IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20150903

Docket: S–106727

Registry:
Vancouver

Between:

Mohammed
Yusuf Venkataya

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

Introduction

[1]           
This is an action for recovery of the value of the plaintiff’s 2006
Nissan Armada SUV. The vehicle was a total loss as a result of a single-vehicle
accident that occurred at approximately 2:30 a.m. on October 12, 2008 on Scott
Road (120 Street) at 88 Avenue on the Surrey-Delta border (the “Accident”).

[2]           
At the time of the Accident, the plaintiff had an optional collision/own
damage policy with the defendant insurance corporation, which included
replacement-cost coverage (the “Policy”). It is accepted that the plaintiff’s
loss is within the coverage afforded by the Policy.

[3]           
The issue before the Court is whether it was open to the defendant to
deny coverage for the plaintiff’s loss on the basis that:

i)        the plaintiff breached
the conditions of his insurance because his consumption of a traditional Fijian
root drink, called Kava, rendered him incapable of proper control of his
vehicle; or

ii)        the plaintiff provided a
willfully false statement to the defendant about his claim, in stating that he
had not taken any drugs or alcohol in the 12 hours preceding the Accident.

[4]           
The agreed-upon value of the plaintiff’s vehicle is $53,017.89.

Background

[5]           
The central facts which underlie this action are straightforward. The
plaintiff is now a 51-year-old gentleman who immigrated to Canada in 1996. He
is married and has five children. He is the owner of a small trucking company
that employs five other drivers. He too drives for a living, and he typically
works a 12-hour day.

[6]           
Mr. Venkataya is a large, athletic gentleman who is six feet three
inches tall and weighs approximately 220 pounds. He was formerly a
semi-professional soccer player who also formerly played on Fiji’s national
team. He is a devout Muslim who does not smoke, drink or use any drugs. Mr. Venkataya
was formerly involved in the local Fijian community, but he now lacks the time
for such involvement.

[7]           
On the evening of October 11, 2008, at about 9:30-10:00 p.m., Mr. Venkataya
attended at the home of his friend, Mr. Faruq, who lives near the
intersection of 134 Street and 67 Avenue in Surrey. Mr. Faruq, who had
prepared some seafood, had also invited four other friends and relatives over. Over
the course of the evening the group talked, ate, watched television and drank Kava.

[8]           
Kava is Fiji’s national drink. The Kava plant is grown in many places
throughout the South Pacific. The drink is often consumed at ceremonies,
celebrations, or among friends and relatives. It is a product that is made or
extracted from the root of a plant. It is usually then placed into little bags,
as tea would be, and then strained and consumed as tea would. Herbal Kava is
also, apparently, sold in health-food stores.

[9]           
The use and manufacture of Kava is not regulated in Canada. Mr. Venkataya
said that he was able to bring up to five kilograms of Kava, at the time, into
Canada from Fiji. Still further, he said that Kava was not regulated as a drug
in Fiji and that he did not, in 2008, consider Kava to be a drug.

[10]       
Three of the five gentlemen who were present that evening, Messrs. Askik
and Immud Hussain, who are brothers, and Mr. Vishwa Nandan, gave evidence
at trial. One person who was present that evening has since passed away. Mr. Faruq
was out of the country when the trial took place.

[11]       
The evidence of Mr. Venkataya, and of the other witnesses who were
present at Mr. Faruq’s home, was consistent. Mr. Venkataya was not
feeling well that evening. He was likely the last to arrive, though he
remembered one person arriving after he did. He sat on a couch while the others
sat on the floor. He said he had a few bowls of fish soup, one bowl of Kava and
a cup of tea. This evidence was supported by each of Messrs. Askik and Immud
Hussain. Mr. Nandan said he thought that Mr. Venkataya had had either
one or two bowls of Kava.

[12]       
The manner in which Kava is served, and that it was served that evening,
is relevant. Mr. Askik Hussain, as the youngest person present, was
responsible for both preparing and serving the Kava that evening. Generally,
only one person will serve throughout the evening. Guests do not serve
themselves, and this practice was followed that evening.

[13]       
Mr. Hussain said that the Kava he prepared was mild, as it is too
bitter to drink otherwise. He said he placed three to five teaspoons of Kava in
a straining cloth and mixed it with water. The Kava was prepared in a large
bowl, perhaps the size of an average salad bowl, from which individual cups or
bowls, known as “bilos”, were partly filled.

[14]       
As with tea, the Kava will drop some colour and it is only the resulting
liquid, rather than the plant itself, that is consumed.

[15]       
The “bilos”, two of which were marked as exhibits, are relatively delicate
little bowls that are generally made of coconut shells. They are perhaps three
inches in diameter and perhaps two inches deep. The shape of the base of the
bowl tracks or mirrors the curve of a coconut shell. The bowl is held so that
the person who serves places one finger on the rim of the bowl. The server can
either ladle the Kava from the larger bowl with the small bowl or use a soup
ladle to fill the smaller bowl. The bowls are then filled to below the level
where the server’s finger would be. They are thus filled to about one-half or
two-thirds of their volume. One reason that they are not filled any further is because
it is considered disrespectful to spill the contents of a bowl. The curved
shape of these bowls means that the volume that is held in the base of the bowl
is quite modest. The contents of a bowl are not sipped but, rather, are
consumed in a single motion.

[16]       
Each of Mr. Venkataya and Messrs. Askik and Immud Hussain and Mr. Nandan
has consumed Kava for several decades. Mr. Venkataya will normally have
Kava once or twice a month. On the evening of October 11, 2008, the other
gentlemen present at Mr. Faruq’s home each consumed between 15 to 25
“bilos” of Kava over the course of the evening.

[17]       
Somewhere around 2:00 a.m. on October 12, 2008, Mr. Venkataya and Mr. Nandan
left Mr. Faruq’s home. Each had been to Mr. Faruq’s home many times,
and each took the route home that they normally would. They initially drove in
the same direction, with Mr. Nandan following Mr. Venkataya. They
drove north on 134 Street and took a road which ultimately merges onto 132
Street North. They then took 134 Street North to 88 Avenue where Mr. Venkataya
turned left and Mr. Nandan continued north. Mr. Venkataya continued
west on 88 Avenue to Scott Road, known as 120 Avenue, where 88 Avenue ends. He
stopped at Scott Road and looked left and right. This, again, was his usual
route home and he was familiar with the area and with the intersection. He was
about to make a right turn onto Scott Road northbound. Until this point Mr. Venkataya
says that he felt normal. He was in the same condition that he had been in when
he went to Mr. Faruq’s home and, when he left that home, he said that he had
had no difficulty with his driving.

[18]       
This is the last thing that Mr. Venkataya remembers before the
Accident. The next thing he recalls is being asked to get out of his vehicle
and being handcuffed and placed on the ground outside of a Taco Time restaurant,
where his vehicle had just crashed into the southern wall of the restaurant. Mr. Venkataya
remembers nothing in between. He recalls being told at the scene that he had
been in an accident and being asked whether he had consumed any alcohol. He
recalls responding that he does not drink.

[19]       
Mr. Venkataya remembers little of what happened in the hours that
followed. He recalls that he was taken to a police station and that he spoke to
someone – he believes a legal-aid lawyer – on the phone. He remembers agreeing
to give and giving a breath sample. He recalls sitting or lying on a bench. He
further recalls being asked how much Kava he had consumed and that he responded
that had just had one bowl.

[20]       
Mr. Venkataya also recalls having difficulty walking after the
accident and at the police station, and having difficulty understanding and
communicating with the officers who spoke to him. He remembers being unable to
open his eyes. He recalls being told to call someone to pick him up. His wife
was called but she did not answer her phone. Constable Uppal, the lead officer
on the case, then drove Mr. Venkataya home. At the plaintiff’s home,
Constable Uppal went to the door to get the plaintiff’s wife who then assisted Mr. Venkataya
out of the police car, into their home and into bed.

[21]       
The Accident was witnessed by each of Constables Uppal and Gibson, both
of whom gave evidence. The Accident, or the events that preceded it, were
described by both police officers as “extraordinary.”

[22]       
The officers had been out of their vehicles near the corner of 88 Avenue
and Scott Road, and were attending to another routine traffic stop. Both
officers heard the plaintiff’s car hit a meridian at the corner of 88 Avenue
and Scott Road. Both described how the vehicle’s tires were spinning and how the
engine was accelerated as the vehicle was momentarily stuck on the meridian.
The officers saw the plaintiff’s vehicle eventually break free as its spinning
tires made contact with the pavement.

[23]       
Once off of the meridian, the plaintiff’s vehicle continued accelerating
and went north in the southbound lane of Scott Road before crossing over,
eventually, into the northbound lanes. The plaintiff’s vehicle passed by the
officers, who were in the street, waving for the plaintiff to stop. The
plaintiff’s vehicle came quite close to both officers as it passed by them.
Thereafter, the plaintiff’s vehicle hit several poles, signs, trees, a light
standard and a fire hydrant. It drove through a flower bed and either damaged
or destroyed the various items it had struck. The vehicle kept accelerating
until it ultimately hit the wall of a Taco Time restaurant in a strip mall on
the east side of Scott Road.

[24]       
Photographs of the plaintiff’s vehicle reveal that it was severely
damaged. Each of its four sides was significantly damaged. The front axle was
broken and one of the front wheels was stripped of its tire.

[25]       
Constable Gibson said the plaintiff’s vehicle accelerated consistently
from the moment he observed it to when it hit the building about 300 metres
later. He described the engine as being at full throttle, and said that there
was never a change in the sound of the engine.

[26]       
Constable Uppal, who dealt with Mr. Venkataya after the accident, said
that the plaintiff had difficulty standing and walking, that he was unable to
speak clearly, or to construct sentences, or to understand what was being said
to him, at least initially. Constable Uppal said that the plaintiff vomited
profusely. He did so at least six times at the scene of the Accident and at least
another three or four times at the police station.

[27]       
The plaintiff had a blood alcohol reading of zero. Constable Gibson,
noting Mr. Venkataya’s Fijian accent, then asked him about his Kava
consumption that evening. Mr. Venkataya indicated that he had consumed
Kava and, when asked how much, said “just a small bowl”.

[28]       
At the scene of the Accident, Constable Uppal had called for an
ambulance. Though Mr. Venkataya had no memory of this, it seems clear that
he told the ambulance attendants that he did not require their assistance.

[29]       
The next day, however, Mr. Venkataya went to Surrey Memorial
Hospital with his wife. He had a small cut on his head. He also had some neck,
shoulder and abdominal pain. He was at the hospital for several hours, had an X-ray
taken of his chest, and he then returned home.

[30]       
Three days after the accident he went to see his family doctor, Dr. Choo,
and told Dr. Choo that he had “blacked out” and gotten into an accident.
He was concerned because he drives for a living and he did not know what had happened
to him.

[31]       
Dr. Choo was called as a fact witness by the defendant. He had
requisitioned various tests for Mr. Venkataya, directed at various
potential medical concerns and explanations for Mr. Venkataya’s behaviour
and the Accident. Those tests included an EKG, and EEG and a CT scan. Each
test, Dr. Choo explained, was directed at ascertaining whether the
plaintiff had any underlying physical susceptibility or medical condition that
might explain what had taken place. Both the Surrey Memorial Hospital X-ray,
and these various other tests, all came back with normal results.

[32]       
The evidence establishes that Mr. Venkataya had never previously
had a stroke or seizure. He had no history of epilepsy. Though he had had some
chest pain earlier in 2008, subsequent tests had confirmed that he did not
suffer from any form of heart disease. Similarly, though Mr. Venkataya is
now being treated for diabetes, that was not the case in 2008. Furthermore,
though he is now being treated for high blood pressure and high blood sugar,
that too, was not the case in 2008.

[33]       
At bottom, Mr. Venkataya had never previously had an episode or
event of the sort he experienced on October 12, 2008, nor has he since had any
such episode. He was a fit, healthy and active individual with no apparent
medical susceptibility or frailty that would explain either his condition that
evening or the events of that evening.

[34]       
On October 21, 2008, Mr. Venkataya and his wife met with an ICBC
adjuster, Mr. Lundell, and Mr. Venkataya provided Mr. Lundell
with a statement. This statement, which was typed by Mr. Lundell during
the course of the interview, and which was signed by Mr. Venkataya at the
conclusion of the interview, stated “I did not take any drugs, prescription or
otherwise, in the 12 hours preceding the accident”. It is common ground that Mr. Venkataya
had taken either Tylenol or Benadryl during the afternoon of October 11, 2008,
though the precise dosages and times that he did so are unclear.

[35]       
Mr. Venkataya was provided with a 24-hour driving suspension that
he did not, by virtue of the cost attached to doing so, contest. He was also
initially charged with both driving while impaired and the dangerous operation
of a motor vehicle contrary to ss. 253(1)(a) and 249(1)(a)
of the Criminal Code, R.S.C. 1985, c. C-46, respectively.

[36]       
Mr. Venkataya retained counsel and pleaded not guilty to both
charges. He, ultimately, pleaded guilty to driving a motor vehicle without due
care and attention, contrary to s. 144(i)(a) of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318, and paid the appropriate fine.

Credibility and the Issue of Mr. Venkataya’s Kava Consumption

[37]       
The defendant’s position is that the evidence given by each of Messrs. Venkataya,
Askik and Immud Hussain and Nandan was not honest. It argued that each witness
was dishonest about how much Kava Mr. Venkataya drank that evening and,
for example, as it relates to Mr. Nandan, that he was dishonest about
driving behind Mr. Venkataya for some distance after they left Mr. Faruq’s
home.

[38]       
As it related to Mr. Venkataya, it was suggested, for example, that
he never even went to Mr. Faruq’s home, though that suggestion was not put
to anyone else and there was no evidence whatsoever to support the suggestion.
It was also suggested to Mr. Venkataya that he went, instead, to a nearby
“Kava house” on 120 Street. Though Mr. Venkataya was familiar with this
“Kava house”, which is apparently, a Fijian cultural center of some sort, he
denied going there that evening and, in fact, said he had not been there in the
preceding year. There was, again, no evidence that contradicted Mr. Venkataya’s
statement.

[39]       
The defendant’s various assertions are not, in the main, based on any
objective or third-party evidence. They are, instead, based on the defendant’s
central thesis, though not expressed in these terms, that absent any evidence
of medical incapacity, and having regard to the aberrant and extreme nature of Mr. Venkataya’s
driving, Mr. Venkataya must have been incapacitated or impaired by the
Kava he drank. Because it was clear, from all of the evidence, that one bowl of
Kava would not have had the effect on Mr. Venkataya that was thereafter
manifested, it must necessarily be the case that Mr. Venkataya and his
friends were not honest about the issue of Mr. Venkataya’s Kava
consumption that evening.

[40]       
In arguing that these various individuals were dishonest, the defendant
pointed to various inconsistencies between Mr. Venkataya’s evidence and
his discovery evidence, as well as between his evidence and the evidence of his
friends.

[41]       
I do not consider that such concerns detract from the credibility of Mr. Venkataya
or any of his friends. The events in question occurred nearly seven years ago.
Several of the inconsistencies the defendant points to are matters of little
consequence that are explained by the passage of time. By way of example, it
matters not whether Mr. Venkataya was the last to arrive that evening or whether
someone arrived after he did. Similarly, while it is true that Mr. Venkataya
had a different memory of the brand and type of vehicle that Mr. Nandan
was driving that night than Mr. Nandan said he was, I do not consider that
such inconsistencies are, seven years after the fact, particularly meaningful.

[42]       
The defendant also argued, for example, that Mr. Venkataya had not
been honest when he had told Dr. Choo that he had “blacked out”. Dr. Choo
confirmed that this was not a medical term and that he understood Mr. Venkataya
to be saying that he had passed out or was unconscious. Dr. Choo also said
that Mr. Venkataya had told him he had no memory of what had happened.

[43]       
It seems extremely unlikely that Mr. Venkataya was unconscious. He
drove erratically, in view of the police, for approximately 300 metres, or for
two city blocks, before he finally crashed into the wall of the Taco Time
restaurant.

[44]       
Before me, Mr. Venkataya confirmed that he simply had no memory of
the events immediately before the Accident and limited memory of the events that
followed the Accident. This is what he first told the police and what he said
at the Surrey Memorial Hospital on the day following the Accident. It is what
he told Dr. Choo, and what he said to Mr. Lundell when he provided
his statement to the defendant a few days after the Accident. At all times, Mr. Venkataya’s
evidence, however odd, has been consistent.

[45]       
I would also say that I attach no particular significance to Mr. Venkataya’s
use of the words “blacked out”. Those words are, in my view, simply a lay description
of a period of time in which a person has no memory of events. I do not
consider that expressions such as “blacked out” or “blanked out”, which was the
expression used by Mr. Venkataya in his October 21, 2008, statement to Mr. Lundell,
or “have no memory” are terribly different in meaning or consequence, and I do
not consider that Mr. Venkataya’s use of the expression “blacked out” was
dishonest.

[46]       
Each of Mr. Venkataya and the other gentlemen who gave evidence in
the plaintiff’s case are middle-aged and straightforward individuals. They were
a group of men who had played soccer together recreationally and who
periodically got together socially. Each was plain speaking and responsive to
the questions that were asked of them. Each gave substantially the same
evidence with the kinds of modest differences or inconsistencies that are
inevitable and, indeed, often signal a lack of design or orchestration.

[47]       
I consider that Mr. Venkataya was an unusually direct witness. He
often answered questions in his cross-examination with a single word, and he
agreed with most of the propositions that were put to him. Virtually, the only
issue of import that he disagreed about related to his level of his Kava
consumption that evening.

[48]       
As it relates to the issue of Mr. Venkataya’s Kava consumption, I
have two further observations. First, when Mr. Venkataya was at the police
station, he was asked by Constable Gibson whether he had consumed Kava that
evening – a matter I will return to. Mr. Venkataya was forthright and said
that he had. Both Constables Gibson and Uppal, who were present and who
overheard the conversation, testified that Mr. Venkataya then responded
that he had had “one bowl”. Constable Gibson, more precisely, said that Mr. Venkataya
responded “one small bowl”. Both officers also said that Mr. Venkataya had
concurrently held out his hands about 12–14 inches apart when he responded to
them. Both appear to have understood, at the time, that this was the quantity
of Kava that Mr. Venkataya had consumed, with Constable Gibson estimating
that Mr. Venkataya described a bowl that contained three to five litres of
Kava.

[49]       
Constable Gibson, who had played rugby overseas, including in the South
Pacific, had observed some players from, for example, Fiji or other Polynesian
islands consume Kava. Originally, he said that he had observed players passing
around a large communal bowl that contained Kava between themselves, though he
then said he had also seen players dipping smaller bowls into a larger communal
bowl. In any event, both he and Constable Uppal, who gave evidence by video
deposition, accepted that they did not know whether Mr. Venkataya’s physical
description of the bowl meant that he had consumed a bowl of Kava of that size,
or simply, that he was describing the size of the communal bowl that the group he
was with had drank from.

[50]       
Second, counsel for the defendant never suggested to any of Messrs. Askik
or Immud Hussain or to Mr. Nandan, that they were either mistaken or not
honest when they said that Mr. Venkataya had only had one or two “bilos”
of Kava. Similarly, Mr. Askik Hussain was not questioned, in any way,
about his evidence that the Kava he prepared that evening was “mild”.
Furthermore, there is nothing in the nature of the cross-examinations of these
gentlemen that would have suggested that they were not being forthright, or
that would enable counsel for the defendant to argue that there is no need to
ask them about Mr. Venkataya’s Kava consumption because the credibility of
the gentlemen had already been sufficiently impugned. In saying this, I
recognize that counsel for the defendant did suggest to Mr. Nandan that he
did not follow Mr. Venkataya when they left Mr. Faruq’s home.

[51]       
Normally, if a cross-examiner or party intends to impeach the
credibility of a witness by means of intrinsic evidence, he must give notice of
that intention to the witness; Alan W. Bryant, Sidney N. Lederman &
Michelle K. Fuerst, eds., Sopinka, Lederman & Bryant: The Law of
Evidence in Canada, 3d ed. (Markham, Ont.: LexisNexis Canada, 2009) at para. 16.179.
This is known as the rule in Browne v. Dunn and is described in the Sopinka
text:

§16.180           The
rule extends not only to contradictory evidence, but to closing argument as
well. In Browne v. Dunn, Lord Hasbury added:

To my mind nothing would be more absolutely unjust than not
to cross-examine witnesses upon evidence which they have given, so as to give
them notice, and to give them an opportunity of explanation, and an opportunity
very often to defend their own character, and, not having given them such an
opportunity, to ask the jury afterwards to disbelieve what they have said,
although not one question has been directed either to their credit or to the
accuracy of the facts they have deposed to.

[52]       
As noted in the preceding passage, the rule in Browne v. Dunn
applies both when counsel intends to call evidence that contradicts what a
witness has said and when counsel seeks to challenge the credibility of a
witness in his or her final submissions; see for e.g. R. v. McCarroll, 2008
ONCA 715, paras. 107-109; XY, LLC v. International Newtech Development
Incorporated, 2015 BCSC 1524, at paras. 59-61.

[53]       
The rule in Brown v. Dunn remains a sound rule of general
application; Sopinka text at para. 16.182; R. v. Lyttle,
2004 SCC 5 at para. 65. However, the rule is not absolute, nor does it
give rise to any presumption of truth; R. v. Mete, [1971] B.C.J. No. 603
at paras. 13-14 (C.A.). Instead, the object of the rule is to treat
witnesses and the parties fairly. There is no need that every proposition that
is being challenged be put to a witness. This is particularly so where it is
manifest from the content and tenor of a cross-examination that the credibility
of a witness is being broadly impugned.

[54]       
At bottom, then, the issue of Mr. Venkataya’s Kava consumption was
consistent, or essentially consistent, as between Mr. Venkataya and the
three other witnesses who were with him that evening. Furthermore, the evidence
of those three witnesses was never tested on this central issue. At the same
time, the evidence given by Constables Uppal and Gibson, properly considered,
is not inconsistent with the evidence given by Mr. Venkataya or by his
friends.

Issue 1: Was Mr. Venkataya Under the Influence of an Intoxicating
Substance that Rendered him Incapable of Controlling his Vehicle?

[55]       
Section 55(1.1)(8)(a) of the Insurance (Vehicle) Regulation, B.C.
Reg. 441/83, provides:

Breach of conditions

55        (1)        In
this section, "insured" means an insured as defined in section
42, 63, 65, 78 or 148.1 (1) and includes an insured under a special coverage
certificate or a fleet reporting certificate issued under section 168.

(1.1)     The corporation is not liable to an insured
who breaches a condition of this section or is deemed under subsection (7.1) or
(8) to have breached a condition of section 49 and Part 6.

(8)        An insured shall be deemed to have breached
a condition of section 49 and Part 6 where

(a)        the insured is operating a vehicle while
the insured is under the influence of intoxicating liquor or a drug or other
intoxicating substance to such an extent that he is incapable of proper control
of the vehicle,

[56]       
The foregoing provisions have been considered numerous times and the
legal framework that ensues from the relevant authorities is well-understood.

[57]       
In Smissen v. ICBC, 2004 BCSC 742, Chamberlist J. said:

[40]      In Kim v. Insurance Corp. of British Columbia,
[1980] B.C.J. No. 1628, Vancouver Registry No. B791397, McKenzie J.
dealt with similar circumstances as this where the Insurance Corporation denied
coverage on the basis that the plaintiff was in breach of his insurance by
operating a motor vehicle while he was under the influence of alcohol and/or
drugs. Breathalyser tests were administered which gave readings of .09. The
breathalyser demand was made and was motivated by the smell of alcohol and the
fact of an accident. As in this case, no charges were laid. At para. 12,
McKenzie J. quoted, with approval, the law relative to the predecessor of
s. 55(8)(a) as being expressed by Mackoff J. in Nash v. Insurance
Corporation of British Columbia, [[1977] I.L.R.] 640 at 642:

The onus in a case such as this is on the defendant to prove
that Nash was at the time of the accident under the influence of intoxicating
liquor to such an extent as to be incapable of the proper control of his
automobile. Proof of some impairment of his faculties is not enough. Incapacity
must be proven: Villeneuve v. Fireman’s Fund Insurance Company, [1971] 5
W.W.R. 109 ([1972] [I.]L.R. 434). The standard of proof is on the balance of
probabilities: Hanes v. Wawanesa Mutual Insurance Co. (1963), 36 D.L.R.
(2d) 718.

[58]       
At paras. 41-43 of Smissen, Chamberlist J. referred to
several further authorities which reiterate these same principles. More
recently, Ballance J. in McDonald v. Insurance Corporation of British
Columbia, 2012 BCSC 283, summarized a series of further authorities that
are relevant to s. 55(8)(a) of the Insurance (Vehicle) Regulation
and said:

[152]    The governing principles were neatly summarized in MacGregor
v. Insurance Corp. of British Columbia (1993), 14 C.C.L.I. (2d) 195
(B.C.S.C.) at para. 4:

The authorities make it clear that the insurer must prove
the incapacity on a balance of probabilities: see Kulbaba v. Insurance Corp.
of British Columbia. (1981), 32 B.C.L.R. 189 (S.C.). Proof of impairment or
of an illegal level of alcohol in the blood is not, by itself, sufficient. Nor
is proof of drinking and negligence enough. The insurer must establish that in
all the circumstances of the particular case there was an incapacity to
exercise proper control. In Caissie v. Insurance Corp. of British Columbia,
[1989] B.C.J. No. 1020, Van. Registry No. CA008908, dated May 24,
1989, the B.C. Court of Appeal approved the test as stated by McKenzie J. in Schedeger
v. Insurance Corp. of British Columbia, [1982] I.L.R. 1-1562 (B.C.S.C.) as
follows:

Negligence on his part might be of such a nature and
degree that, in conjunction with independent evidence of impairment, it might
provide proof on a balance of probabilities that incapacity to exercise proper
control in fact existed. The question here is whether the evidence
demonstrates, on a balance of probabilities, that the negligent acts were of
such a nature and degree as to be explainable only by compelling the inference
that the influence of alcohol caused the negligent acts and that the effect of
the alcohol was to render him incapable of proper control. This can be tested
by asking whether the collision would have been avoided if the plaintiff had
been sober.

[153]    The requisite level of
incapacity can be and often is established by circumstantial evidence: Patterson
v. Insurance Corp. of British Columbia (1996), 22 B.C.L.R. (3d) 342 [Patterson].
Evidence that the driver consumed alcohol before the accident in combination
with evidence of careless driving will not necessarily be sufficient to
discharge the burden of proof. Even an illegal level of alcohol in the driver’s
blood or a conviction for impaired driving or for failing to provide a breath
sample, will not be conclusive: Patterson ; Dhiman v. Insurance Corp.
of British Columbia, 2007 BCSC 260 [Dhiman] . On the other hand,
where the driver exhibits considerable symptoms of intoxication, and the
circumstantial evidence as a whole inescapably leads to the conclusion of
impairment, the fact that there may be alternate explanations for some of the
driver’s symptoms, will not displace the inference of incapacity: Dhiman
. The appropriate test is whether the accident would have been avoided if the
insured had been sober: Smissen v. Insurance Corp. of British Columbia,
2004 BCSC 742.

[59]       
In most of the foregoing cases, the issue before the court was whether
the insured was “incapable” of proper control of his or her motor vehicle. That
is not an issue in this case. The nature of Mr. Venkataya’s driving, as
described by Constables Uppal and Gibson, together with the damage that Mr. Venkataya
caused, clearly establishes that Mr. Venkataya was not capable of proper
control.

[60]       
The issue in this case is whether Mr. Venkataya was under the
influence of an intoxicating substance. This is not an issue that is raised in
any of the authorities that were provided to me by either counsel. Instead, in
all of these cases it was clear that the insured had consumed alcohol prior to
having had an accident, though there may have been some dispute about how much
alcohol they had consumed; see e.g. McDonald at para. 155; Kulbaba
v. Insurance Corporation of British Columbia (1981), 32 B.C.L.R. 189 at 190
(S.C.); Caissie v. Insurance Corp. of British Columbia, [1989] B.C.J. No. 1020
(C.A.); Shedger v. Insurance Corp. of British Columbia, [1982] B.C.J. No. 154
at para. 1 (S.C.).

[61]       
The defendant in this case, who bears the onus of proof, sought to
establish that Kava is an intoxicating substance. It endeavoured to do so in
two ways: first, through the evidence of Constable Gibson and, second, through
the expert evidence of Dr. McNeill, who is a pharmacologist.

A)       The Evidence of Constable Gibson

[62]       
As discussed briefly above, before Constable Gibson became a police
officer he had played rugby at a high level and had competed internationally.
He travelled to various countries and played against teams from various
nations. He played, for example, against teams from Samoa, Tonga, the Cook
Islands and Fiji.

[63]       
He had heard of Kava during his travels, and he said that he had seen
players from other nations consume Kava. He also said he had seen the effects
of Kava use. He said that the symptoms of Kava use were similar to the symptoms
that Mr. Venkataya displayed on the evening he was arrested.

[64]       
There are several difficulties with Constable Gibson’s evidence. First,
he accepts that he has never consumed Kava. Rather, his evidence is based on
the behaviours and symptoms he observed in other persons who had consumed Kava.

[65]       
Constable Gibson said that these observations were made in rugby clubhouses
or halls. As he did not drink Kava, he did not join those who did but, rather,
would observe them from a distance. They were observations of persons “in the
vicinity”.

[66]       
He also accepted that some of these Kava drinkers would also drink a
beer or wine, and that others would also consume marijuana. As will be seen
from the evidence of Dr. McNeill, Kava, when consumed together with
alcohol, likely produces different results than Kava that is consumed alone. He
further accepted that he was unable to say how much Kava various Kava drinkers
would consume.

[67]       
Nevertheless, Constable Gibson said he was able, through what he
accepted were “casual observations” made in a casual setting, to distinguish
between persons who consumed Kava alone and those who consumed Kava in
combination with alcohol or some other substance.

[68]       
The foregoing evidence is necessarily fragile and unreliable. That
unreliability is coupled with the fact that some of the symptoms of Kava use
that Constable Gibson described are not consistent with the symptoms of Kava
use that are described in the modest body of scientific literature that exists
and that Dr. McNeill referred to. Thus, leaving aside the hearsay nature
of this evidence, Constable Gibson said that he had been told by others that
Kava caused “visions” and was a hallucinogenic substance. There was no
suggestion that this is so from Dr. McNeill or from any of Messrs.
Venkataya, Nandan, or Askik or Immud Hussain, all of whom had consumed Kava for
many years. Indeed, that suggestion was never put to any of these individuals.

[69]       
The report to Crown Counsel that was subsequently prepared by Constable
Gibson, as well as Constable Gibson’s notes, only referred to Mr. Venkataya
having had “watery eyes” and to his having vomited. Neither of these symptoms
are, again, consistent with the scientific literature that relates to Kava use.

[70]       
Constable Gibson also said he had a memory of Mr. Venkataya
appearing to be uncoordinated. This specific evidence was repeated by Constable
Uppal, who both officers accepted was charged with observing Mr. Venkataya,
and I accept their evidence. Constable Gibson also said that Mr. Venkataya
appeared “lethargic”. This observation was not in Constable Gibson’s report or
in his notes, and is solely based on his recollection seven years after the
fact. It is also not an observation that Constable Uppal ever made or recorded
or reported. In such circumstances, this last observation and, more
specifically, its reliability, is questionable.

[71]       
Finally, and in a similar vein, Constable Gibson accepted that when he
and Constable Uppal first arrested Mr. Venkataya they believed, based on
the symptoms they observed, that Mr. Venkataya had been drinking. When Mr. Venkataya
denied that this was so, and when the breathalyzer test he took proved this was
not the case, Constable Gibson said he “came up with a different theory” based
on his earlier observations of a person who had consumed Kava. The fact is,
however, that the very limited scientific evidence that does exist suggests
that most of the symptoms of Kava use, which I will turn to shortly, and of alcohol
use, respectively, are quite different.

B)       The Evidence Dr. McNeill

[72]       
Dr. McNeill is an extremely accomplished individual. He is a
professor and Dean Emeritus in the Faculty of Pharmaceutical Sciences at the
University of British Columbia where, as of the date of his first report in
this case, he had worked for 39 years. He has authored hundreds of papers and
spoken at hundreds of conferences. Though his research has primarily focused on
diabetes and the cardiovascular system, he has taught a course on “Drugs of Abuse”.
He has also testified dozens of times, before various courts, in both civil and
criminal proceedings, about the effects of alcohol and various drugs, and about
the misuse of various drugs.

[73]       
Dr. McNeill authored three reports that addressed the various
questions that had been put to him. His first and central report, dated
November 29, 2011, was the dominant focus of his evidence and of his
cross-examination, and it is that report that I have focused on. This report
suffers from several significant difficulties. I do not consider that these
difficulties are attributable to any particular failing on the part of Dr. McNeill.
Rather, it is a matter of the report either not complying with various legal
requirements or of the report offending various strictures that may not have
been known to Dr. McNeill.

[74]       
The need for courts to vigilantly supervise the admissibility of expert
reports, and to ensure that their contents properly comport with relevant requirements,
has been repeatedly emphasized. Most recently, in White Burgess Langille
Inman v. Abbott and Haliburton Co., 2015 SCC 23, the Court said:

[16]      Since at least the
mid-1990s, the Court has responded to a number of concerns about the impact on
the litigation process of expert evidence of dubious value. The jurisprudence
has clarified and tightened the threshold requirements for admissibility, added
new requirements in order to assure reliability, particularly of novel
scientific evidence, and emphasized the important role that judges should play
as "gatekeepers" to screen out proposed evidence whose value does not
justify the risk of confusion, time and expense that may result from its
admission.

[75]       
In R. v. Mohan, [1994] 2 SCR 9 at 20, the Court developed four
threshold requirements for the admissibility of expert opinion evidence:

(a)        relevance;

(b)        necessity in assisting the trier of fact;

(c)        the absence of any exclusionary rule;

(d)        a properly qualified
expert.

[76]       
In the case before this Court, there is no issue with three of these
requirements. Though Dr. McNeill has never directly studied Kava or
conducted research into Kava or its properties or its effects, I still consider
that he is, with his background and expertise, properly qualified to give evidence
on most questions that were put to him and, in particular, on the questions
that relate to the nature and effect of Kava consumption. His second report
contains some opinion evidence relating to concussions, and it would not appear
that he has any qualifications to give such evidence. Indeed, he recognizes
this in the report. In his third report, he gives some evidence about syncope
and various forms of syncope. Again, Dr. McNeill does not appear to have
the qualifications required to address this medical condition and his report
is, instead, a common-sense response, based on a weighing of the evidence he
had reviewed, to an expert report from Dr. Choo that was served on the
defendant, but that was never then filed.

[77]       
I further consider that Dr. McNeill’s first expert report satisfies
two further Mohan requirements – relevance and necessity. Still further,
I consider that Dr. McNeill was throughout objective and impartial. Indeed,
there is no suggestion otherwise.

[78]       
It is the fourth Mohan consideration, the existence of other
exclusionary rules, that gives rise to difficulty. First, it is clear that Dr. McNeill
was given various police files and materials that were never put into evidence
or whose contents were never thereafter established. These materials include
letters to Crown counsel, a report from a police pathologist, a Delta Police
Department report and other notes. It is clear that Dr. McNeill relied on
these reports and took, as a given, certain facts that are in dispute. He
initially understood, for example, that the fact Mr. Venkataya had
consumed a large quantity of Kava was uncontested.

[79]       
Defence counsel sought, after these difficulties were identified in
advance of Dr. McNeill giving evidence, to have Dr. McNeill address
the extent to which he relied on these various materials. That exercise was
imprecise and, ultimately, unsatisfactory.

[80]       
A known danger of expert evidence is the fact that that opinion is often
derived from unsworn and untested materials that would otherwise be
inadmissible; R. v. D.D., 2000 SCC 43 at para. 55; White Burgess
Langille Inman at para. 18. Where expert opinion is based on a mix of
admissible and inadmissible evidence, “the weight attributable to the expert
testimony is directly related to the amount and quality of admissible evidence
on which it relies”; R. v. Lavallee, [1990] 1 S.C.R. 852 at 897.

[81]       
In Mazur v. Lucas, 2010 BCCA 473 at para. 40, the court
summarized the leading authorities and concluded that an expert witness may
properly rely on a variety of source including, but not limited to, “his own
intellectual resources, observations or tests, as well as his review of other
experts’ observations and opinions, research and treatises, information from
others” and hearsay, and that the correct response is not to withdraw this
evidence but, rather, to address the issue of weight in an appropriate
self-instruction or instruction to the jury. On the issue of determining
weight, the court commented at para. 40:

The weight the trier of fact
ultimately places on the opinion of the expert may depend on the degree to
which the underlying assumptions have been proven by other admissible evidence.
The weight of the expert opinion may also depend on the reliability of the
hearsay, where that hearsay is not proven by other admissible evidence. Where
the hearsay evidence (such as the opinion of other physicians) is an accepted
means of decision making within that expert’s expertise, the hearsay may have
greater reliability.

[82]       
A second and related difficulty is that Dr. McNeill relied extensively
on various non-scientific Internet sources to support his opinion. Thus, he
referred to and relied on a reference from Wikipedia. He relied on various
warnings on the Internet from the producers of herbal Kava about the effects of
Kava use and its propensity to cause drowsiness. He apparently relied on an
Internet solicitation from a class-action lawyer that addressed the hazards of
Kava use. In this vein, it should be noted that Kava was once thought to cause
liver disease, but this has now been proven not to be so. Dr. McNeill also
reviewed various online newspaper articles that reported on three convictions
for impaired driving following Kava use. Two of these convictions were
apparently in the United States and one was in New Zealand. Dr. McNeill
accepted that he never reviewed the formal case reports relating to these
matters and that he had no knowledge of what, if any, opinion evidence underlay
these incidents.

[83]       
The difficulties associated with an expert relying on such matters and
materials are self-evident. We live in an age where a great deal of
information, both accurate and inaccurate, is available from a great many
sources. Experts are often carefully examined and cross-examined on the
pedigree of the literature, journals and other materials that they have relied
on. This is so that such materials can be tested and determined to be reliable
or authoritative and so that the court can have confidence in the opinions that
are then based on the foundation of these materials. Courts cannot rely on
untested and unverified reports, anecdotes, personal reflections or mythology.

[84]       
The concerns I have identified, in the context of this case, are also
indirectly related to the concern that courts have repeatedly expressed in
relation to novel or “junk” science; see e.g. White Burgess Langille Inman at
paras. 16-24.

[85]       
Such concerns arise either when a scientific technique or knowledge is
new or when the application of recognized scientific knowledge or technique is
new; see R. v. Trochym, 2007 SCC 6 at para. 133, Bastarache J.,
dissenting; David M. Paciocco & Lee Stuesser, The Law of Evidence,
7th ed. (Toronto: Irwin Law Inc., 2015) at 225.

[86]       
In this case, there is nothing “new” or novel about testing the effects
of a particular substance on one or more subjects. At the same time, there has
been very little study on the extent to which, if at all, elevated levels of
Kava consumption can impair the movements or faculties of an individual. In
such circumstances, it is all the more important that the court, as gatekeeper,
properly filter both information and sources that are not proven to be
reliable.

[87]       
Ultimately, the fact that Dr. McNeill relied on some factual
assumptions arising from various police reports that were never put into
evidence or otherwise proven, and that he relied on various online sources
whose reliability was never established, does not prevent his first and primary
report from being admitted into evidence. His report still refers to scientific
studies, dealing with Kava consumption, that are reliable and that are of
assistance to the Court. Such deficiencies do, however, affect the weight to be
given to his report.

[88]       
A further difficulty that arises from Dr. McNeill’s reference to and
reliance on such materials is that he has merged the conclusions that arise
from them with the conclusions that arise from those few pieces of scientific
literature that were available to him. This is so even though the conclusions
arising from the scientific materials is, it would seem, inconsistent with the
various other untested and less reliable sources that he referred to.

[89]       
Dr. McNeill said he relied on three scientific articles. Only two
of the articles are referenced in the text of his report, and it was only these
two articles that he was cross-examined and then re-examined on. In one of
these articles, H. Foo & J. Lemon, “Acute effects of kava, alone or in
combination with alcohol, on subjective measures of impairment and intoxication
and on cognitive performance” (1997) 16 Drug and Alcohol Review 147 at 154-155,
the authors concluded that Kava consumption alone did not give rise to
intoxication, though Kava in combination with alcohol did. The authors
questioned, but arrived at no conclusion, on what might occur at still higher
levels of Kava consumption than were used in the study.

[90]       
In relation to the second article, Sheree Cairney et al, “Saccade and
cognitive impairment associated with kava intoxication” (2003) 18 Human
Psychopharmacology Clin. Exp. 525, which studied 11 subjects who had consumed 150
times the clinical dose of Kava, Dr. McNeill said, in his November 29,
2011, report:

As indicated, extensive
scientific studies on Kava and its effects have not been carried out. One study
(#11 [the Cairney study]) on 11 individuals who consumed a relatively high dose
of Kava has been reported. Intoxicated Kava drinkers showed ataxia (loss of
control of body movements), tremors, sedation, rapid eye movements, reduced
visual attention, abnormal blinking and eye muscle spasm. Intoxicated
individuals eventually fell into a deep slumber. The Discussion section of the
paper notes “ … Kava acts on specific brain systems associated with motor
coordination and visual attention rather than inducing a generalized confusion
and delirium as occurs with high levels of alcohol intoxication … It also
corresponds to the main aspects of abnormal behaviour that are observed in
individuals intoxicated from heavy Kava use, who continue to have sensible
thought processes and comprehensive conversations yet have difficulty
coordinating movement and often fall asleep eventually at the same location
where they had been drinking Kava.”

[91]       
In the newspaper accounts that Dr. McNeill referred to, and which
he then described in his report as “literature”, some of the symptoms that were
reported as a result of Kava consumption now included, for example, “blood-shot
eyes and slurred speech”.

[92]       
Dr. McNeill then focused on aspects of Mr. Venkataya’s
symptoms that Constables Uppal and Gibson had identified, which included, for
example, “blood-shot eyes” and “slurred speech”, to conclude that Mr. Venkataya
was impaired as a result of Kava consumption.

[93]       
If one relies solely on the scientific literature that Dr. McNeill
referred to and the cross-examination that took place on that literature,
certain conclusions ensue. That literature is, in Dr. McNeill’s words,
“pretty thin”. The two articles I have referred to give rise to different
conclusions. One article concluded that Kava consumption alone did not produce
any significant effects on the subjects tested. The other study, which Dr. McNeill
accepted, suffered from various deficiencies and was not “Nobel Prize work”,
arrived at the finite conclusions that Dr. McNeill quoted and that I have
described.

[94]       
These finite conclusions do not suggest that Kava users have difficulty
speaking or that Kava consumption causes vomiting. The symptoms of Kava consumption
do not include confusion or loss of memory. The opposite appears to be the
case. “Heavy Kava use” does not impair “sensible thought processes and comprehensive
conversations”. The article indicates that individuals who consume significant
quantities of Kava became drowsy and fall asleep. The symptoms associated with
eye movement are also relatively specific and are focused on visual attention
with such symptoms as “rapid eye movements” and “abnormal blinking and eye
muscle spasm”. The symptoms also include a loss of control of body movement.

[95]       
The only symptom identified in the Cairney study that correlates with Mr. Venkataya’s
behaviours or symptoms is the fact that his muscle movements were clearly
uncoordinated. Both he and Constable Uppal said that he had considerable
trouble walking or standing, and that he had had to sit down on a bench when at
the police station.

[96]       
Mr. Venkataya, however, was violently ill. He vomited no less than
six times in the first half hour after the Accident and a further three or four
times at the police station. He had significant difficulty speaking for some period
of time. He was unable to understand what was said to him. His memory of events
was significantly impaired. His eyes, while blood-shot and watery, did not display
the type of rapid eye movement or spasming described in the literature. Mr. Venkataya
was not drowsy and he never fell asleep, although he was at the police station
for some time.

[97]       
There is, then, relatively limited correlation between Mr. Venkataya’s
behaviours and condition on the night of his Accident with what might be
expected from excessive Kava consumption based in the single scientific article
that found neurobehavioural changes as a result of Kava consumption.
Furthermore, that single article relies on significant and excessive levels of
Kava consumption in circumstances where I have determined that I accept that Mr. Venkataya
only consumed one or two bowls of Kava on the evening that he had the Accident.

[98]       
There is a further body of evidence, both direct and circumstantial,
that militates against the defendant. Each of Messrs. Venkataya, Askik and
Immud Hussain and Nandan said that they had consumed Kava for decades without
ever being intoxicated. Each denied every being ill or having suffered any
ill-effects from having consumed Kava. None had ever experienced any adverse
physical sensations, including any confusion or difficulty with vision or with
standing or walking. They had never encountered any difficulty driving.
Moreover, they had never witnessed such ill-effects in any third party who had
consumed Kava.

[99]       
This evidence, at least indirectly, is supported by other
considerations. I was advised by counsel for the defendant that there is no
record or report of there having ever been a prosecution for impaired driving
as a result of Kava consumption, successful or otherwise, in Canada. Similarly,
Constable Uppal, who, in 2008, had been on the police force in Delta for four
or five years, had never so much as heard of Kava. This is, notwithstanding the
presence of a significant Fijian population in the Surrey/Delta area, and of
the existence of no less than three or four “Kava houses” in those communities.

[100]     It is also
noteworthy that Mr. Venkataya went to Dr. Choo, within days of the
accident, in order to ascertain whether he was unwell, or to learn what had prompted
his condition on the evening of the accident. He then underwent numerous tests
in the period that followed. Such conduct is inconsistent with an individual
who knows he has consumed excessive amounts of an intoxicating substance.

[101]    
A further matter of note arises. Mr. Venkataya drove, without
incident, for about 15 to 20 minutes after leaving Mr. Faruq’s home. He
was, as I have said, followed for a part of this time by Mr. Nandan. Mr. Nandan
said that there was nothing erratic about Mr. Venkataya’s driving. In this
respect, the facts are similar in Smissen, where Chamberlist J.
summarized:

[44]      In the case at bar, the
evidence of Mr. Sidor is the best evidence of the driving of the plaintiff
on the night in question. He had followed him for 8 km on a windy road and had
not noticed anything that alarmed him as to the plaintiff’s driving. He
maintained visual contact with the plaintiff’s vehicle for a number of kilometers
and it was not until approaching the intersection that the plaintiff’s
vehicle’s movement caught his attention. That is the time when, I have
concluded, the plaintiff suffered a black-out due to his sick sinus syndrome.

[102]     One
further issue arises. It appears, on the whole of the evidence, that Mr. Venkataya
took either one or two Benadryl or Tylenol tablets, either between 2:00 to 4:00
p.m. on October 11, or a few hours after that. There was some suggestion that Mr. Venkataya’s
having taken Benadryl, either alone or in combination with Kava, caused his
condition thereafter.

[103]     Dr. McNeill
said Tylenol would not give rise to any such condition or symptoms. He said
that taking even one Benadryl tablet of 25 mg can give rise, in some persons,
to effects that are similar to having a .08 blood-alcohol reading. He accepted
this would likely not be the case with Mr. Venkataya based on how much
earlier Mr. Venkataya had consumed the medication he had. He also accepted
that an individual’s size and weight and frequency of use would all be relevant
in assessing the effect of use on a particular individual. Mr. Venkataya
was a regular Benadryl user on account of certain allergies that he had. Such
regular use would likely cause some greater tolerance in Mr. Venkataya. Mr. Venkataya
is also, as I have said, a large man.

[104]     Dr. McNeill
also acknowledged that no work had been undertaken to study the interaction of
Benadryl and Kava, though he said that some work has been conducted on the
interaction of Benadryl and alcohol.

[105]     I
recognize that both the events surrounding the Accident and Mr. Venkataya’s
conduct in relation to those events are highly unusual and without any ready
explanation. The burden lies on the defendant, however, to establish that Mr. Venkataya
was incapable of operating a motor vehicle as a result of his having consumed
“a drug or intoxicating substance”. The whole of the evidence does not, on a
balance of probabilities, satisfy that burden.

Issue 2: Did the Plaintiff Make a Willfully False Statement with Respect to
the Claim?

[106]    
Section 75 of the Insurance (Vehicle) Act, R.S.B.C. 1996,
c. 231, provides that the right of an applicant to insurance money can be
forfeited in certain circumstances, including:

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 willfully
false statement with respect to the claim.

[107]     The
defendant relies upon s. 75(c) – that the plaintiff made a willfully false
statement with respect to the claim. The alleged willfully false statement is
that the plaintiff had not consumed drugs in the 12 hours prior to the
Accident.

[108]    
It is clear from the wording of the provision that the defendant must
provide, not only that a statement is false, but that it was willfully false.
In Petersen v. Bannon (1993), 84 B.C.L.R. (2d) 350 (C.A.), the court
summarised:

46        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.

47        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.

This distinction as between an intentional, knowing or
purposeful statement  as compared to a careless, thoughtless, heedless or
inadvertent statement continues to be applied; see e.g. Streeper Contracting
Ltd. v. Insurance Corporation of British Columbia, 2013 BCSC 355 at paras. 45-46;
King v. Insurance Corporation of British Columbia, 2010 BCSC 1740 at para. 110.

[109]     The
statement must also be material to the claim. The legal test for the defendant
to succeed under s. 75(c) was addressed by the Court of Appeal in Gilchuk
v. Insurance Corp. of British Columbia (1993), 82 B.C.L.R. (2d) 145 at para. 18
(C.A.): the willfully false statement must be one that was capable of affecting
the mind of the insurer with respect to the management of the claim or deciding
to pay it.

[110]     Mr. Venkataya’s
evidence is that he was asked questions by the adjuster, Mr. Lundell,
which he answered, which Mr. Lundell put into a statement, and which Mr. Venkataya
and his wife then reviewed. He recalls Mr. Lundell asking about
“prescription drugs” and he said no, which was true. He concedes that the
statement contains the language “prescription or otherwise”, and indicated that
he simply overlooked the significance of the language “or otherwise”. He
accepts that he read the statement carefully, as did his wife, and that he
initialled one or two other changes to the statement.

[111]     Mr. Lundell
was a straightforward witness. He accepted he had no memory of his interaction
with Mr. Venkataya and that that he relied, instead, on his standard
practice in terms of what he said or did when he was with Mr. Venkataya
and his wife.

[112]     Mr. Lundell
indicated that his wording of the written statement would essentially mirror
the question he asked. In terms of the language in question, his evidence was
that he took to using the standard language “drugs, prescription or otherwise,”
because when he asked simply about “drugs” people tended to think he was
talking about illegal drugs.

[113]     I do not
consider that Mr. Venkataya made a willfully false statement. Mr. Venkataya
has never denied that he took either Tylenol or Benadryl at some point in the
afternoon or early evening of October 11, 2008. He told the police he took
Tylenol. He told the persons who attended to him at the Surrey Memorial
Hospital that he had taken Benadryl, and he said the same thing to Dr. Choo
when he met with him a few days after the Accident. It is unlikely that he
would have unhesitatingly told the various individuals that he had taken some
off-the-shelf medication a number of hours before the Accident, and then
willfully or intentionally sought to mislead the defendant with respect to the
same issue.

[114]     This
conclusion is reinforced by the fact that Mr. Venkataya told Mr. Lundell
that he had been initially charged with respect to the Accident. Again, there
appears to have been no intention, on the part of Mr. Venkataya, to misstate
or understate the nature or consequences of his conduct.

[115]     These
conclusions confirm that s. 75(c) of the Insurance (Vehicle) Act is
not relevant in the present circumstances. I would add, as a separate matter,
that it is not at all clear that Mr. Venkataya’s misstatement was
material. It is hard to imagine that an insurer would view an insured’s use of
an off-the-shelf allergy medication, within normal or recommended dosages, some
8 to 12 hours before an accident, as material to the claim being advanced by
that insured.

[116]     In all of
the circumstances, I am satisfied that s. 75(c) of the Insurance
(Vehicle) Act is not engaged, and does not enable the defendant to treat
the plaintiff’s claim as “forfeited”.

[117]    
The plaintiff is to have judgment in the amount of the replacement cost
of his vehicle. The plaintiff is also to have costs of this action.

“Voith
J.”