver, B.C. June 10, 2015 |
Introduction
[1]
The plaintiff, Shanal Narayan, was involved in a motor vehicle collision
with a taxi cab driven by Lakhvir Singh Sanghera. The plaintiff was driving his
1991 Chevrolet Sprint, which was insured by the defendant, the Insurance
Corporation of British Columbia (ICBC). The plaintiff reported the accident
to his insurer and in so doing made a number of statements regarding the
circumstances of the collision. ICBC refused to pay the plaintiffs claim for
damage to his vehicle, alleging the plaintiff made a number of wilful false
statements about material issues surrounding the accident.
[2]
The plaintiffs pleadings seek payment for vehicle damage and towing
costs, travel and rental car costs, damages for inconvenience and expense
arising from the loss of his drivers licence, damages for capacity, and
costs. The pleadings were drafted by counsel. The plaintiff was unrepresented
at trial and advanced claims for lost wages and pain and suffering as well as
for the repair of his vehicle in the amount of approximately $1,600.
[3]
Pursuant to its denial of the plaintiffs coverage, ICBC counterclaims
for damages in the amount of $17,627.61, paid to Mr. Sangheras employer
for downtime costs while the vehicle was being repaired, and to him personally
for injuries he sustained in the collision.
The Accident
Evidence of the Plaintiff
[4]
On the evening of November 7, 2009 the plaintiff was socializing at
Lucky Narwals house in East Vancouver with Mr. Narwal and Tejinder (Tony)
Johal. The plaintiff was the designated driver for Mr. Johal. Sometime
early in the morning hours of November 8, the plaintiff and Mr. Johal left
the Narwal residence. The plaintiff drove to the end of the alley and prepared
to make a left turn onto 41st Avenue, near Main Street. He described
in painstaking and somewhat rehearsed detail the process by which he made
several shoulder checks and stopped at the end of the alley before commencing
the left turn.
[5]
The plaintiff saw a taxi coming towards him from the left, however he
felt it was safe to turn. He thought that the two vehicles would yield to one another,
and then one driver would wave the other on. The taxi did not yield, and so the
plaintiff pulled to his left side rather than completing the turn. The taxi
struck the right front side of the plaintiffs vehicle causing its engine to
shut down. The plaintiff said this was a particular feature of his vehicle.
[6]
On cross-examination, the plaintiffs recollection of the timing of the
accident was vague. It took a great deal of probing by counsel for the
defendant for the plaintiff to narrow down the timeframe to between 2:45 and
4:00 a.m. The plaintiff agreed with counsel for the defendant that he was
actually turning onto 59th Avenue near Main, not 41st
Avenue as he had stated on direct examination. The plaintiff denied drinking
alcohol or using drugs while at Mr. Narwals house, though I note that he
giggled and appeared nervous as he answered that question.
[7]
The plaintiff blamed the taxi for failing to yield after seeing his
vehicle come out of the alley. He thought the taxi driver revved his engine and
sped up just before the collision. The plaintiff denied encouraging the taxi
driver to claim the accident as a hit and run. He blamed any misunderstanding
in this regard on the taxi drivers poor English.
Evidence of Mr. Johal
[8]
Mr. Johal said the plaintiff picked him up around 7:00 p.m. on
November 8, 2009 in his two-seater car. They went to Mr. Narwals house
and played video games. Mr. Narwal and Mr. Johal drank rye. The
plaintiff did not consume alcohol.
[9]
Mr. Johal left the Narwal residence with the plaintiff. The
plaintiff drove to the end of the alley and stopped before commencing a left
hand turn. Mr. Johal described the plaintiff making numerous shoulder
checks before proceeding. A taxi came towards them, the plaintiff veered to the
left and the collision occurred. Mr. Johal recalled the police attending
fairly quickly, and a female officer commenting on the smell of alcohol.
[10]
On cross-examination, Mr. Johal said he assumed the plaintiff had
not been drinking because he had offered to be the designated driver. Mr. Johal
was drinking rye, but could not recall how many drinks he consumed. He felt
buzzed but not fully drunk by the end of the evening.
[11]
Mr. Johal said that when riding as a passenger he observes the
driver carefully and was certain the plaintiff had made several shoulder checks
before proceeding out of the alley. He agreed the plaintiff might have
mentioned receiving a ticket when the two rode home in a taxi after the
accident. Mr. Johal thinks he was home by about 3:00 a.m.
Evidence of Mr. Sanghera
[12]
At approximately 3:45 a.m. on November 8, 2009, Mr. Sanghera was
driving his Black Top taxi west on 59th Avenue towards Main Street.
It is a residential area with cars parked on both sides of the street. Mr. Sanghera
had just dropped off his passengers and was driving at about 30 kilometres per
hour. A car came out of an alley and turned left in front of him. He veered to
his left to avoid the accident but the two cars collided.
[13]
Mr. Sanghera got out of his taxi and asked the other driver, the
plaintiff, for his information. The plaintiff refused and asked Mr. Sanghera
to make a hit and run claim. Mr. Sanghera declined to do so and the
plaintiff began arguing with him. Mr. Sanghera called his brother and
asked him to call the police. The plaintiff said dont call the police. Mr. Sanghera
asked again for the plaintiffs information but he refused. Mr. Sanghera
asked his brother to call the police.
[14]
Mr. Sanghera thought there were three people in the car, two men
and one girl who ran from the scene. He stated that several people came out of
the alley after the accident, yelling at him for calling the police and using
profanities in Hindi and Punjabi.
[15]
In Mr. Sangheras view, the plaintiff and his passenger appeared to
be intoxicated. The two smelled pretty bad and the plaintiffs eyes were red.
As a taxi driver Mr. Sanghera regularly drives the night shift and frequently
deals with intoxicated people.
[16]
When the police arrived Mr. Sanghera told them what had happened
and provided his information. He received the plaintiffs information from
police and observed the police issuing him a ticket.
[17]
Mr. Sanghera was off work for a couple of months as a result of
injuries to his neck and back sustained in the accident. He received $13,500
from ICBC as a settlement.
[18]
Mr. Sanghera denied the plaintiffs assertion that he
misinterpreted the conversation about claiming the accident as a hit and run.
He maintained 100% that the plaintiff told him to claim a hit and run. Mr. Sanghera
did not know if the plaintiffs vehicle was a two-seater style. He remained
certain that a third person fled from it.
Police Attendance
The plaintiff
[19]
Police attended the scene of the accident, and one officer, Constable
Glendinning, spoke to Mr. Johal for a few minutes before asking the
plaintiff if he had consumed any alcohol. The plaintiff said no. Constable
Glendinning spoke with Mr. Sanghera and then issued the plaintiff a 24-hour
driving prohibition.
[20]
The plaintiff said the officer gave him two options: accept the
suspension or be charged. He felt wronged and denied drinking but decided to
be nice and accepted the 24-hour driving prohibition because he did not want
to be detained. He never took any steps to challenge the prohibition.
[21]
On cross-examination, the plaintiff recalled two police officers, one
male and one female, attending the accident scene. However, he thought there
could have been a third officer hiding in the police car.
[22]
The plaintiff identified a copy of the 24-hour prohibition issued to him
by Constable Glendinning. He agreed he signed it, but maintained he did so to
avoid being charged. He said the officer did not explain why she was giving it
to him and he did not know he could ask for a breathalyzer test. The plaintiff
said he was scared of being assaulted by the police and felt he was at their
mercy, but he agreed the officer he dealt with was nice.
[23]
The plaintiff acknowledged the officers note on the ticket recorded his
admission that he had been drinking alcohol, but he said that was false and
based on the fact that Mr. Johal smelled of alcohol. The plaintiff said
the note on the ticket about bloodshot eyes was also false because it was dark
and the officer could not see his eyes. In any event, the plaintiff said he
checked his eyes in the mirror before leaving Mr. Narwals house and they
were not bloodshot.
Constable Glendinning
[24]
Constable Glendinning is a member of the Vancouver Police Department.
She was working in uniform early on November 8, 2009. She identified a copy of
a 24-hour prohibition she issued on that date, the same document that the
plaintiff acknowledged receiving.
[25]
Constable Glendinning had very little independent recollection of her
dealings with the plaintiff. She reviewed the Officers Report portion of the notice
of 24-hour prohibition and testified she recorded there that she responded to a
report of an accident. The notes further recorded that the driver, Mr. Narayan,
produced a valid drivers licence and admitted to drinking alcohol. Constable
Glendinning noted he smelled of liquor and had glazed eyes.
[26]
On cross-examination the plaintiff asked Constable Glendinning if it was
proper to issue the ticket without a breathalyzer or a coordination test. Constable
Glendinning responded that based on her notes she followed proper procedure in
issuing the prohibition.
The Plaintiffs Involvement with ICBC
The Plaintiff
[27]
The plaintiffs car was towed and impounded after the collision. He
secured a ride home, went to sleep and checked on his friend the next day. He
also called the ICBC help line. He was advised to make a statement and then
an adjuster would contact him. The plaintiffs recollection is that, after a
day or two, an adjuster called him and told him to submit an online statement.
[28]
The plaintiff tendered in evidence a statement he authored with a date
stamp of Thursday, December 3, 2009 at 6:22:56 p.m. In the statement he
described his exit from an alley near 59th Avenue and Main Street.
He stopped at the end of the alley, saw a taxi coming towards him but felt it
was safe to turn left. He acknowledged he misjudged the taxis distance and the
taxi tried dodging me on the narrow 59th avenue street. But he was
unable to and hit the right side of my front bumper. The two drivers exchanged
information, police were called and a tow truck took the plaintiffs vehicle
away because a computer component shut off the engine so it was not drivable.
[29]
The plaintiff accepted full responsibility for the accident in the
statement and acknowledged his understanding that his insurance rates would go
up. The statement did not include mention of the 24-hour driving prohibition.
[30]
A couple of days after submitting the statement, the plaintiff received
a follow up questionnaire from the ICBC adjuster, Jon Andrews. The plaintiff
emailed the completed questionnaire back to Mr. Andrews, who subsequently
accused the plaintiff of lying because he had not mentioned the 24-hour prohibition.
[31]
The plaintiff produced a copy of the answers he says he prepared in
response to the questions from Mr. Andrews:
Re: Claim # N742312-1
–Did you have any alcohol in the 24 hours preceding the
accident?_
No
–If so, the type of alcohol consumed including the amount
and time of this consumption?
N/A
–Were you asked about alcohol by the police?
Yes
–
–Were any sobriety tests done? If so, what. If there were
test [sic] done, please advise of the results. If there was a blood/alcohol
readings [sic], what were they?
No
–Were you given any tickets and/or were you charged in
relation to this accident? If so, what were the tickets/charges?
No
Thank you for your attention to
this matter.
Sat.
December 5, 2009 3:57:56 PM
[32]
As will be seen later in these reasons, a second version of these
answers was sent to Mr. Andrews. In that second version, the response to the
question were you asked about alcohol by the police? is No.
[33]
The plaintiff explained in his evidence that he did not receive a ticket
or a charge. Rather, he received a notice, and so he wrote no in response to
the question about tickets or charges and felt it was true. At some point the
plaintiff informed the adjuster the wording was very technical and that a 24-hour
driving prohibition is not a ticket. The adjuster did not agree and denied
coverage.
[34]
ICBC demanded payment for nearly $18,000 in damages paid for injury to Mr. Sanghera.
The plaintiff felt wronged by this. He lost his job and has applied for
welfare. He needs his licence back for work but he cannot obtain it without
paying the assessment for damages against him.
[35]
The plaintiff did not take any steps to dispute the 24-hour driving prohibition
because he was not aware he could do so. He thought he contacted ICBC a day or
two after the accident and was quite certain it was not as long as a week
later. He agreed that Mr. Andrews called him and it was probably on
November 24, 2009. Mr. Andrews did not tell him there was an indication
alcohol was involved. The plaintiff denied that Mr. Andrews asked him to
address alcohol consumption in his statement. He suggested that perhaps Mr. Andrews
called his house and talked to someone there about alcohol.
[36]
Counsel for the defendant asked the plaintiff about the date and time
noted on his email statement, Thu, December 3, 2009 6:22:56 PM. The plaintiff
maintained that was when he saved the document, not when he sent it to Mr. Andrews;
however, he acknowledged that Mr. Andrews replied to him by email on
December 4. Attached to Mr. Andrews reply email was one from the
plaintiff dated Thursday, December 03, 2009 6:23 p.m., four seconds after he
claims to have saved, but not sent, the statement.
[37]
Mr. Andrews email to the plaintiff dated December 4, 2009 stated:
Dear Mr. Narayan:
Thank you for your statement.
As we discussed, there is an indication that there may have
been some alcohol consumption prior to this accident. Please address the
following questions.
–Did you have any alcohol in the 24 hours preceding the
accident?_
–If so, the type of alcohol consumed including the amount
and time of this consumption?
–Were you asked about alcohol by the police?
–Were any sobriety tests done? If so, what. If there were
test [sic] done, please advise of the results. If there was a blood/alcohol
readings [sic], what were they?
–Were you given any tickets and/or were you charged in
relation to this accident? If so, what were the tickets/charges?
Thank you for your attention to
this matter.
[38]
Notwithstanding the statement in Mr. Andrews email about a
discussion concerning the involvement of alcohol, the plaintiff initially
maintained his position that he had not discussed alcohol with Mr. Andrews.
Ultimately, he agreed that Mr. Andrews had asked questions about alcohol
consumption, but the plaintiff did not feel it was important to mention the 24-hour
driving prohibition. He did not think it was relevant and did not believe he
had to report the prohibition to ICBC because it is a separate department
from the police.
[39]
The plaintiff testified that he definitely reported his 24-hour driving prohibition
to ICBC by December 10, 2009 then said it was maybe December 15. The plaintiff
insisted he was not in denial about the 24-hour prohibition as late as February
4, 2010 and thought he probably admitted it to Mr. Andrews by early
January, 2010. It was when he learned he would not be insured that he asked to
change his statement about the 24-hour prohibition. This could have been as
late as February, 2010 despite his earlier statement that he had admitted or
reported it as early as December 10, 2009.
[40]
The plaintiff said No to the question about any tickets or charges
because in his view, a notice is not a ticket. Notwithstanding this assertion,
the plaintiff, in evidence, variously referred to the 24-hour prohibition
issued to him as a ticket or a notice.
[41]
Counsel for the defendant asked the plaintiff about his email to Mr. Andrews
on December 5, 2009 at 3:58 p.m. containing his answers to the questions posed
by the adjuster. The answer to the question Were you asked about alcohol by
the police? was No in the email sent to Mr. Andrews, but Yes in the
document the plaintiff tendered in direct examination, reproduced above at paragraph
31. The plaintiff agreed there was a difference between the two versions but
adamantly denied he had changed any answers. The plaintiff suggested that
perhaps he sent an earlier draft, or possibly that Mr. Andrews changed the
answer. The plaintiff said Mr. Andrews did not warn him of the risks entailed
in providing a false statement until after he submitted his statement and responses
to the questions.
[42]
The plaintiff agreed he received a letter from ICBC dated February 24,
2010 holding him 100% responsible for the accident and advising him he had made
a willful false statement. The letter indicated he owed $17,029.48. He received
a subsequent letter dated March 31, 2010 concerning costs for taxi downtime.
The second letter indicated the total owing was $17,627.61. He has never made
any payments and feels he should be covered for the accident because nobody
listened to him. He does not accept he made a wilful false statement.
[43]
While the plaintiff admitted full responsibility for the accident in his
initial written statement to ICBC, he explained he did so because he was scared
and his passenger was yelling at him that the accident was his fault. Counsel
for the defendant pointed out that the statement was dated December 3, 2009,
almost a month after the accident. The plaintiff said that immediately after
the accident he thought he was at fault, but he later changed his mind. He also
said he was just guessing that his car turned itself off automatically after
the accident but denied he came up with this novel explanation to obscure the
fact that his vehicle was towed when he was issued the 24-hour prohibition.
[44]
The plaintiff acknowledged he was served with three 24-hour driving prohibitions
between October 2008 and December 2009, including the one on the morning of
November 9, 2009.
The ICBC Adjuster, Jonathan Andrews
[45]
Mr. Andrews was the adjuster assigned to the plaintiffs file. The
file he receives typically contains the individuals information, insurance
coverage and any notes from the Dial-A-Claim operator who took the call. In
the case of the plaintiffs file, there was a note that he had received a 24-hour
driving prohibition.
[46]
Mr. Andrews called the plaintiff in mid-November, a day or two
after the plaintiff had made the report to Dial-A-Claim. They discussed the
accident. The plaintiff said he made a left turn onto 57th Avenue. Mr. Andrews
told the plaintiff it appeared he was responsible because he was turning left.
The plaintiff said the other driver was approaching at a fast speed, so it was
not his fault. Mr. Andrews told the plaintiff he would investigate and
assess liability. He requested a written statement from the plaintiff and said
it should address the issue of alcohol consumption, as the ICBC file indicated
alcohol had been involved. The plaintiff denied that any alcohol was involved. Mr. Andrews
told Mr. Narayan that providing a false statement could result in a
forfeiture of his insurance. This is not something Mr. Andrews usually
tells a claimant but he explained he felt there was something odd about this
file.
[47]
Mr. Andrews called the plaintiff back about an hour later to advise
he had reviewed the Dial-A-Claim notes and they indicated the plaintiff had
received a 24-hour driving prohibition. Mr. Andrews said the plaintiff
denied consuming alcohol, denied receiving a prohibition, and denied reporting
the claim.
[48]
The plaintiff sent Mr. Andrews a written statement on December 3,
2009, the contents of which are summarized earlier in these reasons at paragraph
31. Mr. Andrews emailed back a list of questions because the statement did
not address alcohol consumption. The list of questions and the two sets of
answers are referenced above at paragraphs 31 and 32. When defence counsel
showed Mr. Andrews the answers to the questions produced by the plaintiff on
direct examination, he was taken aback because it was different from the email
response he had received and retained in his file. He denied changing or
altering the plaintiffs responses prior to printing the email.
[49]
Mr. Andrews sent the plaintiff a letter dated December 18, 2009 to
inform him the claim was still under investigation. The letter also stated there
were indications the plaintiff had not complied with his insurance and he might
be responsible to repay ICBC for payments made on his behalf. Mr. Andrews
said at the time he sent the letter, he was suspicious, but was still investigating
the claim. The plaintiff had repeatedly denied receiving a 24-hour driving prohibition
but the evidence on file indicated one had been issued.
[50]
In conversations with Mr. Andrews after the December 18, 2009
letter, the plaintiff continued to deny that he had received the 24-hour
driving prohibition. Mr. Andrews eventually received a copy of the
prohibition. It was made out to the plaintiff and contained an admission that
he was the driver and had consumed alcohol. The plaintiff continued to deny having
received the prohibition.
[51]
In February 2010, Mr. Andrews drafted a letter to send to the
plaintiff to inform him he had made wilful false statements and had forfeited
his rights to insurance coverage. Mr. Andrews had not yet sent the letter,
when the plaintiff called him and advised that he wanted to change his
statement. The plaintiff said everything in his statement was true except he
had in fact received a 24-hour driving prohibition. Mr. Andrews told the
plaintiff that it was too late, as the determination had already been made. Mr. Andrews
estimated this conversation took place on February 22, 2010. He sent the letter
regarding forfeiture of coverage on February 24, 2010. Mr. Andrews issued
a follow-up letter on March 31, 2010 advising the plaintiff of the revised
total owing in relation to the claim.
[52]
ICBC paid out a total of $17,627.61 as a result of the collision between
the plaintiff and Mr. Sanghera. Of that amount, $13,500 was paid to Mr. Sanghera
and the balance was paid to the taxi company for, among other things, downtime
for the vehicle while it was being repaired.
[53]
On cross-examination the plaintiff asked Mr. Andrews what portions
of his statement were false. Mr. Andrews replied the parts where the
plaintiff said he had consumed no alcohol and did not receive a suspension.
Credibility
[54]
Ultimately, the Courts assessment of the credibility of a witness
testimony turns on whether the evidence is in harmony with the preponderance
of the probabilities which a practical and informed person would readily
recognize as reasonable in that place and in those conditions: Faryna v.
Chorny, [1952] 2 D.L.R. 354 (C.A.) at 357; Bradshaw v. Stenner, 2010
BCSC 1398 at para. 186, affd 2012 BCCA 296.
[55]
Some of the plaintiffs evidence was decidedly odd. He suggested that a
third police officer might have been hiding in the police car while Constable
Glendinning and another officer were investigating the accident; that Mr. Andrews
might have changed the answers the plaintiff provided to him; that Mr. Andrews
might have phoned the plaintiffs house and talked to someone other than the
plaintiff about alcohol; and that he knew his eyes were not bloodshot after the
accident because he checked them in the mirror before leaving Mr. Narwals
house.
[56]
The plaintiffs account of the accident and who should bear liability
was outlandish. Notwithstanding his subordinate position as a driver making a
left turn, the plaintiff maintained the oncoming taxi should have yielded to him
so the two drivers could signal to one another in a mime-like fashion about who
had the right of way. This entirely contradicts his written statement to ICBC,
in which he accepted full responsibility for the accident.
[57]
The plaintiffs denial to the ICBC adjuster of having received the 24-hour
driving prohibition is perplexing, given that the document is entitled Notice
of 24-hour Prohibition and Report to ICBC in capital letters above the
signature line. The caption was there to be seen and impossible to miss.
[58]
Finally, the plaintiffs evidence about matters such as the time of the
accident, and when he finally admitted the driving prohibition to Mr. Andrews,
changed each time he was asked a question on those topics. These difficulties
illustrate that much of the plaintiffs evidence was unreliable because his
memory is either faulty or deliberately selective.
[59]
The plaintiffs friend Mr. Johal was admittedly intoxicated when
the accident occurred, yet he purported to remember the plaintiff conducting
multiple shoulder checks before the impact. I find he did so to shore up his
friends account of the turn that immediately preceded the accident. Mr. Johals
evidence that the plaintiff was not drinking rested on his assumption that
since the plaintiff had volunteered to be the designated driver, he was not
drinking, rather than on any independent observation or recollection of the
events leading up to the accident.
[60]
Mr. Sangheras recollection of the accident was not significantly
challenged on cross-examination. I accept that he was the driver with the right
of way, and that the plaintiff turned unexpectedly in front of him. I also
accept that the plaintiff suggested that Mr. Sanghera should report the
accident as a hit and run and that Mr. Sanghera thought the plaintiff was
intoxicated.
[61]
Mr. Andrews recollection of his dealings with the plaintiff was
not shaken on cross-examination. I accept his evidence that the plaintiff
denied reporting the accident, denied the involvement of alcohol, and denied
receiving the 24-hour driving prohibition until February 2010, notwithstanding
warnings about the consequences of making false statements.
[62]
Constable Glendinning relied almost exclusively on her notes. Counsel
for ICBC sought to have the copy of the 24-hour driving prohibition Constable
Glendinning issued to the plaintiff entered into evidence as a business record
pursuant to s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124,
which states:
Admissibility of business records
42 (1) In this section:
"business"
includes every kind of business, profession, occupation, calling, operation or
activity, whether carried on for profit or otherwise;
"document"
includes any device by means of which information is recorded or stored;
"statement"
includes any representation of fact, whether made in words or otherwise.
(2) In proceedings in which direct oral evidence of a fact
would be admissible, a statement of a fact in a document is admissible as
evidence of the fact if
(a) the document was made or kept
in the usual and ordinary course of business, and
(b) it was in the usual and
ordinary course of the business to record in that document a statement of the
fact at the time it occurred or within a reasonable time after that.
(4) Nothing in this section makes
admissible as evidence a statement made by a person interested at a time when
proceedings were pending or anticipated involving a dispute as to a fact that
the statement might tend to establish.
[63]
Constable Glendinning testified that part of her duties as a police
officer required her to prepare and issue tickets, including driving
prohibitions. Part of the ordinary completion of the document would be filling in
the Officers Report portion of the ticket. It contains her notes of what the
plaintiff said to her and her impressions of his appearance, but it records no
opinion. The constable testified she completed the Officers Report as she
issued the ticket or immediately thereafter. The constable had no interest in
the proceedings nor was there any indication any proceedings were anticipated
at the time she filled out the Officers Report.
[64]
In Gill v. Gill, 2009 BCSC 784, the defendant sought to rely on
the entirety of a police file concerning an accident as a business record for
the purposes of the Evidence Act. The file contained a letter
summarizing witness statements to police, the accident investigation report which
described the parties involved and the location of the damage to the vehicles,
a statement to police by one of the parties, and a variety of other items
including an excerpt from the attending officers notes. In considering the
application of s. 42 of the Evidence Act to the entire file, Bruce
J. said:
[23] While it is likely the
documents contained in the police file were made in the usual and ordinary
course of business, it is apparent that, apart from the accident investigation
form, none of the facts contained the documents were recorded contemporaneously
with the events. The police records are also problematic because they contain
statements of opinion rather than fact. Lastly, the statement alleged to have
been made by the plaintiff is only a summary and does not contain the precise
words spoken by him. For these reasons, I find that only the accident
investigation form is admissible as a business record.
[65]
I am satisfied Constable Glendinnings notes in the Officers Report section
of the Notice of Prohibition were made in the usual and ordinary course of
business, and were recorded contemporaneously with the events in question. I am
not satisfied the entirety of the Officers Report is admissible. Constable
Glendinnings notes about the smell of liquor and glazed eyes are, in my view,
matter of opinion and thus not admissible. The note concerning the plaintiffs
statement about consuming alcohol is admissible because it was a record of what
the plaintiff said, not what the officer thought.
Legal Issues
[66]
The plaintiff, as the insured, bears the initial burden of proof on a
balance of probabilities that he suffered a loss within the coverage alleged.
If he does so, the burden shifts to the defendant insurer to establish on a
balance of probabilities that the plaintiff was in breach of the policy, that
he has forfeited his claim to insurance money and that the defendant has proven
its counterclaim: King v. Insurance Corporation of British Columbia,
2010 BCSC 1740 at paras. 9-10.
1. Loss and damage falling with the coverage
[67]
It was not seriously contested that the plaintiffs vehicle was insured
by the defendant, and that the damages claimed by the plaintiff in his original
pleadings fell within the insurance coverage. The only damages proven, however,
relate to the cost of repairs to the plaintiffs vehicle, a total of about
$1,600. Although the plaintiff made a variety of other claims in his pleadings,
no evidence was called to prove those claims on a balance of probabilities.
[68]
Conversely, the plaintiff added claims for damage in his direct evidence
and submissions, but he did not apply to amend his pleadings. Even if he had
done so, I find that the only thing the plaintiff has proven on a balance of
probabilities is that his vehicle was damaged in the collision with the taxi
and the cost of repair was approximately $1,600. While it appears that the
repairs were paid for by the plaintiffs father, not the plaintiff, nonetheless
I am satisfied the amount has been proven.
[69]
As a result, the onus shifts to the defendant to prove the plaintiff
breached his insurance coverage.
2. Breach of insurance by making wilful false statements
[70]
The defendant maintains the plaintiff made a number of false statements
to Mr. Andrews about material issues concerning the accident, including:
·
denying that he had reported the claim to ICBC;
·
denying that he had consumed alcohol in the 24 hours preceding
the accident;
·
denying that he had been questioned by police about alcohol
consumption; and
·
denying that he had received a 24-hour driving prohibition
following the accident.
[71]
The defendant maintains these statements were wilfully and deliberately
made in respect of the claim made by the plaintiff and the plaintiff has
forfeited his coverage under s. 75 (c) of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231, which states:
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
. . .
(c) the insured makes a wilfully
false statement with respect to the claim.
[72]
In Petersen v. Bannon, [1994] 84 B.C.L.R. (2d) 350 (C.A.), the
insured gave two contradictory statements to ICBC. The Court of Appeal held at 360-361:
A wilful act is one done intentionally, knowingly and
purposely, without justifiable excuse. A wilful act is to be distinguished from
an act done carelessly, thoughtlessly, heedlessly or inadvertently. A wilful
act differs essentially from one done negligently: see Gill v. Insurance Corp.
of British Columbia, [1989] I.L.R. 1-2529 (B.C.S.C.).
The onus is on the insurer to
prove on a balance of probabilities that the statements in question were
wilfully false. Because the allegations are serious, the judge is justified in
scrutinizing the evidence carefully, and cogent evidence will be required to
support an allegation of dishonesty.
[73]
I accept Mr. Andrews evidence that in their initial conversations the
plaintiff denied that he had reported the claim to ICBC. The plaintiffs denial
makes little sense, given that he testified to reporting the claim shortly
after the accident; however, I find he denied reporting the claim.
[74]
Next, I am satisfied that in conversations with Mr. Andrews the
plaintiff denied that he consumed alcohol in the 24 hours preceding the
accident, which stands in stark contrast to his admission to the police officer
and the observations of Mr. Sanghera. I also find the plaintiff denied he
had been questioned by police about alcohol consumption and denied receiving a
24-hour driving prohibition following the accident.
[75]
Collectively, I find the plaintiff made the four false statements
intentionally, knowingly, and purposefully. It is likely that he thought or
hoped that his initial written statement, wherein he admitted liability for the
accident but avoided the subject of alcohol, would be the only statement he
would be required to give to ICBC. He wrote that statement after he had spoken
to Mr. Andrews and he was aware of the latters interest in any details
about the involvement of alcohol. I find that the false statements the
plaintiff made to Mr. Andrews were designed to avoid addressing the
involvement of alcohol, and in an attempt to secure coverage for the damage to
his vehicle under his policy of insurance. The plaintiffs efforts to avoid
confessing about the involvement of alcohol were unsophisticated, but wilful.
[76]
I accept that the involvement of alcohol in an accident is material to
ICBC and may affect the handling of a claim: Rogozinsky v. I.C.B.C.,
2004 BCSC 423 at para. 15. In this particular case, it was obvious that
alcohol was relevant and material to ICBC. Mr. Andrews specifically asked
the plaintiff to address the involvement of alcohol in his statement, and again
by way of the follow-up questions. The plaintiff must have been aware from the
time he was served the Notice of Prohibition that ICBC was concerned about the
involvement of alcohol. The Notice of Prohibition itself indicated a copy would
be provided to ICBC. Once Mr. Andrews became involved in the file, he
specifically asked the plaintiff to address alcohol consumption, first in his
statement and then in his responses to the questionnaire. Mr. Andrews
testified the statements and information he receives about alcohol are relevant
to the way he handles a claim.
3. Has the plaintiff forfeited his insurance coverage?
[77]
I find the defendant has established on a balance of probabilities that
the plaintiff made wilful false statements concerning a matter which was
material to the insurer. As a result, I find that the plaintiff has forfeited
his insurance coverage.
4. Has the defendant proven its counterclaim?
[78]
There was no dispute that ICBC made payments on behalf of Mr. Narayan
to settle third party claims arising from the accident. It did so pursuant to
its obligations under s. 76 of the Insurance (Vehicle) Act. ICBC
contends that it is entitled to recover amounts which it would not otherwise be
liable to pay, pursuant to s. 77(2) of the Insurance (Vehicle) Act,
which reads as follows:
(2) Without limiting section 93.1
and in addition to any other remedy, if an insurer has paid an amount to a
person under section 76 by way of settlement or otherwise, that it would not
otherwise be liable to pay, and has personally delivered or forwarded by
registered mail to the last known address of the insured a demand for
reimbursement of that amount, the insured is liable to reimburse the insurer
that amount, and the insurer may enforce the right by action in court.
[79]
Mr. Andrews testified a total of $17,627.61 was paid on behalf of,
or for the benefit of, the plaintiff to resolve Mr. Sangheras claim as
well as the downtime claim in relation to his taxi when it was being repaired. Mr. Andrews
sent the plaintiff two letters regarding the total amounts owing to ICBC and
demanding payment. Those sums have not been paid.
[80]
ICBC says it was reasonable for it to have settled Mr. Sangheras
claim. It says that given the way the accident occurred there was no reasonable
outcome to the assessment of liability other than that which was made: that the
plaintiff was 100% liable. The plaintiff executed a left hand turn when Mr. Sanghera
was the dominant driver, the driver with the right of way. Similarly, the
payments made by the defendant to Mr. Sanghera and the taxi company were
reasonable. Mr. Sanghera was off work for a couple of months with a sore
back and neck. A settlement of $13,500 for injuries of that nature and duration
is reasonable. The taxi downtime cost was set in accordance with a formula ICBC
routinely uses and the plaintiff did not establish any irregularity in that
regard.
[81]
Accordingly, ICBC is entitled to recover $17,627.61 from the plaintiff.
Summary
[82]
In summary, I find the plaintiff has forfeited his insurance coverage
and the defendant has proven its counterclaim.
[83]
Unless there are matters of which I am not aware, the defendant is
entitled to its costs at Scale B.
Duncan J.
_________________________________
The
Honourable Madam Justice Duncan