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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘cell phone records’

ICBC Vehicle Theft Claim Denied With Help of Damaging Cell Phone Records

September 25th, 2018

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a lawsuit seeking insurance coverage for vehicle theft.

In the recent case (Winterbottom v. ICBC) the Plaintiff owned a Ford F150 which he reported stolen.  It was located a few days later in a remote location and was destroyed by fire.

ICBC denied coverage to the Plaintiff and he sued.  In dismissing the lawsuit the Court noted that cell phone records placed the Plaintiff in the vicinity where the truck was ultimately recovered.  Mr. Justice Blok provided the following reasons highlighting the utility of these records in dismissing the claim:

[113]     Cell phone calls involving Mr. Winterbottom’s phone were the central focus of the case.  At the risk of repetition, I summarize these as follows:

a)    Six calls (three incoming, three outgoing) made between 6:08 pm and 7:21 pm, all of which utilized a cell phone tower located at Ross Road, west of Abbotsford.  This suggests that Mr. Winterbottom’s phone was located south of the Fraser River, and not at his residence, which is where he said he was located at the time;

b)    Two incoming calls, both from Mr. Waardenburg’s phone, made at 9:32 pm and 9:48 pm, which utilized a north-side Sumas Mountain cell phone tower that serviced the very area where the burned-out Truck was found;

c)     An outgoing call to “Todd” at 9:49 pm, which involved a hand-off from the north-side Sumas Mountain tower to a tower located near the Mission Bridge, indicating a movement of the cell phone from east to west.  This would be consistent, for example, with the movement of the phone along Lougheed Highway on the north side of the Fraser River;

d)    Nine calls made between 10:01 pm on October 21 and 12:25 am on October 22, which utilized a cell tower site west of Mission, a location consistent with Mr. Winterbottom being located either at the Mission Springs pub or at his home;

e)    One call to Mr. Nygaard-Peterson made at 12:25 am on October 22 that involved a hand-off from the west Mission cell phone tower to an Abbotsford-area cell phone tower, indicating southbound movement of the phone, plus a second call at 12:46 am that utilized the second tower only.  These calls suggest Mr. Winterbottom was not located at his home or at the pub; and

f)      Three calls made in the morning of October 22, beginning at 8:39 am.  The first call involved a hand-off between two Abbotsford-area cell towers, indicating either movement of the phone or a call made in an overlap area.  The second call utilized the Ross Road cell tower west of Abbotsford.  A third call utilized the Ross Road tower and then handed the call off to a cell tower near Sumas Mountain, thus indicating a west to east movement of the cell phone.  In all cases, the calls are not consistent with Mr. Winterbottom being located at his home.

[114]     Neither Mr. Winterbottom nor Mr. Nygaard-Peterson had any explanation why they would have been phoning one another during the time they had said both of them were located at the Mission Spring pub, although Mr. Nygaard-Peterson speculated that he might have lost his phone or stepped outside.  Mr. Waardenburg had no recollection of the calls and had no idea why he would have been in phone contact with Mr. Winterbottom so often during the relevant time frame.  Both Mr. Winterbottom and Mr. Nygaard-Peterson denied being anywhere other than the Mission Springs pub or the Winterbottom home that night.

[115]     I conclude that the cell phone and cell tower evidence given by Mr. Funk is reasonably reliable and accurate.  His evidence was not undermined in cross-examination.  The plaintiff’s assertion that all cell towers utilized by Mr. Winterbottom’s cell phone were within their standard 35 km range in relation to the pub or the Winterbottom residence ignores Mr. Funk’s evidence that the 35 km figure is merely the licenced range and does not reflect the actual range or coverage.  Mr. Funk’s extensive field testing of actual coverages satisfies me that his evidence can be reasonably relied upon to determine general areas where a cell phone was located or where a cell phone was not located.  While there may be room for occasional aberrations due to topology or physical barriers, etc., for the large number of calls involved in this case to be inaccurate would mean that there would have to be aberrations in almost every instance.  I am satisfied from Mr. Funk’s evidence that this is unlikely in the extreme.

[116]     I agree with the observation of plaintiff’s counsel that the plaintiff appeared to give his evidence in a forthright manner.  So did his witnesses, although their evidence was generally to the effect that they were too drunk to remember much.  There were, however, problems with their evidence.  For example, there was no consistency between the plaintiff and his witnesses about how he got home from the pub.  I agree that those particular inconsistencies might be explained by extreme drunkenness, but the cell phone calls are not so easily explained away.  There is no explanation why the plaintiff and Mr. Nygaard-Peterson were phoning one another when, according to their evidence, they were both at the pub or, later, at the Winterbottom residence.  Mr. Winterbottom agreed he woke up at 10 am the next morning, but he could not explain how that testimony reconciled with the five cell phone calls made from his phone between 8:39 am and 9:43 am that morning other than to say he did not remember them.  Critically, his testimony about where he was located contradicted with the evidence of his cell phone location at various points that night and the next morning.  None of this evidence adds up.

[117]     The cell phone evidence is reliable and cogent, and it persuades me that Mr. Winterbottom was not where he said he was that night.  It also indicates that at one point in the evening Mr. Winterbottom’s cell phone utilized a cell tower that serviced the same rural area where the burned-out Truck was found.  Perhaps most importantly, the cell phone and cell tower evidence persuades me that Mr. Winterbottom’s evidence cannot be relied upon.

[118]      In a case such as this, the burden is first on the insured to show a loss falling within the scope of the insurance coverage, which here is theft.  The only evidence of theft comes from Mr. Winterbottom.  I conclude that there are so many difficulties with the evidence of Mr. Winterbottom, centred on the discrepancies between his testimony about where he was compared to the cell phone location evidence, that I cannot rely on his evidence to prove that a theft occurred.


More on ICBC Injury Claims and Pre Trial Discovery – XFD's and Requests for Particulars

November 3rd, 2009

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry dealing with 2 types of pre-trial discovery procedures utilized in the Supreme Court, the scope of examination for discovery questions and requests for particulars.

In today’s case (Gulamani v. Chandra) the Plaintiff alleged injury from 2 motor vehicle collisions some 10 years apart.  The Defendant put together a rather ‘boilerplate’ statement of defence which alleged, amongst other things that the Plaintiff was injured in previous and/or subsequent incidents, that the Plaintiff failed to follow medical advice, that the Plaintiff failed to take appropriate medications and that the plaintiff  did not return to work when she reasonably could have.

The Plaintiff’s lawyer brought an application that the Defence lawyer provide better particulars of these allegations (these types of boilerplate allegations are very typical in Statements of Defence filed in BC Personal Injury Actions).

In granting the Plaintiff’s request for further particulars Madam Justice Arnold-Bailey summarized and applied the law as follows:

[27] The court has the discretion, under Rule 19(16), to order a party to deliver better and further particulars of a matter stated in a pleading, provided that the party seeking that order has demanded them in writing from the other party, as required by Rule 19(17).

[28] It is clear from the case law that the decision to order particulars is extremely discretionary and heavily fact dependent.

[29] Considering the cases provided by counsel on this issue, my view is that the request for particulars is very similar to the previously granted request for further particulars made by counsel for the plaintiff of the Chandra defendants.  Here, as in that motion, what has been provided is so broadly worded and generic that it tells the plaintiff virtually nothing as to the true nature of the case she has to meet with regards to her alleged congenital defects or diseases prior to or post-accident, or regarding aspects of her alleged failure to mitigate.  Such broadly worded statements are particularly problematic in the present case because of the plaintiff’s extensive history of medical treatment over the past 12 years, since the injuries allegedly sustained in the first accident are said to overlap with the injuries sustained in the second accident with the defendant.

[30] I do not find the decisions in Fireside or Hoy provided by counsel for the defendant to be of assistance in this case.  While they are both examples of cases in which particulars were not ordered, they are both easily distinguishable from the case at bar.  Hoy deals with specifics on standard of care in a class action matter, where significant particulars had already been provided.  Fireside was a case where more than a generic particular had already been provided to the plaintiff.  In the case at bar there have been no particulars provided at all with regard to the broad claims contained in the statement of defence.

[31] The Court of Appeal clearly stated the function of particulars in Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 (C.A.) [Cansulex], where Lambert J.A., for the court, described their use at para. 15:

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

(2)        to prevent the other side from being taken by surprise at the trial;

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

(4)        to limit the generality of the pleadings;

(5)        to limit and decide the issues to be tried, and as to which discovery is required; and

(6)        to tie the hands of the party so that he cannot without leave go into any matters not to be included.

[32] I now turn to the specific point set out in para. 15 of Cansulex that particulars are designed “to inform the other side of the nature of the case they have to meet”.  In my view, the statements made in the statement of defence are not sufficient to enable the plaintiff to know the case she must meet.

[33] Considering further the points contained in para. 15 of Cansulex, in this case I find that if further and better particulars are not provided by the defendant as to how to the plaintiff failed to mitigate her losses generally as claimed and with regards to her alleged failing to take reasonable steps to return to work, failing to follow medical advice and failing to follow exercise advice, then if there is any substance to these claims, it is likely she will be taken by surprise at trial.  The same may be said with regards to any other incidents or congenital defects or diseases that the defendant alleges caused the plaintiff’s injuries.

[34] I turn to additional points set out at para. 15 of Cansulex, requiring that the particulars must “enable the other side to know what evidence they ought to be prepared with and to prepare for trial”.  Based on what has been provided to date to the plaintiff, I do not see how proper trial preparation could be done.

[35] With regards to the further points from para. 15 of Cansulex regarding the purpose of particulars, “to limit and generality of pleadings” and “to limit and decide the issues to be tried”, once apprised of her alleged failure to mitigate the plaintiff will be able to take steps to collect the relevant evidence with regard to the specific failures or conduct alleged.  As indicated, the alleged overlap between the plaintiff’s injuries from the first accident in June 1997 to the alleged injuries from the second accident in July 2007, add considerable additional factual complexity.

[36] Regarding the final point in Cansulex at para. 15, that particulars serve to “tie the hands of the party so he cannot, without leave, go into any matters not included”, I find that there is considerable benefit to all parties in these actions to be tried together in the upcoming 30 day trial to properly identify and limit such claims.

[37] When considering an application for the delivery of further and better particulars, Bouck J. made a comment in Cominco Ltd. v. Westinghouse Can. Ltd. (1978), 6 B.C.L.R. 25 at 27 (S.C.). at paras. 7-8, which I consider to be relevant to the present application, namely:

Occasionally parties can get caught up in the fascination of the interlocutory process and lose sight of the fact that some day the matter must go to trial even though a “perfect” framework does not exist for its presentation.  Sometimes as well one side or the other is merely replying to the overzealousness of his opponent and motions or their opposition are meant to let one another know it will be a long hard fight.

I mean no criticism of counsel by these remarks.  They are honestly trying to pursue every recourse for the benefit of their respective clients.  That is their right and their duty.

[38] For these reasons the plaintiff’s application for further particulars is granted.

The second pre-trial procedure dealt with in today’s case was the scope of examination for discovery questions.  On examination the Plaintiff’s lawyer asked the Defendant to provide his cell phone records (to help prove or disprove that he was on the phone at the moment of impact), to provide the names of “liability and damage witnesses and contact information”.  In holding that these are proper discovery questions Madam Justice Arnold Bailey applied and summarize the law as follows:

[39] With respect to question (a) and the demand for cellular phone records, Rule 27(20) states that “a person to be examined for discovery… shall produce for inspection on the examination all documents in his or her possession or control not privileged, relating to the matters in question in the action”.

[40] Liability is at issue and the potential for the cellular phone records to indicate whether the defendant was using his phone at the time of the accident does exist.  Although not referred to any authorities by counsel, I note that there are several cases where cellular phone records have been referred to as to whether a person was using the cellular phone at the time of the accident.  One such case is Abay v. Keung, 2006 BCSC 1236, in which the plaintiff testified that the defendant had been using a cellular phone at the time of the accident, and the defendant denied doing so.  The defendant there had also refused to divulge his cellular phone records on examination for discovery.  There is no record of a demand being made for those records.  In that case, Cohen J. found, at para. 73, “although I find that the defendant had a cell phone in his vehicle, I cannot conclude that the defendant was talking on the cell phone at the time of the collision, as there is strongly conflicting evidence on this point”.  Cohen J. did not comment on the lack of records as affecting credibility or believability of the defendant.

[41] Conversely, in Zubko v. Ezaki, 2002 BCSC 1894, the defendant produced her cellular phone records to prove conclusively that she was not speaking on her phone at the time of the accident, as was alleged by the plaintiff.

[42] While I agree with the submission on behalf of the defendant that the phone records will not necessarily show with certainty whether the defendant was talking on the phone at the time of the accident, it seems that those records are within the scope of Rule 27(20) insofar as they relate to the matters in question in the action, namely liability for the motor vehicle accident.  It is entirely possible that the records will prove to have little weight at trial, but that is irrelevant to what is required by Rule 27(20).  Accordingly, I order the defendant to provide the answers to questions 68 – 71 of the examination for discovery, including providing his cell phone records for the day of the accident.

[43] With regard to question (b) and the names and contact information of liability and damage witness names, I agree with the reasoning in Sovani, at para. 3, where Paris J. held “Rule 27(22) means just what it says, namely, that the names and addresses of such persons must be disclosed if requested and the fact that a person’s knowledge relates only to the issue of damages does not safeguard the names from disclosure”.  Accordingly, I order the defendant to answer question 276 and as posed on p. 63 of the examination for discovery.

Lastly, since this is a case dealing with Civil Procedure, it is my practice to check if this case will remain a useful precedent when the new BC Supreme Court Civil Rules come into effect in July, 2010.  The answer is probably yes as the current Rule 19(16)(17) which the court relied on in its order for further particulars remains intact under the new rules and can be found at Rule 3-7(22).

With respect to the order addressing examinations for discovery, this case relied on Rule 27(20) which remains largely intact under the new Supreme Court Rules and can be found at Rule 7-2(16).  While the new rule seems to have some restrictions to it not present in the current rule the same result should arguably apply as the rule for production of relevant documents at the discovery will continue to apply to “a person for whose immediate benefit an action is..defended” as set out in Rule 7-2(6).