ICBC Privacy Breach Class Action Allowed To Include Claim for Punitive Damages

Source: Erik Magraken BC Injury and ICBC Claims Blog

In the recent case (Ari v. ICBC) ICBC was sued after an employee of theirs passed personal records ICBC kept to “an acquaintance involved in the drug trade” after which a series of attacks were carried out against some of the individuals who had their private information compromised.  The court noted the following background

[2]             A former employee of ICBC, Ms. Candy Elaine Rheaume, for no business purpose, accessed personal information of 78 ICBC customers (“Primary Plaintiffs”) who had been at or near the Justice Institute of British Columbia in New Westminster. The personal information included names, addresses, driver’s license numbers, vehicle descriptions and identification numbers, license plate numbers, and claims histories. Ms. Rheaume then provided the information to an acquaintance involved in the drug trade. She received $25.00 per name provided. She was charged with, and pleaded guilty to, fraudulently obtaining a computer service pursuant to s. 342.1 of the Criminal Code and received a suspended sentence with nine months probation.

[3]             The illegally obtained information was used to target 13 of the Primary Plaintiffs (“Attack Victims”) with vandalism, arson and shootings between April 2011 and January 2012 (“Attacks”). Two people have been found criminally responsible for their involvement in the Attacks. The attackers thought they were targeting police officers solely because the vehicles were parked at or near the Justice Institute.

The Plaintiff succeeded in certifying a class action lawsuit against ICBC on the basis that they should be vicariously liable for the employee’s wrongdoing.  The chambers judge hearing the certification application declined and include all class members the plaintiff sought to have included and also removed the claim for punitive damages.  In finding that punitive damages claims should form part of the proceeding the BC Court of Appeal provided the following reasons:

[29]         Punitive damages may be awarded when misconduct “represents a marked departure from ordinary standards of decent behaviour”: Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 36. Punitive damages may be certified as a common issue in appropriate cases. Rumley v. British Columbia, 2001 SCC 69 at para. 34.

[30]         Rather than consider the past history of breaches of privacy by ICBC employees—the evidence supported that at least 7 employees have been terminated by ICBC between 2008 and 2011 for privacy breaches—the chambers judge considered the steps taken since the breach in this case was discovered. While laudable on ICBC’s part, subsequent conduct is not the sole basis upon which punitive damages are determined. The chambers judge should have accepted as true the allegation that ICBC has a history of employees breaching private information. Instead, she judged the case on the merits on the evidence before her. That was an incorrect approach.

[31]         In my view, the chambers judge erred when she refused to certify punitive damages. There was a basis in fact for the claim based on the information relating to the history of privacy breaches by employees.

[32]         Before us, ICBC asked that if we overturn the failure to certify the issues, we return the case to the chambers judge for the analysis on preferability. This was the approach this Court took in Kirk v. Executive Flight Centre Fuel Services Ltd., 2019 BCCA 111 at para. 151.

[33]         With respect to the punitive damages issue, the chambers judge continued the analysis and concluded that had she not decided that there was no basis in fact for a claim for punitive damages, it would be an appropriate case for certification.

[34]         The chambers judge carefully analyzed the preferability of the issues she did certify. In respect of the Other Residents, her analysis is equally applicable. The common issues that were certified apply equally to the Other Residents. Some of the Other Residents will fall into the subclass.

[35]         A judge has a great deal of discretion to change things to fit the circumstances as a class proceeding progresses. At this point, there having been no discovery, it is my view that the additional classes and common issues are preferable for a class proceeding. I would not refer that issue back to the chambers judge for further consideration as a result of allowing this appeal.

[36]         I would allow the appeal, include the Other Residents as members of the class, and certify the punitive damages issue as a common issue. I would leave the tasks of identifying the broader class and framing the common issue for the chambers judge.

Reasons for judgement were published today by the BC Court of Appeal expanding the scope of a class action lawsuit against ICBC to allow claims for punitive damages to be included in the claim.

In the recent case (Ari v. ICBC) ICBC was sued after an employee of theirs passed personal records ICBC kept to “an acquaintance involved in the drug trade” after which a series of attacks were carried out against some of the individuals who had their private information compromised.  The court noted the following background

[2]             A former employee of ICBC, Ms. Candy Elaine Rheaume, for no business purpose, accessed personal information of 78 ICBC customers (“Primary Plaintiffs”) who had been at or near the Justice Institute of British Columbia in New Westminster. The personal information included names, addresses, driver’s license numbers, vehicle descriptions and identification numbers, license plate numbers, and claims histories. Ms. Rheaume then provided the information to an acquaintance involved in the drug trade. She received $25.00 per name provided. She was charged with, and pleaded guilty to, fraudulently obtaining a computer service pursuant to s. 342.1 of the Criminal Code and received a suspended sentence with nine months probation.

[3]             The illegally obtained information was used to target 13 of the Primary Plaintiffs (“Attack Victims”) with vandalism, arson and shootings between April 2011 and January 2012 (“Attacks”). Two people have been found criminally responsible for their involvement in the Attacks. The attackers thought they were targeting police officers solely because the vehicles were parked at or near the Justice Institute.

The Plaintiff succeeded in certifying a class action lawsuit against ICBC on the basis that they should be vicariously liable for the employee’s wrongdoing.  The chambers judge hearing the certification application declined and include all class members the plaintiff sought to have included and also removed the claim for punitive damages.  In finding that punitive damages claims should form part of the proceeding the BC Court of Appeal provided the following reasons:

[29]         Punitive damages may be awarded when misconduct “represents a marked departure from ordinary standards of decent behaviour”: Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 36. Punitive damages may be certified as a common issue in appropriate cases. Rumley v. British Columbia, 2001 SCC 69 at para. 34.

[30]         Rather than consider the past history of breaches of privacy by ICBC employees—the evidence supported that at least 7 employees have been terminated by ICBC between 2008 and 2011 for privacy breaches—the chambers judge considered the steps taken since the breach in this case was discovered. While laudable on ICBC’s part, subsequent conduct is not the sole basis upon which punitive damages are determined. The chambers judge should have accepted as true the allegation that ICBC has a history of employees breaching private information. Instead, she judged the case on the merits on the evidence before her. That was an incorrect approach.

[31]         In my view, the chambers judge erred when she refused to certify punitive damages. There was a basis in fact for the claim based on the information relating to the history of privacy breaches by employees.

[32]         Before us, ICBC asked that if we overturn the failure to certify the issues, we return the case to the chambers judge for the analysis on preferability. This was the approach this Court took in Kirk v. Executive Flight Centre Fuel Services Ltd., 2019 BCCA 111 at para. 151.

[33]         With respect to the punitive damages issue, the chambers judge continued the analysis and concluded that had she not decided that there was no basis in fact for a claim for punitive damages, it would be an appropriate case for certification.

[34]         The chambers judge carefully analyzed the preferability of the issues she did certify. In respect of the Other Residents, her analysis is equally applicable. The common issues that were certified apply equally to the Other Residents. Some of the Other Residents will fall into the subclass.

[35]         A judge has a great deal of discretion to change things to fit the circumstances as a class proceeding progresses. At this point, there having been no discovery, it is my view that the additional classes and common issues are preferable for a class proceeding. I would not refer that issue back to the chambers judge for further consideration as a result of allowing this appeal.

[36]         I would allow the appeal, include the Other Residents as members of the class, and certify the punitive damages issue as a common issue. I would leave the tasks of identifying the broader class and framing the common issue for the chambers judge.

Society, individuals pay hefty price for private vehicles in Calgary

Driving is by far the most expensive option for getting around; walking and cycling generate savings

Drew Anderson · CBC News

Driving is by far that most expensive way to get around Calgary, both for individuals and society as a whole, according to a new travel cost calculator released by the city.

The calculator uses various data, like costs to maintain roads and sidewalks, cost of insurance and collisions, costs of congestion, costs of pollution, as well as health-care savings from exercise.

Results are calculated for each kilometre travelled either by walking, cycling, transit or driving.

“It’s not a perfect measurement, but it gives people a general understanding of the costs and benefits of their choices,” said Ward 7 Coun. Druh Farrell.

“It doesn’t monitor ties to environmental benefits, for example. It doesn’t measure quality of life and well-being — and we know that being active helps with with well-being and mental health — and it doesn’t measure equity.”

The costs

It costs approximately $1.25 for each kilometre travelled by an individual in a vehicle.

Factors that make it the most costly option include maintaining and operating roads, additional infrastructure, collisions, congestion and the personal costs of maintenance, insurance and more.

There are no redeeming savings associated with motorized vehicles.

The same is true for transit, although its costs are significantly reduced (67 cents per kilometre) and the majority of the costs are borne by the public, as opposed to the individual.

The benefits of walking, biking

Where the calculator finds benefits is in the physical exercise and health cost savings association with walking or cycling. Walking is the most cost-effective option, although it’s not always a viable alternative for long commutes.

Walking earns individuals and society 25 cents per kilometre, while cycling nets one penny for each kilometre.

“We need to be talking about a complete picture of how people get around in Calgary,” said Farrell.

“Yes, there may be trips that are most appropriate made by car or by transit, but within the neighborhood context, we’re seeing more and more interest in active living.”

She says it’s necessary to stop separating uses and start talking about a complete transportation network that includes all forms of travel.

Impact of decisions

Chris Blaschuk, manager of city’s Next 20 project, which is looking at long-range land use and transportation plans, said the city used data from its budgets for costs such as infrastructure and transit operations. It looked at national research to estimate some of the health and environmental costs.

“We wanted to create a tool for citizens that would really show them all those costs that are being paid for not just by themselves as individuals but through their taxes, or perhaps paid by others, to help show some of the different impacts of their travel choices,” he said.

Blaschuk said the main motivation for creating the calculator was to inform individuals, but that it also provides a simple template that could help inform city decision-making.

For Blaschuk, the biggest takeaway was the simple reminder of just how expensive it is to own and operate a private vehicle.

“You know, we’ve been talking to young people through our Next 20 project and that’s the main feedback they give us, this ‘I can’t afford a car,’ and this sort of helps shed some light on why that is,” he said.

 

Roadblocks ahead for Alberta drivers trying to get insurance

Alberta drivers are being cautioned about a possibly bumpy road ahead when it comes to insurance coverage.

The Insurance Bureau of Canada (IBC) said due in part to a five per cent cap on auto insurance rate increases implemented by the previous NDP government, insurers are being forced to make some changes.

An IBC spokesperson told Global News that while the cap — which is still in place — may have seemed like a good idea to protect consumers, it has caused significant problems.

“Right now we have a very unhealthy market here in Alberta,” said Celyeste Power, IBC vice president of Western Canada.

“Claims costs have been spiraling out of control for the past few years. Insurers are losing up to $0.30 on every single dollar that they’re bringing in.”

IBC also said the industry is not turning a profit through its investments, although it didn’t explain exactly how much it’s losing.

It did, however, send a letter to the Alberta premier, outlining what it called significant issues that drivers, brokers and agents are facing.

“That’s something that we’re certainly concerned about,” Jason Kenney said in response to the letter. “I’d be happy to sit with the insurance bureau and discuss that.”

But insurers aren’t the only ones unhappy these days.

Calgarian Scott Ramsay was one of many motorists who contacted Global News after he received a lengthy renewal form from his auto insurer Aviva Canada.

“Just the way it was worded kind of ticked me off,” Ramsay said.

Not only did he feel he had to go through hoops to be renewed for coverage, he also was informed he’d have to pay his full premium up front.

Aviva Canada told Global News: “Fundamentally, we’re just working to make sure we have accurate and updated information so that we have a full understanding of our customers’ needs.”

Aviva added it’s doing this because, during the year, drivers can get into accidents or get tickets and the company can’t accurately rate or assess the risk, or determine the proper premium for renewal.

IBC said this doesn’t mean Alberta drivers won’t get insurance, but they may not get renewed automatically, be allowed to pay in installments or be covered for what’s considered optional coverage.

“What is becoming more difficult, and the longer we go on in this unhealthy market, is finding the non-mandatory coverage like theft or hail coverage for example,” Power said.

Power said IBC is optimistic a solution will be found for all sides, but that solution won’t necessarily mean lower rates.

According to IBC, Alberta drivers already pay the third highest insurance rates in Canada.

ICBC’s top tips for a safe long weekend road trip

ICBC’s top tips for a safe long weekend road trip

As drivers hit the road this Victoria Day long weekend, police will be conducting a province-wide enforcement blitz to target speeders as part of a month-long campaign.

Over the Victoria Day long weekend, 540 people were injured in 2,300 crashes in B.C. in 2017.*

In a recent survey conducted by Ipsos for ICBC (April 2019), almost three-quarters (72 per cent) of respondents said they’ve been concerned for their safety as a passenger in a vehicle they considered to be speeding. And as drivers, 46 per cent said their top concern of possible consequences from speeding was injuring a passenger.

With speed the number one cause of car crash fatalities in B.C., it’s no wonder people are concerned. As you’re traveling with family and friends this long weekend, remember to slow down and speak up if you feel uncomfortable.

Speeding increases your risk of crashing. That’s why ICBC, police and Speed Watch volunteers are urging drivers to slow down. When you slow down, you see more of the road and have more time to react.

ICBC’s top tips for a safe long weekend road trip:

  • Plan your route and check road conditions at drivebc.ca before you leave.

  • Don’t speed up as someone is trying to pass you. Help the other driver get back into your lane by slowing down and making room.

  • Be realistic about travel times. Don’t rush to make up time – slow down to reduce your risk of crashing and arrive at your destination safely.

  • Make a game of looking for motorcycles. Have each passenger guess how many motorcycles you’ll see during the drive and then count them as you go. It’s a great way to teach young drivers to look for motorcyclists.

  • Stay focused and avoid distractions that take your mind off driving and your eyes off the road. Distracted driving is one of the most common causes of crashes so remember to leave your phone alone.

Regional statistics*:

  • Over the Victoria Day long weekend, 390 people were injured in 1,500 crashes throughout the Lower Mainland in 2017.

  • Over the Victoria Day long weekend, 61 people were injured in 352 crashes on Vancouver Island in 2017.

  • Over the Victoria Day long weekend, 69 people were injured in 350 crashes throughout the Southern Interior in 2017.

  • Over the Victoria Day long weekend, 16 people were injured in 120 crashes throughout the North Central region in 2017.

*Victoria Day long weekend is calculated from 18:00 the Friday prior to Victoria Day to midnight Monday. Injured victims and crashes from 2017 ICBC data.

Road fatalities down significantly on OPP patrolled roads this year

Fatalities are down significantly this year on roads patrolled by Ontario Provincial Police, the force said Wednesday amid a cross-country traffic enforcement blitz.

The OPP said 58 people died on roads from Jan. 1 to May 5, compared to 97 road fatalities during the same time period last year  a 40 per cent decrease.

“We’d like to attribute it to people’s good driving behaviour and maybe we’ve changed some of that driving behaviour with our enforcement initiatives, but one poor weekend of fatal crashes, we can stack that number up pretty quick,” said Sgt. Jason Folz.

“It’s difficult to pinpoint the actual reason, the numbers are the numbers.”

The OPP said 45 per cent of fatalities so far this year are linked to speed, alcohol/drugs, distracted driving and lack of seat belt use the so-called  “big four.”

Last year, about 53 per cent of road deaths were linked to the big four.

“Until that number is zero, we’ve got work to do,” Folz said.

The Canadian Association of Chiefs of Police is currently co-ordinating Canada Road Safety Week, a national campaign that began Tuesday and runs through long weekend.

Police officers across the country will be out in full force focusing on the big four, the association said.

There were 1,841 vehicle fatalities across the country in 2017, according to the latest data published by Transport Canada. That is a sizable decrease from a 20-year high of 2,980 fatalities in 1999.

“Canada Road Safety Week is an effective traffic enforcement initiative, however it is only part of the solution to saving lives. It is important that everyone take responsibility to ensure safety on our roads,” said OPP Commissioner Thomas Carrique.

Folz said the force was hoping motorists would be careful on the roads over the upcoming long weekend.

“Our highways will be full come the long weekend,” he said.  “It will be a busy time, so be safe.”

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