Date Issued: January 18, 2021

File: SC-2020-006140

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Anderson v. ICBC, 2021 BCCRT 57

Between:

CAROL ANDERSON

Applicant

And:

INSURANCE CORPORATION OF BRITISH COLUMBIA

Respondent

INTRODUCTION

1.      This small claims dispute is about insurance coverage for a stolen vehicle.

2.      On December 1, 2019, the applicant, Carol Anderson reported, to the respondent insurer, Insurance Corporation of British Columbia (ICBC), that her 2007 Chevrolet Cobalt had been stolen. In the course of ICBC’s investigation, Ms. Anderson provided some incorrect information.

3.      ICBC says it denied insurance coverage on the grounds that Ms. Anderson’s statements were “wilfully false” under section 75(1)(c) of the Insurance (Vehicle) Act (IVA), which forfeited her insurance coverage.

4.      Ms. Anderson says her statements were not wilfully false. She seeks $5,000, which she says includes the replacement cost of her vehicle, reimbursement of vehicle rental costs, and other costs she says ICBC requires her to pay.

5.       Ms. Anderson is self-represented. ICBC is represented by an employee.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

7.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, the parties in this dispute call into question each other’s credibility. Credibility of witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. In Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required where credibility is in issue. In the circumstances of this dispute, I find that I am able to assess and weigh the evidence and submissions before me. Bearing in mind the CRT’s mandate that includes proportionality and prompt resolution of disputes, I decided to hear this dispute through written submissions.

8.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

Evidence request

10.   In her final reply submissions, Ms. Anderson says she hopes that the CRT will request 2 telephone call recordings, one with her adjuster SJ and another with another ICBC employee. She says the conversations will provide relevant evidence, but she does not explain how the conversations are relevant. I am not persuaded that the conversations are relevant given they occurred after the alleged false statements.

11.   It appears that Ms. Anderson did not follow the CRT rule 8.2 procedure for requesting evidence, which includes asking for it in writing before completing a Summons Form in consultation with a case manager and following the required directions. Keeping in mind the CRT’s mandate of speed, efficiency, proportionality, and fairness, I find Ms. Anderson is not entitled to seek further evidence from ICBC at this late stage.

ISSUES

12.   The issues in this dispute are:

a.    Did Ms. Anderson make a wilfully false statement under section 75(1)(c) of the IVA, forfeiting her insurance coverage?

b.    If not, to what extent is she entitled to compensation for her stolen vehicle under her insurance policy?

EVIDENCE AND ANALYSIS

13.   As the applicant in this civil dispute, Ms. Anderson must prove her claim on a balance of probabilities. I have considered all the parties’ evidence and submissions, but only refer to what is necessary to explain my decision.

14.   Ms. Anderson has the initial burden to prove that a loss occurred that was covered by her insurance policy. It is undisputed that Ms. Anderson’s vehicle had a valid insurance policy that provided coverage if the vehicle was stolen. If Ms. Anderson proves that her vehicle was stolen, the onus then shifts to ICBC to show that Ms. Anderson made a wilfully false statement material to the claim: Serown v. Insurance Corp. of British Columbia, 1999 CanLII 6446 (BC SC).

15.   Ms. Anderson says that on November 30, 2019, she spent the night at the house of a friend, RR. She says at 10:30 p.m. she went outside for a cigarette, double checking that her car was locked before going back inside for the night. When she awoke at 6:30 a.m. the next day, she discovered the vehicle was missing. She reported her vehicle stolen to police that morning. She told police that she kept a spare key in her vehicle’s console. On December 2, 2019, police recovered the vehicle after a collision, roughly 120 km from where Ms. Anderson lives.

16.   In an agreed statement of facts, ICBC agreed that “the parties disagree as to whether the applicant has proven to a civil standard that the theft occurred.” ICBC’s submissions are brief and do not explain whether or why it considers the theft unproved. In ICBC’s June 4, 2020 letter informing Ms. Anderson that it was denying coverage, ICBC did not suggest the theft was unproved. Based on Ms. Anderson’s description of the events, the police reports, and the transcripts ICBC provided, I find on a balance of probabilities that Ms. Anderson’s vehicle was stolen.

17.   The burden now shifts to ICBC to prove that Ms. Anderson forfeited her insurance coverage by making a wilfully false statement about the claim. Section 75(1)(c) of the IVA says that if the insured person makes a wilfully false statement with respect to the claim, the claim is invalid and the insured person’s right to insurance money under the contract is forfeited.

18.   In order to establish that Ms. Anderson has forfeited her coverage, ICBC must prove three things: 1) Ms. Anderson made a false statement about the claim, 2) the false statement was made wilfully, and 3) the wilfully false statement was material: Inland Kenworth Ltd. v. Commonwealth Insurance Company (1990), 1990 CanLII (BC CA).

19.   ICBC did not describe or identify Ms. Anderson’s wilfully false statement in its submissions, nor in its June 4, 2020 denial letter. From ICBC’s file notes and a legal opinion in evidence I have determined that ICBC relies on 2 statements. One statement was about Ms. Anderson’s location at the time of the theft, and the other was about the location of the vehicle’s keys.

20.   ICBC provided a transcript from Ms. Anderson’s December 1, 2019 call to ICBC’s Dial-a-Claim Centre. In that call, Ms. Anderson said on November 30 she left her car parked on the street in front of RR’s home on Reid Street. She said she discovered it missing when she took a taxi to RR’s home that morning.

21.   ICBC provided a transcript of Ms. Anderson’s December 5, 2019 telephone interview with her adjuster, SJ. In that interview, Ms. Anderson said she took a taxi from RR’s home to her home around 10:50 p.m. because she had been drinking. She again said she discovered her vehicle was missing the morning of December 1 when she returned to RR’s home in a taxi. Ms. Anderson further said she had 2 keys for the vehicle, and that she had one but did not know where the other one was. She said she did not recall when she last saw the other key.

22.   ICBC provided a transcript of Ms. Anderson’s December 19, 2019 interview with a Special Investigation Unit (SIU) investigator, JW. In this interview, Ms. Anderson told what she says, and I find, is the truthful version of events. Ms. Anderson told JW the second key was in a bag in her trunk. She told JW that she had incorrectly told the police that the key was in her console. I find nothing turns on this, as it appears ICBC takes issue not with the key’s location but with Ms. Anderson’s earlier statement that she did not recall when she last saw the second key.

23.   Ms. Anderson also told JW that the night the vehicle was stolen she did not go home, and rather stayed overnight in RR’s guest bedroom. She explained that she was untruthful with the adjuster because the adjuster phoned her at work where she did not have privacy. She had a boyfriend at the time and did not want her colleagues to know that she spent the night at RR’s home.

24.   I acknowledge Ms. Anderson’s explanation that she did not want her boyfriend or others to know she had spent the night at RR’s home. I also acknowledge her submission that it did not occur to her to reschedule the call when she was able to speak in private. However, I find she still made the false statement about where she was wilfully – that is, intentionally or deliberately. As well, Ms. Anderson made the same false statement to the Dial-a-Claim representative, whom she called from home on December 1. As Ms. Anderson was at home, there was no fear of anyone overhearing her story. Ms. Anderson says she was untruthful at that time because she knew the statement would go to the adjuster and that her ICBC adjuster would be local to Ms. Anderson’s city. Even accepting that to be true, I still find she made the untrue statement intentionally.

25.   I also acknowledge Ms. Anderson’s explanation that she began to second-guess the key’s location when speaking to SJ. However, she had previously correctly told police it was in her vehicle. So, I find the false statement about the key’s location was also made wilfully.

26.   The remaining issue is materiality. In the leading case Inland Kenworth (cited above), the BC Court of Appeal said a false statement is material if it “is capable of affecting the mind of the insurer either in the management of the claim or in deciding to pay it.”

27.   Ms. Anderson argues that her false statement was not material. She relies on Brown v. ICBC, 2002 CanLII BCSC 1127. That case was overturned on appeal on the finding of materiality and so does not assist Ms. Anderson.

28.   The facts in this case are similar to those in St. Dennis (Estate of) v. Insurance Corp. of British Columbia, 1999 BCCA 20. In St. Dennis, the plaintiff reported a vehicle stolen and falsely reported that another person had another set of keys, because the plaintiff thought his claim would be denied if he admitted he left his spare keys in the glove compartment. The court ruled that the false statement was material in that it affected how the investigation was conducted. 

29.   Here, Ms. Anderson initially reported that she did not recall when she last saw her second key, but she knew it was in the vehicle. She also falsely reported that she was not at RR’s home where the vehicle was parked when the theft occurred. I find the second key’s location and Ms. Anderson’s whereabouts at the time of the theft are both important elements of the ensuing investigation. They both go to the core issues of whether and how the vehicle was stolen and driven. ICBC is not required to show actual prejudice or that the investigation would have proceeded differently – it must only show that the false statement was capable of affecting ICBC’s investigation.

30.   I find ICBC has met its burden to prove that it properly denied Ms. Anderson’s insurance claim under Section 75(1)(c) of the IVA. It follows that I dismiss Ms. Anderson’s CRT claim because her right to any insurance money under the insurance contract is forfeited.

31.   Under section 49 of the CRTA and CRT rules, as Ms. Anderson was unsuccessful, I find she is not entitled to reimbursement of CRT fees.

ORDER

32.   I dismiss Ms. Anderson’s claim and this dispute.