2008 BCSC 1426 Joe v. ICBC

Before: The Honourable Mr. Justice Halfyard

Reasons for Judgment

Plaintiff appeared on her own behalf
Counsel for the defendants:	A.R. Westmacott
Date and Place of Hearing:	October 16, 2008
	Campbell River, B.C.

The Application

[1] This is an application by the defendants for the following relief:

a) An order striking out the statement of claim pursuant to Rule 19(24)(a), (b) and (d) on the grounds that the statement of claim discloses no reasonable cause of action, is unnecessary, scandalous, frivolous or vexatious and is otherwise an abuse of process; and an order dismissing the proceeding on one or more of these grounds;

b) In the alternative, an order dismissing the action pursuant to Rule 18(6) on the ground that it has no merit; and

c) An order that the plaintiff pay the costs of the defendants.

The Statement of Claim

[2] The statement of claim is just over one page in length, and consists of six numbered paragraphs and a prayer for relief. I would paraphrase the allegations made in paragraphs one and two, as follows:

a) The defendants owed a constitutional duty to the plaintiff not to infringe her right to “freedom of thought, belief, opinion and expression”, as guaranteed by s. 2 of the Canadian Charter of Rights and Freedoms.

b) The defendants refused to accept the plaintiff’s statement of how the motor vehicle accident of December 13, 2003 occurred, and thereby infringed her said Charter rights.

[3] Paragraphs three and four of the statement of claim allege in substance that the defendants had a duty not to infringe the plaintiff’s rights under s. 7 and s. 12 of Charter of Rights. There is no express allegation that the defendants have breached those rights, but it could be implied that the corresponding breaches are asserted in paragraphs five and six.

[4] I set out paragraphs five and six of the statement of claim verbatim:

5. The defendants applied intimidation, manipulation, defamation of my character and uttered threats in respect of influencing my testimony so as to limit liability in the case of Knight v. Joe et al, motor vehicle accident of December 13, 2003.

6. I believe that the defendants are responsible for professional misconduct; breach of my trust; abuse of power; and conspiracy to suborn perjury. In so doing are responsible for ignoring my rights set down and defined in the Canadian Constitution, the Canadian Charter of Freedoms and Rights, and the Bill of Rights.

Procedural Issues

[5] On the hearing of an application to strike out a statement of claim on the ground that it discloses no reasonable claim, no evidence is admissible. However, the plaintiff Helen Joe has prepared her own pleadings and has represented herself throughout this proceeding, from the time she commenced her action on March 2, 2006. She opposes the application of the defendants and has taken the position that, if the statement of claim is defective, she should be allowed to make all proper and necessary amendments. Of course, evidence is admissible on the other applications under Rule 19(24) and evidence is essential on the application under Rule 18(6) for summary judgment. Accordingly, I find it convenient to summarize the relevant facts before considering any of the applications.

The Facts

[6] On December 13, 2003, the plaintiff was driving her husband’s motor vehicle in Campbell River, and he was riding in the car with her as a passenger. This motor vehicle was involved in a collision with another vehicle, at an intersection. The plaintiff was facing west, emerging from a stop sign on Pinecrest Street, when a motor vehicle being driven by Darren Knight north along Dogwood Street, collided with the driver’s side of the motor vehicle, being driven by the plaintiff. There did not appear to be any serious injuries sustained by anyone in either motor vehicle. The police attended at the scene of the accident, and issued a traffic ticket to the plaintiff, for failing to stop at a stop sign. The plaintiff later paid the fine amount indicated on the traffic ticket.

[7] On June 6, 2005, Mr. Knight commenced action against the plaintiff and her husband, claiming damages for personal injuries sustained as a result of the plaintiff’s negligent driving. On July 19, 2005, the defendant Insurance Corporation of British Columbia (“I.C.B.C.”) appointed the defendant law firm Shook, Wickham, Bishop and Fields as defence counsel. The defendant Vishal Bajpai, an associate of the law firm, was assigned as counsel for Ms. Joe and her husband.

[8] The defendant Renay Turner was a claims adjuster employed by I.C.B.C. at Victoria, who was handling Mr. Knight’s claim and giving instructions to defence counsel.

[9] Mr. Bajpai and Ms. Joe had a telephone conversation on or about August 11, 2005. Mr. Bajpai say that, during this conversation, the plaintiff told him in effect that she was uncertain as to whether or not she had stopped at the stop sign and that she may have had a muscle spasm which caused her to move the car forward into the intersection. Mr. Bajpai says that, in a later telephone conversation on November 23, 2005, the plaintiff told him that she had come to a complete stop at the stop sign, she then edged out to see if traffic was coming, and then the other car hit her car.

[10] The plaintiff deposes that she told the investigating police officer on December 13, 2003 that she stopped at the stop sign and then edged forward to get a better view and states that she told Mr. Bajpai essentially the same thing in both of their telephone conversations about the accident (although she seems to dispute the dates of the telephone conversations).

[11] In late November 2005, Mr. Bajpai advised Ms. Turner that liability for the accident should not be admitted because Mr. Knight might have been contributorily negligent, based on Ms. Joe’s second version of events. Mr. Bajpai also advised that Mr. Knight’s potential contributory negligence for failing to wear a seat belt should be pursued.

[12] Mr. Bajpai says that, on December 7, 2005, he informed the plaintiff by telephone that he needed to meet with her to prepare for her examination for discovery, which had been set for February 1, 2006. He says he told Ms. Joe that he needed to discuss her recollection of the motor vehicle accident; she told him there was no need to do so because she had told him about it already and he told Ms. Joe that she had (in effect) given him two different versions.

[13] It is difficult to determine the plaintiff’s version of the telephone conversation described by Mr. Bajpai as having occurred on December 7, 2005. But Ms. Joe does say that she repeated to Mr. Bajpai essentially the same thing that she had already told him. Ms. Joe also states that, in one or more of these telephone conversations, Mr. Bajpai scolded her for paying the traffic ticket, but Mr. Bajpai denies this. The plaintiff deposed further that she felt alright with accepting total fault for the accident, because her car was in the pathway of Mr. Knight’s vehicle, when his car collided with hers. The thrust of the plaintiff’s evidence was that she may not have used the same words each time in describing her actions just before the collision, but that she believed her descriptions were essentially the same. She insisted that she had always stated she had come to a full stop at the stop sign, and then had to edge out forward to see if any traffic was approaching.

[14] Mr. Bajpai admits that he did ask the plaintiff why she had paid the traffic ticket if she had stopped at the stop sign, but denies being critical of her for doing so.

[15] Ms. Turner deposes that she had telephone conversations with Ms. Joe on January 11 and January 17, 2006. She says that, during these conversations, Ms. Joe complained that it was “unfair” to deny liability on her behalf, she was upset at Mr. Bajpai for asking her why she had paid the traffic ticket, and she told Ms. Turner that “she was not going to change her testimony.” Ms. Turner also states that Ms. Joe “again described in detail how the accident occurred.”

[16] The plaintiff’s version of her telephone discussions with Ms. Turner is somewhat different, but she seems to agree that these topics were discussed.

[17] The next significant event is the plaintiff’s meeting with Mr. Bajpai on January 30, 2006, for the purpose of preparing for the examination for discovery. At that meeting, Mr. Bajpai asked a number of questions about the plaintiff’s employment history, which the plaintiff was reluctant to answer and did not answer. The plaintiff alleges that Mr. Bajpai wanted to revisit the question of how the accident occurred, and that she told Mr. Bajpai that she would not change her testimony. She states that Mr. Bajpai told her that she had to answer his questions, or I.C.B.C. might refuse insurance coverage for Mr. Knight’s claim. She states that Mr. Bajpai asked her if she knew Mr. Knight (the other driver), and that she believed that Mr. Bajpai was thereby accusing her of conspiring with Mr. Knight to enable him to make a fraudulent claim.

[18] Mr. Bajpai denies that he told the plaintiff that she had to answer his questions or she might be in breach of her insurance coverage. He admits that Ms. Joe accused him of trying to change her story. He admits he asked the plaintiff if she knew Mr. Knight, and says that he did so because he became suspicious of the plaintiff’s insistence that she was totally at fault for the accident. It is agreed that the meeting did not last very long, and that the plaintiff walked out. Mr. Bajpai’s only note of the content of their conversation was: “Won’t give me info on her background.”

[19] On January 30, 2006, after his meeting with the plaintiff, Mr. Bajpai telephoned Renay Turner and told her about the abortive meeting. Ms. Turner told Mr. Bajpai that she would speak to Ms. Joe.

[20] On January 30 or 31, 2006, Ms. Turner spoke to the plaintiff by telephone. Ms. Turner states that she told Ms. Joe that she had a duty to cooperate as an insured and to answer Mr. Bajpai’s questions. She said she told the plaintiff that she would be sending her a letter informing her that she would have to cooperate because the failure to cooperate could be a breach of her insurance contract. Ms. Turner states that the plaintiff was upset about Mr. Bajpai asking her why she had paid the traffic ticket, and about liability for the accident being denied on her behalf.

[21] The plaintiff’s account of her telephone discussion with Ms. Turner differs in some respects. Ms. Joe agrees that she was told about having a duty to cooperate and that Ms. Turner would be sending her a letter concerning a potential breach of her insurance contract. The plaintiff states that Ms. Turner put these matters in stronger terms, which she took to be a threat that she would have to comply, or she would have to pay Mr. Knight’s claim herself. Ms. Joe also says that she believed Ms. Turner was accusing her of fraud.

[22] On January 31, 2006, the plaintiff called the defendant law firm and discussed her concerns with Mr. Shook. She complained about the conduct of Mr. Bajpai, and Mr. Shook said that he would look into her concerns. Mr. Shook spoke to Mr. Bajpai, and on February 2, 2006, Mr. Bajpai wrote a letter to the plaintiff. In that letter, Mr. Bajpai acknowledges the plaintiff’s belief that he was trying to influence her version of how the motor vehicle accident occurred, and assured her that he was not trying to do so. He did describe the change that he perceived the plaintiff to have made, in the descriptions of the accident that she gave to him.

[23] The discovery was cancelled (for an un-stated reason), and was rescheduled for March 1, 2006.

[24] At or around this time, the plaintiff met with Ron Woiden, a claims manager for I.C.B.C. at Campbell River, and voiced her concerns about the conduct of Mr. Bajpai. She told Mr. Woiden that Mr. Bajpai had threatened to hold her in breach of her insurance policy “if she did not cooperate.”

[25] On February 7, 2006, Ms. Turner directed that a caution letter be prepared and sent to the plaintiff. On February 16, 2006, Ms. Turner settled Mr. Knight’s claim, but she inadvertently did nothing to prevent the caution letter being sent to Ms. Joe. That letter, over Ms. Turner’s name (but not signed by her), was sent to Ms. Joe on February 16, 2006, by certified mail. The text of that letter was as follows:

We are still investigating this accident. However, there is some indication that you did not meet a condition of your insurance contract. This means I.C.B.C. may not pay for your claims and you may have to repay I.C.B.C. for any payments it makes to others for losses that are your responsibility.

When we have completed our investigation, we will let you know if your autoplan insurance will cover you for losses from this accident.

This letter does not affect any of I.C.B.C.’s legal rights regarding your insurance coverage, or any time limits related to this accident.

[26] On February 23, 2006, the plaintiff received the letter from Ms. Turner. At a later date not specified, the plaintiff received a letter dated February 21, 2006 from Mr. Bajpai informing her that the case had been settled and that the examination for discovery set for March 1, 2006 had been cancelled.

[27] On February 23, 2006, Ms. Joe again telephoned Mr. Shook, and told him that she had received the letter from I.C.B.C. stating that she was being investigated for breach of her insurance contract. Mr. Shook told the plaintiff that any potential breach was a matter between herself and I.C.B.C. and that he could not help her in getting a letter from I.C.B.C. stating that her insurance coverage would not be breached.

[28] On February 23, 2006, Ms. Joe also telephoned Mr. Peavey Brown of I.C.B.C., who was the supervisor for Renay Turner. After speaking to Ms. Joe, Mr. Brown contacted Ms. Turner “and advised her to address the breach issue by arranging to have a letter sent to Ms. Joe.” In his notes, Mr. Brown indicated he told Ms. Turner to tell Ms. Joe that she was not being breached. His notes also indicate that Ms. Joe told him that she would sue, if she did not get assurance that she would not be breached.

[29] On February 28, 2006, Ms. Turner sent a letter to the plaintiff advising that I.C.B.C. had settled the claim of Darren Knight. She said nothing about the breach of coverage issue.

[30] On March 2, 2006, the plaintiff commenced this action. On March 15, 2006, Ms. Turner sent a letter to Ms. Joe, stating that she was not being held in breach of her insurance policy.

[31] At the end of the hearing, counsel for the defendants asked for and was granted leave to file further affidavit material to clarify two points of uncertainty in the evidence. That was done. However, Ms. Joe took it upon herself to also file another affidavit, which she believed might answer some of the questions I had asked during the hearing. Ms. Westmacott has quite properly objected to the admission of this affidavit. Accordingly, I looked only at the Police Report of the accident, so as to better understand the occurrence of the collision.

The Issues

Rule 19(24)(a)

[32] The first issue is whether the statement of claim discloses any reasonable cause of action.

The Law

[33] Under an application under Rule 19(24)(a) the applicant must show that the action has no chance of success and is certain to fail. In deciding this question, the court must assume that the material facts pleaded in the statement of claim are true. See Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

[34] Rule 19(1) requires that pleadings “must contain a statement in summary form of the material facts on which the party relies.”

Discussion

[35] The defendants argue that the statement of claim fails to plead any or any sufficient material facts which, assuming them to be true, could amount to a cause of action for:

a) Breach of the plaintiff’s constitutional rights;

b) Intimidation of the plaintiff;

c) Professional misconduct;

d) Breach of trust;

e) Abuse of power; and

f) Conspiracy to suborn the plaintiff to commit perjury.

[36] In my opinion, the plaintiff has not pleaded any material facts in support of her allegations that the defendants had a constitutional duty to respect her rights under sections 7 and 12 of the Charter of Rights, and that they breached their duty in that respect.

[37] With respect to the allegation that the defendants infringed the plaintiff’s right to freedom of thought, belief, opinion and expression, the only fact pleaded in support of this allegation is the alleged refusal by the defendants “to accept [the plaintiff’s] testimony as a statement of fact…to determine liability under the Insurance Liability Act.” If it is assumed that the defendants did not believe the plaintiff’s statement as to how the accident occurred, I do not see how that fact could infringe the plaintiff’s rights under s.2 (b) of the Charter. Disbelief by the defendants as to the plaintiff’s version of events could not infringe the plaintiff’s right to freedom of thought, belief or opinion. As to her right to freedom of expression, it is not alleged that the defendants attempted to suppress the plaintiff’s statement or prevented her from making it. An allegation that the defendants refused to believe the plaintiff’s statement could not (even if proved) amount to an infringement of her right to freedom of expression, in my view.

[38] There is an additional obstacle to the plaintiff’s claims based on the alleged infringement to her constitutional rights. With respect to the claims as against Shook, Wickham, Bishop and Fields, and Mr. Bajpai, they are private parties and the general rule is that the Charter of Rights does not apply to private litigation. See R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573. If the plaintiff had alleged that these defendants were relying on a statute or a regulation to justify an infringement of the plaintiff’s constitutional rights, the Charter could potentially have application, because government action would have been required to create the statute or regulation. But no material facts are alleged in this regard.

[39] Counsel for the defendants took the position that the court should assume, for the purposes of this application only, that I.C.B.C. should be considered to be a governmental entity, so that, in certain circumstances, the Charter of Rights would apply to its actions. But there is no allegation in the statement of claim that I.C.B.C. has purported to invoke any statute or regulation (or any rule of the common law) to authorize and justify an infringement of the plaintiff’s constitutional right to freedom of expression. Moreover, as I have previously mentioned, the disbelief of an insured’s statement of an accident occurrence without more, could not constitute an infringement of this constitutional right.

[40] I conclude that the statement of claim fails to disclose a reasonable cause of action based on the alleged infringement of the plaintiff’s rights under the Charter.

[41] In my opinion, there are absolutely no material facts pleaded which could, if proved, constitute any cause of action for defamation, professional misconduct, breach of trust or abuse of power. These matters seem to me to be included in or subsumed by the allegations of intimidation and conspiracy, as against Mr. Bajpai and Ms. Turner separately, and together as alleged co-conspirators.

[42] The essence of the plaintiff’s other claims taken at their strongest, is that Mr. Bajpai and Ms. Turner, both alone and together, wrongly tried to make her change her story and make a false statement as to how the accident occurred, by threatening to cancel her insurance coverage for Mr. Knight’s claim if she did not comply. Although this content of the alleged intimidation is not made clear in paragraphs 5 and 6 of the statement of claim, I think it is necessarily implied, on a reading of those paragraphs together with paragraph 2. It is apparent from paragraph 5 that the alleged motive for this wrongdoing was “to limit liability in the case of Knight v. Joe et al.”

[43] The statement of claim does not allege that the plaintiff was in fact induced by the conduct of Mr. Bajpai and Ms. Turner to make a false statement. Nor is it alleged that the plaintiff suffered loss or damage as a consequence of the conduct of these defendants. Moreover, there are no material facts pleaded to establish the essential elements of the tort of conspiracy to injure. But there is an outline of the nature of the alleged wrongdoing, including the content and purpose of the alleged conspiracy. In these circumstances, I think it is arguable that the statement of claim could be amended so as to allege a cause of action for conspiracy to suborn perjury.

Rule 19(24)(b) and (d)

[44] The defendants also argue that the statement of claim should be struck out (in whole or in part) because it contains pleadings which are “unnecessary, scandalous, frivolous or vexatious.” I was referred to the decision of Mr. Justice Romilly in Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, [1999] B.C.J. No. 2160, in particular, paragraph 47.

[45] As I understand our procedural law, these kinds of complaints about pleadings are generally made where the pleadings do disclose a cause of action, but go far beyond what is necessary or proper to allege. However, I agree with Romilly J. that:

A pleading is unnecessary or vexatious if it does not go to establishing the plaintiff’s cause of action or does not advance any claim known in law….

[46] It may be said that the pleadings of defamation, professional misconduct, breach of trust and abuse of power are “unnecessary.” But I do not think that any Rule 19(24)(b) defects in the statement of claim would justify striking out the statement of claim.

[47] As to the assertion that the statement of claim is an abuse of process, I reject the submission of the defendants.

Rule 18(6)

[48] Before considering the issue of whether the statement of claim could be properly amended so as to allege a cause of action, I will consider the defendants’ application for summary judgment. For the purposes of this application, I will presume that the statement of claim does disclose a cause of action for intimidation and conspiracy to injure, and that all material facts necessary to such claims have been pleaded. The question then becomes whether the affidavit evidence contains facts which, if accepted as true, could support a judgment in favour of the plaintiff.

Law

[49] In order to succeed on this application, the defendants must establish that the plaintiff is “bound to lose” if the action proceeds to trial. In other words, the defendants must show that there is no bona fide triable issue. See Serup v. School District No.57 (1989), 54 B.C.L.R. (2d) 258 (C.A.); Skybridge Investments Ltd. v. Metro Motors Ltd. 2006 BCCA 500, 61 B.C.L.R. (4d) 241 (at paragraphs 10 – 13).

Discussion

[50] Nowhere in her evidence does the plaintiff depose that either Mr. Bajpai or Ms. Turner asked her or told her to change her story about how the accident happened. Nor does she assert that if she did not change her story in a certain way, her insurance coverage would be cancelled. I found Ms. Joe’s evidence on this issue confusing, to say the least. First, she states that she consistently gave only one version of events, claiming that she had always said that she stopped at the stop sign, and then edged forward to see whether any traffic was coming. She does not say:

I told Mr. Bajpai that I didn’t know whether I stopped at the stop sign or not, but he wanted me to change my story to say that I had stopped.

[51] Mr. Bajpai states that in his first telephone conversation with Ms. Joe (in August), she was uncertain as to whether she had come to a stop at the stop sign, but later (in November) stated clearly that she had stopped. The end result is that there is not even an assertion under oath by the plaintiff that either Mr. Bajpai or Ms. Turner tried to get her to change her story (let alone change her true story to a false one).

[52] From the plaintiff’s affidavit evidence, I infer that she believed that Mr. Bajpai (and perhaps Ms. Turner) was trying to coerce her into changing her story. She seems to believe that Mr. Bajpai’s motive was one of self interest, to enable him to “win the case” and (possibly) to gain the respect of his law firm and/or I.C.B.C. The plaintiff appears to believe that Ms. Turner’s motive was to save money for I.C.B.C. in paying for Mr. Knight’s claim. It is clear that the plaintiff believes that both of these defendants threatened her with the cancellation of her insurance coverage, if she did not change her story in the way she felt they wanted her to. But as mentioned, the plaintiff never identifies what part of her story they wanted her to change, or what they wanted her to change it to. The closest she comes to identifying a reason why these defendants were threatening to cancel her insurance coverage is to say that she would not answer Mr. Bajpai’s questions about matters she thought to be irrelevant (namely, the names of former employers). But that has absolutely nothing to do with them wanting her to change her statement about how the accident happened.

[53] Section 73 of the Insurance (Vehicle) Regulation requires an insured to cooperate with I.C.B.C. in the investigation, settlement or defence of a claim or action, and provides that I.C.B.C. will not be liable to an insured who, to the prejudice of I.C.B.C., fails to comply with this legal obligation. Section 74.1 gives I.C.B.C. the exclusive conduct and control of the defence of an action for damages brought against an insured, including the power to appoint and instruct counsel to defend the action, to admit liability in whole or in part on behalf of the insured, and to settle the action.

[54] It was counsel’s duty to assess Ms. Joe’s statement of how the accident occurred, and to then advise I.C.B.C. as to whether or not liability should be admitted. Under the regulations, I.C.B.C. had the exclusive authority to decide whether liability would be admitted, in whole or in part, on behalf of Ms. Joe. Many cases occur in which I.C.B.C admits 100% liability on behalf of insured drivers who deny they were at fault for the accident. In the present case, there was nothing improper in defence counsel and I.C.B.C. taking the initial position that Mr. Knight was partly at fault for the accident. Mr. Knight had apparently admitted he was not wearing a seat belt. That position was also justified by Ms. Joe’s description of her actions, even accepting the statement she claims to have consistently given. But counsel would understandably want to pin down the version of events that she would be giving on discovery, in the circumstances of this case. That could never amount to an attempt to make Ms. Joe deny that she was at fault. It was for counsel to predict what degree of fault should be attributed to her, based on her own statement and the other circumstances surrounding the accident.

[55] Accordingly, I think that defence counsel appointed to represent Ms. Joe acted quite properly in wanting to review again her statement of how the accident occurred, in light of his perception that she had given two different accounts. In my opinion, Ms. Joe acted unreasonably in refusing to further discuss that matter with him. I think her conduct in that regard would justify Ms. Turner in telling the plaintiff that she was not fulfilling her duty to cooperate with the Corporation. But her refusal or failure to answer questions as to the identity of her former employers would not, in my opinion, justify such a warning. There is no evidence which describes the “questions” of defence counsel that Ms. Turner told the plaintiff she must answer, in their telephone conversation.

[56] The plaintiff’s existing grounds for feeling she had been wronged were amplified when Ms. Turner sent her a letter warning Ms. Joe that she might not be covered by insurance for Mr. Knight’s claim. In the context of the present dispute, the letter was defective in the sense that it did not even purport to identify the conduct of the plaintiff which was said to amount to a failure to cooperate. If the plaintiff had been told that she must give a statement to defence counsel about how the accident occurred or risk breach of her insurance coverage, the written warning may have been justified.

[57] However, it is necessarily implicit in Ms. Turner’s evidence that, when she settled Mr. Knight’s claim, she had no intention of pursuing any breach of coverage against the plaintiff. The “breach” letter should never have been sent at all.

[58] I return to the central issue. The plaintiff does not depose to the existence of facts which, directly or by inference, could support the conclusion that any of the defendants wanted the plaintiff to change her story about how the accident occurred, or that they knowingly conveyed that message to her. Even if the statement of claim was amended so as to allege that Mr. Bajpai or Ms. Turner, either individually or together, tried to get the plaintiff to commit perjury by changing her true story to a false one, the plaintiff would be bound to lose at trial. Her beliefs may be genuine, but they do not amount to evidence. Moreover, as I have tried to explain, her stated beliefs do not even go far enough to encompass the material facts which would have to be proved to establish a cause of action for intimidation or for conspiracy to suborn perjury.

[59] There is another ground upon which the application for summary judgment should succeed, with respect to Renay Turner. Section 30(3) of the Insurance Corporation Act states as follows:

30(3) No action or other proceeding whatever may be commenced against a person in respect of any Act or omission done in good faith in the administration or carrying out of this Act, regulations or any insurance plan established under any Act.

[60] The evidence of the plaintiff makes it plain that she believes Ms. Turner was not acting in good faith when she warned the plaintiff about the potential breach of her insurance coverage, and then failed to revoke the warning after settling Mr. Knight’s claim. But I do not think the facts deposed to by the plaintiff are capable of supporting a finding that Ms. Turner was not acting in good faith. Moreover, Ms. Turner’s evidence supports the conclusion that she was acting in good faith, notwithstanding the sending of the warning letter to the plaintiff after settlement of the claim. I hope Ms. Joe will be able to accept the apology offered so graciously and professionally by Ms. Westmacott during the hearing.

Disposition

[61] In my opinion, no useful purpose would be served in allowing the plaintiff to amend the statement of claim. It is my opinion that most of the possible causes of action fail to disclose any reasonable claim, and those that might be amended so as to allege causes of action for intimidation and conspiracy to suborn perjury are bound to fail. Accordingly, the application of the defendants is granted, the statement of claim is struck out in its entirety and the action is dismissed.

[62] At the end of argument on the hearing of the defendants’ application, I adjourned the plaintiff’s application (to compel further and better answers to interrogatories) pending my decision on this application. It follows that the plaintiff’s application must be dismissed.

Costs

[63] It appears that Ms. Joe told Mr. Peavey Brown on February 23, 2006, that she would be commencing a law suit, if she did not receive written assurance from I.C.B.C. that her insurance coverage would not be revoked. She had received no such letter when she filed her action on March 2, 2006, and did not receive the letter (which was dated March 15, 2006) until two weeks after commencing her action. She clearly believes that she would not have received this letter from I.C.B.C. had she not brought this action. I am persuaded that her belief is mistaken, but in the circumstances of this case, I would not award costs to the defendants. There will be no costs of this proceeding, including this application, and the application of the plaintiff to compel further and better answers to interrogatories.

_______________________________

Mr. Justice Halfyard

Citation:	*Joe v. I.C.B.C.,*
	2008 BCSC 1426