IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150901

Docket: M157454

Registry:
New Westminster

Between:

Heidi Ann Klein

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice Ball

Reasons for Judgment on Application

Background For Application

[1]            
The plaintiff, Heidi-Anne Klein, was injured in a motor vehicle accident,
which occurred on March 30, 2012. She sued to recover damages for personal
injuries in a tort action, New Westminster Registry No. 157453 (the “Tort Action”).
The Tort Action has been set for trial in 2016. Liability in the Tort Action is
admitted.

[2]            
At the time of the accident, Ms. Klein was, and remains, an insured
under a policy of insurance with ICBC. ICBC paid Ms. Klein Part 7 benefits
after the date of the accident. She has also been paid monies not included in
Part 7, which are treated by ICBC as an advance on damages in the Tort Action.

[3]            
The payment of those benefits has become the source of conflict between
Ms. Klein and ICBC. In response to that conflict, Ms. Klein commenced this separate
action against ICBC on December 12, 2013, New Westminster Registry No. 157454
(the Insurance Action”), in which she claims a declaration that she is entitled
to further benefits under Part 7 of the Insurance (Vehicle) Regulation,
B.C. Reg. 447/83, under the Insurance (Vehicle) Act, R.S.B.C. 1996, c.
231, and general damages for breach of a contract of insurance. Ms.
Klein now seeks reimbursement of expenses she claims are Part 7 benefits and also
seeks damages including aggravated or punitive damages against ICBC for
allegedly dealing with her claim in bad faith. Ms. Klein brought this summary
proceeding in Chambers seeking those remedies.

[4]            
Ms. Klein has some medical difficulties and was unsure if she wished to
proceed due to what she described as a cognitive and physical problem with a
drug interaction flare-up in the week prior to the Chambers hearing. A letter
dated March 23, 2015, from Ms. Klein’s psychologist stated, “In my opinion she
is not in the position to have any court proceedings for at least six months
from now.” Notwithstanding that advice, Ms. Klein decided to continue with this
application.

[5]            
Ms. Klein initially had the assistance of legal counsel, Bronson Jones
& Company LLP, to commence the Insurance Action. On July 28, 2014, Ms.
Klein filed a notice of intention to act in person. While Ms. Klein normally
would have been categorized as a self-represented party, she has had the
assistance of her corporate counsel, Mr. R.W. Ross, who was present
throughout the proceedings in Chambers and gave her advice on at least one
brief adjournment of proceedings.

[6]            
In Chambers, there were three applications before the Court:

1.       An
application by Ms. Klein for declarations of the entitlement of Ms. Klein
to reinstatement of Part 7 benefits and reimbursement for expenses paid by Ms.
Klein and judgment for the amount of those expenses. Ms. Klein also sought a
series of mandatory injunctions requiring restoration and payment for a variety
of services including physiotherapy and housekeeping services. Ms. Klein also
sought an order that ICBC forthwith provide to her toll-free telephone and
facsimile numbers for ICBC and for an order that ICBC be directed to move the
administration of her file from Abbotsford, B.C. to the ICBC officer in Surrey,
B.C. This application was estimated to require 30 minutes of court time;

2.       A short
leave application by ICBC to allow it to bring the application described in item
3 below;

3.       An application
by ICBC to bifurcate the actions so that the Tort Action be heard before the Insurance
Action.

Short Leave Application

[7]            
Without embarking on a detailed recitation of facts, counsel for ICBC believed
a resolution of this case had been negotiated with Ms. Klein. In fact, due to a
misunderstanding, the parties were not in agreement. That lack of agreement did
not become apparent until there was insufficient time for counsel for ICBC to
give to Ms. Klein the notice of its bifurcation application required by
the Supreme Court Civil Rules, B.C. Reg. 168/2009. There was no basis in
the evidence heard that would cause the Court to refuse short leave and good
reason to grant that application, including the saving of further court time
and avoiding potentially conflicting court decisions. Therefore, an order was
made for shortened leave to permit the bifurcation application to be heard on
May 29, 2015.

Bifurcation Application

[8]            
Counsel for ICBC explained the bifurcation application, which has been
very recently served on Ms. Klein. To ensure that Ms. Klein understood the
application, court was stood down to allow Ms. Klein to consult in private with
Mr. Ross. When court was reconvened following this consultation, Mr. Ross
advised the Court that Ms. Klein did not oppose the granting of the bifurcation
order and agreed to a stay of the “good faith” portion of the Insurance Action
pending the decision in the Tort Action. As a result, the matters stayed
included the items contained in numbered paragraphs 8- 21 of Ms. Klein’s notice
of application.

The Summary Judgment Application

[9]            
The matters, which continued before the Court, were contained in the
notice of application of Ms. Klein filed May 4, 2015 and included the following:

·      
A court order for the medical and rehabilitation benefits under
Part 7 of the Insurance Motor (Vehicle) Regulation and for judgment
against the defendant for the cumulative total amount of those benefits in the
amount of $6,047.53 payable forthwith, which ICBC has wrongfully and unlawfully
failed to pay;

·      
A court order to restore and reimburse the plaintiff the
preapproved by ICBC and reimbursed by ICBC physician recommended physiotherapy
treatments, including “User Fees”;

·      
A court order to restore physician recommended housekeeping
services twice per month with direct billing by the housekeeping service provider
to ICBC as was approved by ICBC and paid by ICBC for well over one year. ICBC
unilaterally cancelled these services directly with the service provider
without prior notice to the plaintiff and against doctors’ prescribed orders; and

·      
A court order to restore payments for psychological services
preapproved by ICBC and reimbursed the ICBC including “User Fees”, which ICBC
unilaterally cancelled directly with the service provider prior to notice to
the plaintiff and against doctors’ prescribed orders.

[10]        
Ms. Klein agreed, during submissions in Chambers, that the court had no
legal jurisdiction to determine in which office ICBC could conduct business,
therefore this claim was not allowed.

[11]        
Before going further into the analysis of this claim, several principles
need to be recited. First, the obligation of ICBC to pay the plaintiff money
for injury or loss arises from a contract, being a policy of insurance. This
principle is clearly spelled out in section 79 of the Insurance (Vehicle)
Regulation as follows:

79(1) Subject to subsection (2) and
sections 80 to 88, 90, 92, 100, 101 and 104, the corporation shall pay benefits
to an insured in respect of death or injury caused by an accident that arises
out of the use or operation of a vehicle and that occurs in Canada or the
United States of America[.]

[12]        
That policy provides that some benefits are mandatory payments, which
must be made by ICBC, and some services are permissive or discretionary. In the
latter case, ICBC must exercise its discretion in favour of making the payment
for a particular service.

[13]        
Section 88, subsections 1 and 2 demonstrate the mandatory requirement
for certain benefits and the discretionary aspect of other benefits as follows:

88 (1) Where an insured is injured in an accident for which
benefits are provided under this Part, the corporation shall, subject to
subsections (5) and (6), pay as benefits all reasonable expenses incurred by
the insured as a result of the injury for necessary medical, surgical, dental,
hospital, ambulance or professional nursing services, or for necessary physical
therapy, chiropractic treatment, occupational therapy or speech therapy or for
prosthesis or orthosis.

. . .

(2) Where, in the opinion of the corporation’s medical
adviser, provision of any one or more of the following is likely to promote the
rehabilitation of an insured who is injured in an accident for which benefits
are provided under this Part, the corporation may provide any one or
more of the following:

(a) funds to the insured once
during the lifetime of the insured for the acquisition by the insured of one
motor vehicle equipped as necessary and appropriate to its use or operation by
the insured, the choice of make or model of vehicle to be in the sole
discretion of the corporation;

(b) funds to the insured once
during the lifetime of the insured for alterations to the insured’s residence
that are necessary to make the residence accessible to and usable by the
insured, the style and cost of the alterations to be in the sole discretion of
the corporation and the alterations to be limited to necessary ramps, a
necessary lift, necessary bathroom alterations and, where the insured is a
homemaker or a person who lives alone, necessary kitchen alterations

(c) reimbursement to the insured
for the costs of attendant care, other than care provided by a member of the
insured’s family, where the insured has returned to and is residing in the
community but is not capable of performing some or all of the tasks necessary
to sustain an independent lifestyle, the amount of the reimbursement to be
limited to the lesser of

(i) the monthly cost of a group
residence, including a long term care facility, that would be appropriate to
the care needs of the insured as determined by the rehabilitation team, and

(ii) the monthly cost of attendant
care required by the insured as a result of injuries from the motor vehicle
accident, the level and type of which will be determined by the rehabilitation
team using the same standards and criteria applied under the Long Term Care
Program of the Continuing Care Division of the ministry of the minister
responsible for the administration of the Continuing Care Act;

(d) reimbursement to the insured
for costs incurred from time to time by the insured for the purchase and
reasonable repair, adjustment or replacement of one or more of the following
items:

(i) a wheelchair;

(ii) a medically prescribed bed for
other than hospital use;

(iii) bowel and bladder equipment;

(iv) aids for communication,
dressing, eating, grooming and hygiene;

(v) transfer equipment;

(vi) a ventilator;

(e) funds to the insured for
vocational or other training that

(i) is consistent with the
insured’s pre-injury occupation and his post-injury skills and abilities, and

(ii) may return the insured
as nearly as practicable to his pre-injury status or improve the post-injury earning
capacity and level of independence of the insured;

(f) funds for any other costs the
corporation in its sole discretion agrees to pay.

(3)
Before incurring an expense or obligation under subsection (2) for which the
insured intends to request payment by the corporation, the insured shall obtain
written approval from the corporation and the corporation may, before
giving its approval, require the insured to submit such information as it
considers necessary to assist it in making a decision.

[Emphasis
added.]

[14]        
My emphasis on the words “shall” and “may” is used to demonstrate the
difference between the requirements for mandatory payment of benefits
designated by the word “shall” or discretionary payment of benefits designated
by the word “may”. Barring an unusual factual matrix not present in this case,
the court has no jurisdiction to compel ICBC to exercise its discretion to make
discretionary payments in favour of an insured.

[15]        
Charges for medical services are paid for by the Medical Services Plan
in amounts prescribed for medical fees under that plan. It has become customary
for medical practitioners to charge additional fees above those allowed by the
Medical Services Plan. These additional fees, known as “user fees”, are not the
responsibility of ICBC under the policy of insurance and are charged directly
to the user of the service. Where ICBC pays user fees on a discretionary basis,
those paid user fees represent an advance payment on a tort claim. Otherwise,
user fees are often claimed by plaintiffs as special damages in tort claims.

The Current Action

[16]        
Today, on this summary judgment application, Ms. Klein bears the onus to
prove that there are monies owing by ICBC because mandatory benefits have not
been paid to date.

[17]         
Ms. Klein acknowledged that she has not kept an accurate record
of all payments by ICBC and has not calculated a demonstrable amount said to be
owing in the course of preparing materials in support of this application. In
her affidavit sworn on May 21, 2015, the following paragraph appears:

30.       May 12, 2015, I was
surprised that I received a cheque from ICBC in the amount of $209.31 for
parking, over the counter meds, prescription, rocker board, and letter. From
which of the long outstanding Part 7 No Fault Benefits it if from is not known
to me nor it is indicated.

[18]        
The cheque, referred to in the foregoing paragraph, dated April 24,
2015, is designated with claim number P4590573, for the Part 7 benefits.

[19]        
Near the end of submissions in this case, it was also acknowledged that
some of the amounts claimed included user fees that had not been sorted from
the balance of the claim. Ms. Klein asserted that ICBC had stated that user
fees were to be paid for her claim in its entirety but no such written
statement was presented in the evidence before the Court.

[20]        
Angela Brown, Senior Injury Adjuster for ICBC, filed an affidavit in
this case. She has had conduct of the file for Ms. Klein since October 21, 2013
and has extensively reviewed the file for coverage, liability, accident details,
injuries, disability from work, and to assess if further documents were
necessary to complete the assessment by her of both the tort claim and the Part
7 claims. The review conducted by Ms. Brown is set out in some detail in paras.
6-18 of her affidavit. In summary, Ms. Brown asserts that all invoices payable
for Part 7 homemaker benefits, medical and rehabilitation benefits,
physiotherapy benefits, as well as discretionary psychological counselling
benefits have been paid by ICBC. Ms. Brown also noted that at least one of the
expenses claimed was in fact a voided bankcard transaction.

[21]        
As a result, there are direct conflicts on the evidence in this file. The
Court has no basis to determine any amount owing to Ms. Klein because of the
issues noted in paras. 18-20 hereof, including the failure to sort out user
fees. If there is an amount owing, Ms. Klein cannot and did not tell the Court
with exactitude what that amount is. Ms. Brown asserted that no amount is owing
by ICBC to Ms. Klein for mandatory Part 7 benefits.

Rules of Court

[22]        
The Supreme Court Civil Rules dealing with summary judgment
applications are clear that where there is a genuine issue to be tried, the court
may not grant judgment: Drummond v. Drummond Estate, 2012 BCSC 496.

[23]        
In the case before this Court, the genuine issue to be tried involves an
oath against an oath. Ms. Klein says under oath she is owed money by ICBC,
although the amount is uncertain. Ms. Brown says under oath that there is no
money owing by ICBC to Ms. Klein. Ms. Brown further states that “at no
time since the Accident, has the Plaintiff’s Part 7 benefits been terminated or
suspended”.

[24]        
The test for the availability of summary judgment is provided for in International
Taoist Church of Canada v. Ching Chung Taoist Association of Hong Kong Ltd.,
2011 BCCA 149, and Nanji v. Bouch (1988), 32 B.C.L.R. (2d) 6.

[25]        
The issue that must be decided by the court in a summary application
cannot be based on weighing evidence in favour of a party. There must be no
evidence contrary to the position advanced by the applicant in order for the court
to grant a summary judgment. As Mr. Justice Wilson provided in Atha v.
Thompson, 2008 BCSC 1075 at para. 33, “[i]t is not the function of
the court to weigh evidence, or choose between conflicting versions of an
event, on a summary judgment application.”

Conclusion

[26]        
Ms. Klein provided the Court with a number of cases that focused on the
issue of whether a particular treatment recommended for an injured insured was
to be paid for by ICBC. In those cases, ICBC disputed the appropriateness of
the proposed treatment. In the case at bar, no particular treatment is disputed.
The genuine issue that has arisen is “have all of the services claimed been
paid for by ICBC?” That issue is disputed and is not resolvable in a summary
proceeding.

[27]        
The orders sought in numbered paragraphs 1, 3, 4, and 5 of Ms. Klein’s
notice of application referred to in paragraph 9 above are dismissed.

Costs

[28]        
Costs of this application will be reserved for the court hearing the Insurance
Action.

“Ball J.”