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Court of Appeal Upholds Damages Against ICBC for “Serious Breach” of Customer Privacy

 

Reasons for judgement were published this week by the BC Court of Appeal upholding a damages assessment against ICBC in a privacy breach class action lawsuit.

In the case (Insurance Corporation of British Columbia v. Arian ICBC employee  “accessed the private information of 78 ICBC policy holders for nefarious purposes. She sold the information of at least 45 policy holders to criminals. Between 2011 and 2012, 13 of these 45 policy holders were targeted in arson and shooting attacks.”

Individuals impacted by this serious breach are seeking compensation for their losses.  Separate from provable losses the trial court awarded each impacted individual $15,000 in damages for breach of section 1 of BC’s Privacy Act which reads as follows:

It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

ICBC appealed arguing that absent real harm from the breach only nominal damages could be awarded and $15,000 is not nominal.  The Court of Appeal disagreed.  The court highlighted this was a serious breach and the Privacy Act does not require proof of damage.  Given the intentional and serious breach of privacy the trial judge properly exercised their discretion.  In upholding the award the Court provided the following comments:

[65]         As noted above, the judge observed that, on ICBC’s proposed approach to assessing damages, proof of significant harm would be required to make an action “financially worth pursuing,” and much of the benefit of a class proceeding would also be negated: RFJ at para. 29. I read these comments as referring to the general purposes of the Privacy Act as reflected in the guidance of this Court and the Supreme Court of Canada. Limiting recovery to nominal damages in the circumstances of this case would, as I have explained, undermine these purposes.

[66]         As is evident from the statement of this Court in G.D. quoted above, there is support for the view that deterrence is a legitimate purpose for awarding damages under s. 1 of the Privacy Act. However, this is not to say damages must be larger than they would otherwise be simply to make such claims financially worthwhile. Damages must still be reasonably responsive to the actual harm done to the privacy interests of the plaintiff. I do not accept, however, that the judge based his assessment of damages, even in part, on the need to ensure such claims were “financially worth pursuing”. That was simply his reason for rejecting the general rule proposed by ICBC that only nominal damages should be available in the circumstances of the case.

[67]         The actual basis for the judge’s assessment of damages is clear. His assessment was grounded in the specific circumstances of the case before him. In the concluding paragraphs of his analysis, he explicitly set out the circumstances of the case that, in his view, weighed in favour of the damage award he ultimately made:

[34]      The breach of privacy in this case was more serious than the one in Jones. It was motivated by personal financial gain and resulted in distribution of information to third parties, including criminals. Its impact was not limited to a single individual, and the full extent of the distribution of information and the risks it created at the time will never be known. I find those factors outweigh the mitigating factor that some class members may have been unaware of what occurred.

[35]      In the circumstances of this case, based on the severity of the breach, I find an award of $15,000 per class member falls within the category of a modest or nominal award, and I assess damages in that amount.

[Emphasis added.]

[68]         Following the guidance of this Court and the Court in Jones, the judge correctly concluded more than nominal damages were available to compensate and vindicate the serious breach of the plaintiff’s privacy rights. The judge relied on two of the factors specifically set out in both Jones and the Manitoba statute, being the nature and seriousness of the breach and the post-breach conduct of the defendant. Because these factors were based on the conduct of the defendant, and the proven circumstances of the breach itself, they were common to all class members and were accordingly an appropriate basis for the assessment of aggregate damages.

[69]         Damage awards are entitled to significant deference, and the parties do not take issue with the quantum of the aggregate damages awarded. There is therefore no reason to closely engage with the chambers judge’s quantum assessment. I will only say, while $15,000 is likely towards the upper end of the appropriate range for damages in cases of this sort, the seriousness of the breach supports an elevated baseline award. ICBC is vicariously liable for its employee’s wilful and flagrant disregard of the plaintiff’s privacy. This is not a case where the breach resulted from a hack, or an innocent mistake. It is unnecessary to determine here what kinds of aggregate damages might be appropriate under such circumstances.

[70]         The aggregate damages award made by the judge provides compensation for the injury to the class members’ privacy interests and is responsive to the seriousness of the defendant’s misconduct. It provides no compensation for any mental distress, upset, property damage, loss of income, loss of opportunity, or any other kind of consequential harm that may have been suffered by the members of the plaintiff class.

[71]         It remains open, at the individual issues phase of the litigation, for any class member who has suffered consequential pecuniary or non-pecuniary harm beyond the simple fact of the breach to prove that loss and have appropriate compensation assessed. Of course, at that stage, the judge must be careful to ensure there is no double compensation.

[72]         The only questions left to be addressed are what kinds of purely consequential harms the class members have suffered, and what damages are required to make them whole.

Proposed ICBC Class Action for Breach of Privacy

On October 21, 2024 our firm filed a class action lawsuit against the Insurance Corporation of British Columbia. The lawsuit alleges past and ongoing misuse of the CL237A – Authorization to Provide Medical Information to obtain or attempt to obtain personal and private medical information of persons submitting claims for accident benefits when it is not necessary. The plaintiff brought this lawsuit on behalf of all persons who submitted claims for accident benefits to ICBC for injuries sustained in motor vehicle accidents after May 1, 2021 and who either had private medical records obtained by ICBC, or had their access to accident benefits threatened for declining to sign a CL237A – Authorization to Provide Medical Information to ICBC.

The proposed representative plaintiff was injured in a motor vehicle in October of 2023 and made a claim to ICBC for accident benefits. ICBC told her that she had to sign a CL237A authorization, which they used to obtain clinical records containing her medical history from prior and subsequent to the date of the motor vehicle accident. She was not advised of the nature or extent of records ICBC intended to obtain or provided the opportunity to ensure that only relevant information would be shared. As a result, ICBC had obtained irrelevant, personal, and private medical information about the plaintiff viewable by any non-medical professional assisting with her claim. She revoked the authorization after discovering the unfettered access it provided to ICBC with respect to her medical history. Without informing the plaintiff of their intention to do so, ICBC attempted to use the revoked CL237A authorization to obtain further clinical records.  After confirming that they did not have a valid authorization, ICBC threatened to suspend or delay her access to accident benefits if she did not authorize ICBC to access her medical history.

The “No-Fault” Insurance scheme legislated by the Province of British Columbia, formally known as “Enhanced Care”, came into effect in May 1, 2021. The scheme substantially barred injured victims from bringing legal action for their injuries and discouraged them from obtaining legal advice concerning their rights and obligations under the new legislation. As the sole provider of the basic auto insurance coverage in British Columbia, ICBC has experienced a significant increase in their power over injured claimants. Although the government legislated a duty on ICBC to inform and educate injured claimants of their rights and obligations, the Notice of Civil Claim alleges that ICBC frequently and routinely fails to fulfill this duty, overstates their statutory authority for access to medical records, and violates the privacy of injured claimants.

If you’ve been impacted by these practices you can share your experience with us here.

MacIsaac & Company Expands Into Family Law

I’m excited to announce that starting February 1, 2025 MacIsaac & Company’s services are expanding to include family law.

Stuart Wright will be joining the firm and growing and overseeing this practice area.

Stuart practices exclusively in family law and is available to serve clients anywhere in British Columbia. He focuses on individuals looking for a separation or divorce and offers a range of tools to get there. Stuart regularly deals with cases that involve:

  • spousal support
  • separation agreements
  • division of complicated finances
  • difficult personalities
  • stubborn parenting conflicts
  • good people doing their best

Even high-conflict situations can usually be transformed by personalized advice and a well-prepared mediation. When needed, Stuart has achieved successful outcomes for clients in Provincial Court and Supreme Court. 

Contact us today if you need assistance with any of the above.

BC Conservatives Promise to “end ICBC’s monopoly” and Restore Rights For Crash Victims

Its election season. And promises are being made.

The BC NDP have stripped crash victims of their rights.  There are many horror stories of people maimed, disabled and even killed by negligent drivers being stripped of the right to sue and lacking the ability to seek proper compensation for their financial and other losses following such tragedy.

The BC Conservative Party has gone on record saying they will end ICBC’s monopoly and restore rights for victims with life altering injuries.

Their full position reads as follows.

I have reached out to the Conservative party via X requesting clarity on what they mean by their promise to

make sure anyone with life altering injuries has the right to representation and the ability to fight for the support they need”.

I will update this post should they reply.

Reporter Rob Shaw states notes as follows:

No fault insurance will remain in place, along with caps on minor soft tissue injuries, but those with “life altering injuries” will be exempted and allowed to sue for compensation, according to Conservative policy

https://x.com/RobShaw_BC/status/184162803274793372020

$5,000 In Damages Awarded For “Reprehensible and Disgusting” Stealing of Intimate Images

BC’s new Intimate Images Protection Act makes it relatively quick and easy to sue someone who has your intimate images without your consent (or even with your withdrawn consent).

A recent case shows that a victim of wrongdoing under the Act should choose wisely which forum they sue in.  While the online Civil Resolution Tribunal can process such claims faster and cheaper than traditional court, the damages limit in the CRT is at $5,000 and such cases can be worth far more.  Reasons for decision were published this week by the CRT commenting on this.

In the recent case (JT v. Sowinski) the applicant had intimate images stored on her phone.  The respondent accessed these without permission and sent them to himself.  The applicant confronted him and he went so far as to threaten to post them on social media.

In awarding the maximum damages allowable while making it clear that more damages are warranted the CRT provided the following reasons summarizing the wrongdoing and assessment of damages:

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Intimate Image Claims Worth “Considerably More” Than $5,000

The first precedent has been handed down invoking BC’s new Intimate Images Protection Act.  In short the legislation makes it unlawful to share intimate images of another person without their consent.  Even if you initially obtained the images consensually.  The law is broad in its reach.

The law allows civil claims to be prosecuted in the Civil Resolution Tribunal, Provincial Court, or Supreme Court.  Choosing the CRT is faster, cheaper and easier.  But the CRT has a limit of $5,000 in damages in these types of claims.  In today’s case the CRT found that these cases, once liability is established, are worth ‘considerably more’ than their limit so awarding the $5,000 seems to be a default damage assessment in that venue.

In the recent case (BDS v. MW) the applicant shared semi nude images of a sexualized nature with the respondent.  The respondant shared these with another without the applicant’s consent.  The key facts and findings were as follows where the CRT provided some worthwhile comments on the definition of what constitutes an intimate image along with damage assessments:

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ICBC Ordered To Pay Over $400,000 After Denying Widow Death Benefits Following Fatal Crash

Reasons for decision were published last week by the Civil Resolution Tribunal ordering ICBC to pay over $400,000 in benefits and interest after finding they wrongly denied a widow spousal death benefits following a fatal collision.

In the recent case (Dion v. ICBC) the Applicant’s spouse died in a motorcycle collision in 2022.  The Applicant applied for the spousal death benefit but ICBC refused to pay arguing that they were living separately at the time of the crash and therefore no longer spouses as defined in the applicable regulation.

Vic Chair Eric Regehr found that ICBC was wrong in denying the benefit and found that the Applicant was still the Defendant’s spouse despite them living separately.  In doing so the Tribunal provided the following reasons noting living together is not a requirement under section 45(b) of the regulation:

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BC Supreme Court Judge “Unable to Presume That ICBC Will Conduct Itself Honourably Moving Forward”

Pointed reasons for judgment released this week by the BC Supreme Court showed just how poorly ICBC fulfilled their obligations to an individual they insured despite making promises to the court that they will be fair.  Madam Justice Murray noted she is “unable to presume that ICBC will conduct itself honourably moving forward“.

Here is the context. In the recent case (Taylor v. Peters) the Plaintiff suffered serious injuries in a 2017 crash.  She was not at fault.  Back then BC crash victims still enjoyed the right to sue for proper compensation.  At trial the plaintiff was awarded $407,000 in total damages.  ICBC, the insurer for the at fault driver, could deduct from the award any money the Plaintiff could receive from them directly as a Part 7 benefit.  ICBC asked the court to reduce the award by over $141,000 arguing they “will irrevocably, unequivocally, and unconditionally agree to pay the plaintiff, for the items awarded by the court in the Cost of Future Care section in the Reasons for Judgment“.  They filed an affidavit with the court making this promise.

Despite this promise ICBC time and again failed to pay the Plaintiff benefits the court found were needed as future care costs.  ICBC’s own lawyer admitted to the court “that ICBC has failed to handle Ms. Taylor’s claim appropriately but submits that starting now they will do so“.  The court had no time for this promise.  Instead the court found that ICBC’s past actions were the best predictions of their future behavior and refused to give the Defendant/ICBC the substantial deduction from the award.  In doing so Madam Justice Murray provided the following pointed comments:

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Help Needed After Tragic Brain Injury From BC Kickboxing Bout

 

This week CBC covered a sad story of a young PhD student studying at UBC who suffered a likely permanent brain injury from what was advertised as a ‘light’ and ‘controlled’ contact kickboxing bout which was hosted at Simon Fraser University.

Zhenhuan Lei is likely in a permanent vegetative state.  His mom, Ying Li, has been appointed his committee and commenced litigation.

Our firm is representing the family in this litigation and I will not comment publicly on the case.

That said I am happy the case has received media attention as Zhenhuan Lei’s medical needs are profound.

We have started a GoFundMe which already has been integral in providing assistance to the family and helped them cover part of the medical flight to bring Zhenhuan Lei back to China.  That flight alone cost $100,000 of which Ying Li had to pay $30,000.

If you can donate to the fundraiser your assistance is greatly appreciated.  If you can take a moment to share it that too is appreciated.

The GoFundMe can be found here.

_________________________________________

Update

Ying Li has released the below public statement. I reproduce it here in full so you can hear from her directly and know this is who you have helped with your contributions. (please note this statement is from a week ago and he has since been successfully flown back to China).

Thank you everyone for all of your support. It is very much appreciated.
_____________________________

My son has been studying and living in Canada for five years. He is a cheerful, handsome, and kind young man who loves life. He diligently studies and works, often conducting experiments until late at night. He once told me that life only affords a few chances.

Suddenly, one morning, a news struck my family. In China, I received a call from a Canadian hospital informing me that my son was in a severe coma and needed surgery to avoid losing his life. Even with the surgery, there was no guarantee of saving him. They sought my decision on whether to proceed with the operation. Tearfully, I consented, desperately hoping for his survival. The surgery was successful, thanks to the exceptional skills of Canadian doctors, the meticulous care of the nurses, and his resilient vitality. He faced numerous dangers, overcame many obstacles, and reached his current state.

Ten days after the incident, with the assistance of the Chinese embassy and the Canadian immigration office, I arrived in Canada. It has been four months, and I feel as if I have experienced a death and am physically and mentally exhausted. I can’t comprehend how a well-behaved child, who participated in an entertainment competition, had his life changed so drastically. A promising life of a future scientist, an ambitious young man, has now turned into lying in a hospital bed every day and staring at the ceiling. I don’t know what he’s thinking, whether he harbors resentment, regrets, or frustration about participating in that life-altering competition.

After calming down, I must face all the problems that arose from this incident. My son grew up in a single-parent household, and he is my only child. All my efforts have been devoted to him, and raising him to this point has not been easy. Just as he was about to complete his Ph.D., hopes were shattered. Now, I have to embark on another journey, caring for him in the latter part of his life. Medical expenses, rehabilitation costs, family doctor fees, nursing expenses, transportation back to China, and more are looming in front of me. However, I don’t know how long I can accompany him. What will happen to him in the future, and who will take care of him? Unfortunately, amidst this misfortune, I am fortunate to have encountered a good lawyer named Erik Magraken, who has sincerely and significantly assisted me. I am deeply thankful for his help and the generous contributions from many kind-hearted people. My heart is full of gratitude.

Now, my concern is the treatment cost if he returns to China. Hiring someone costs 300 yuan per day, totaling 9,000 yuan per month. I don’t have that much money, so I can only take care of him myself. My own health is not good, and I don’t know how long I can care for him. I worry about what will happen if I’m not around, who will take care of him, and I am filled with daily anxiety and despair.

At this point, I just want to return to China as soon as possible for hyperbaric oxygen therapy. Perhaps it can help him regain some abilities. That is the most important thing, even if it’s just a slight improvement, such as being able to eat on his own. Watching him every day, I feel very sad. I am also reaching my limit. I want to go to the emergency room, but I am reluctant to spend money. I need to save money for his plane ticket to return to China for treatment, including hyperbaric oxygen therapy, skull repair surgery, stem cells, and more. Any treatment that might help him, such as acupuncture, massage, and traditional Chinese medicine, has shown benefits for him. So now, not only do I worry about his illness, but I also worry about money. Even if the plane fare is resolved, I still have to worry about the cost of treatment in China. It’s mentally and physically exhausting.

 

We Are Hiring!

MacIsaac & Company is looking for an associate lawyer to join our established litigation practice in Victoria, BC.  Our Victoria office is located on the waterfront at Fisherman’s Wharf in historic James Bay, close to downtown.  We offer a casual, team-oriented and collaborative working environment.

The practice is hands-on by nature and requires some time in the office.  A hybrid work model could be considered.

Three or more years of qualified litigation experience in BC is essential.  Our firm has a large existing caseload and a strong network with lawyers throughout BC and Alberta.  The position involves overseeing direct conduct of a mature caseload of active litigation files, and a willingness to further expand the practice is always encouraged and supported by the firm.

While we are seeking to fill a full-time permanent position, practitioners who are interested in working as an associate counsel on an annual contract basis are invited to apply.

              Compensation:

$100,000 – $175,000 yearly, depending on experience

Apply confidentially using the online form at the bottom of the page here, or send your resume in confidence to: Victoria@macisaacandcompany.com