ICBC Ordered to Provide Particulars in Support of "Wilfully False Statement" Pleading
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, ordering ICBC to provide particulars in support of an allegation that the Plaintiff provided a wilfully false statement.
In last week’s case (Biedermann v. ICBC) the Plaintiff was sued for damages following three motor vehicle collisions. ICBC refused to indemnify the Plaintiff arguing that he was in breach of his insurance by making a wilfully false statement.
The Plaintiff sued ICBC for coverage. ICBC denied liability and repeated the ‘willfully false statement‘ allegation in their pleadings. The Plaintiff asked for particulars of this allegation but ICBC refused to provide these. Ultimately the Plaintiff brought a successful application to compel ICBC to provide particulars. In making the order Master Bouck provided the following helpful reasons:
[16] The plaintiff relies on Rule 3-7(22) of the Supreme Court Civil Rules (“SCCR”) which provides that the court may order a party to serve further and better particulars of a matter stated in a pleading (my emphasis).
[17] In its response, the defendant helpfully outlines the legal principles relevant to the application and interpretation of this Rule.
[18] One of the stated purposes for ordering particulars is to ensure that the “real issues between the parties” are brought “fairly forward without surprise”: Cansulex Ltd. v. Perry, 1982 CarswellBC (C.A.) at para. 16. The six objectives of an order for particulars are said to be:
· to inform the other side of the nature of the case they have to meet as distinguished from the mode in which the case is to be proved;
· to prevent the other side from being taken by surprise at trial;
· to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;
· to limit the generality of the pleadings;
· to limit and decide the issues to be tried, and as to which discovery is required; and
· to tie the hands of the party so that he cannot without leave go into any matters not included.
Cansulex Ltd. v. Perry at para. 15
[19] These factors are consistent with the present objectives of the SCCR in having a matter determined in a proportionate, just, speedy and inexpensive manner: Rule 1-3…
[21] After reviewing the pleadings and relevant authorities, I have concluded that the Response to Civil Claim does not provide sufficient particularity to meet the objectives of both the SCCRand those outlined by the court in Cansulex.
[22] Neither the Response to Civil Claim nor the response to this application identify the nature of the “wilfully false statement”. The Response separately pleads (and the defendant discloses in its affidavit material) that the plaintiff may have failed to update both the territory and rating for the Volkswagen Golf and also misrepresented the principal operator. Those details provide some information to the plaintiff as to the basis for denying the sought after insurance coverage. However, it is not at all clear from the Response whether these documents represent the “wilfully false statement” or whether the defence is relying on some other written or oral statement or representation given by the plaintiff.
[23] Nor does the Response address in any particularity the basis on which coverage is denied for the July 2008 accident. The Response simply says that Mr. Biedermann was no longer the legal owner of the vehicle involved in the accident.
[24] What is being sought by the plaintiff is not so much evidence which might support a finding that Mr. Biedermann made a statement or statements which were “wilfully false”, but rather identification of what that “statement or representation” might be. Is it an insurance application form; a post-accident statement or representation; or some other form of communication? Without these particulars, the plaintiff (and the court) is left to guess whether such a statement or representation even exists…
[26] The defence has separately pled s. 75 (a) (ii) with respect to the 2009 accidents. However, s. 75 (c) is so broadly worded that the plaintiff (and the court) is unable to identify the nature of the impugned statement of misrepresentation with respect to any of the accidents.
[27] Accordingly, the order sought by the plaintiff is granted. Costs of the application will be to the plaintiff in the cause.