Jackson v. ICBC Date:, 2014 BCPC 179

Citation: Jackson v. ICBC Date: 20140728 2014 BCPC 0179 File No: C4327 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: RUSSELL JACKSON CLAIMANT AND: ROYAL CANADIAN MOUNTED POLICE (LADYSMITH DETACHMENT) and INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE

Appearing in person: Mr. Jackson Counsel for the Defendant: P.J. Penner Place of Hearing: Duncan , B.C. Date of Hearing: July 17, 2014 Date of Judgment: July 28, 2014 [ 1 ] The claim against the RCMP in this action was dismissed on a preliminary application, and Mr. Jackson’s claim proceeded to trial against the Defendant, Insurance Corporation of British Columbia (“ICBC”), alone.

Summary [ 2 ]

Section 24 of the Motor Vehicle Act RSBC 1996, c 318 prohibits anyone from operating a motor vehicle in British Columbia without a valid British Columbia driver’s license. Other sections of the statute provide exceptions to that prohibition.

The exception in issue in this case is section 34(1.1), which provides that “… a person who has a validly issued and subsisting driver's or operator's licence or permit issued according to the laws where he or she is ordinarily resident … “may operate a motor vehicle in British Columbia”… for 6 months from the date he or she last entered British Columbia …”. [ 3 ] On July 29, 2008, the Supreme Court of British Columbia awarded judgment in favour of ICBC against Mr. Jackson in the amount of $16,371.07, plus prejudgment interest of $1753.33 and costs to be assessed.

On October 23, 2008, costs were assessed at $20,059.58. No payments have been made on account of that judgment, and the balance remains owing. The judgment debt is a “motor vehicle indebtedness”, as defined by

section 1 of the Motor Vehicle Act and

section 93.1 of the Insurance (Vehicle) Act RSBC 1996, c 231. For that reason, ICBC was empowered by section 90(1) of the Motor Vehicle Act to suspend Mr. Jackson’s driver’s license. [ 4 ] Mr. Penner says that ICBC exercised its statutory right to suspend Mr. Jackson’s driver’s license. Mr. Jackson says that he voluntarily allowed it to lapse. It is unnecessary to decide that question because each agrees that, on November 21, 2012, Mr. Jackson did not hold a valid British Columbia driver’s license. [ 5 ] On November 21, 2012, Constable Cloutier of the RCMP observed Mr.

Jackson driving a vehicle in Ladysmith, British Columbia. He initiated a traffic stop and asked Mr. Jackson to produce his driver’s license. Mr. Jackson produced a driver’s license issued to him by the Republic of Mexico, which he asserts to be sufficient to entitle him to drive in British Columbia. Constable Cloutier did not accept that assertion. He issued a ticket to Mr. Jackson for driving without a license and ordered Mr. Jackson’s vehicle to be impounded under the authority of

section 251 of the Motor Vehicle Act . [ 6 ] Mr. Jackson alleges that he was a resident of Mexico on the day in question, and that his Mexican driver’s license was sufficient to entitle him to drive in British Columbia. That being so, he argues, Constable Cloutier had no authority to impound his vehicle. He alleges that ICBC is legally responsible for the impoundment because it caused Constable Cloutier to impound the vehicle. [ 7 ] Mr. Penner, for ICBC, says that Mr.

Jackson was “ordinarily resident” in British Columbia on November 21, 2012, and, for that reason, was entitled to drive in British Columbia only if he held a valid British Columbia driver’s license. If Mr. Penner is correct, Constable Cloutier was entitled to impound the vehicle, and Mr. Jackson’s claim must fail. Mr. Penner also raises other issues, which might afford a defence to ICBC even if I were to conclude that Mr. Jackson’s Mexican driver’s license was sufficient to authorize him to drive in British Columbia. [ 8 ] I have concluded that Mr.

Jackson’s claim in this action is an abuse of the process of the court, and should be dismissed on that ground. Accordingly, I need not decide the question of residence, or the other issues raised by Mr. Penner. The Evidence [ 9 ] Mr. Jackson was born in Saskatchewan, and moved to British Columbia with his family in 1967, at age 12. He is now 59 years of age. He spent his adult life in the construction and real estate development business on Vancouver Island. He bought his first home in Mexico about 1990, and now holds dual Canadian and Mexican citizenship. He is the sole shareholder of: (

i) a Canadian company which owns a number of residential rental properties on Vancouver Island; and (ii) a Mexican company which owns eight vacation condominiums, an electric bicycle business and a boat charter business, all in Los Cabos, Mexico. Rents on the Canadian properties are collected by an agent which the company employs for the purpose. Mr. Jackson assists in rent collection efforts by telephoning tenants. Mr. Jackson personally collects the rents on the Mexican properties, which generate annual net cash flow of $US 70,000 - $US 80,000 per year. [ 10 ] Mr.

Jackson says that he lives in Los Cabos, and visits Canada two or three times each year, for about two to three weeks on each visit. [ 11 ] Mr. Jackson’s most recent real estate development venture, in Ladysmith, was not a success. The secured lender commenced foreclosure proceedings, and was awarded a judgment on June 28, 2012, which included ( inter alia ) the following terms: a. an order nisi of foreclosure in relation to the project; b. judgment against Mr. Jackson (on his personal guarantee of the debt) for $2,255,070.06; c. an order nisi of foreclosure in relation to Mr.

Jackson’s home in Ladysmith, which he had mortgaged as collateral security to his personal guarantee.

Mr. Jackson said that, until the summer of 2013, he continued to believe that the units in the project could be sold by the secured lender at prices sufficient to retire the secured debt, thus enabling him to retain title to his home in Ladysmith. However, it became apparent to him in the latter part of 2013 that the sale proceeds would probably be insufficient for that purpose. No order absolute of foreclosure has yet been granted in relation to any of the properties which secure the debt. So, for example, Mr.

Jackson remains the registered owner in fee simple of his home in Ladysmith, and lives there when he is in Canada. [ 12 ] Mr. Jackson is the sole shareholder of several Canadian companies which, until the end of 2011, were engaged in the construction and real estate development business. At the end of 2011, he discontinued those operations. He acknowledges that he has placed his Mexican assets in a Mexican company for the purpose of hindering his creditors’ attempts to recover on their debts. [ 13 ] Mr. Jackson continues to be insured under British Columbia’s public health insurance program.

He pays no premiums for that insurance because he reports no Canadian income, and so claims to qualify for a 100% premium subsidy under the regulations to the Medicare Protection Act RSBC 1996, c 286. He says that the officials of the Medical Services Commission are well aware that he resides in Mexico and comes to Canada only for a few weeks each year. He says that he qualifies for the premium subsidy because he has no Canadian income and is not obliged to report his Mexican income to the Medical Services Commission. Mr. Jackson is an active user of the British Columbia health care system.

For example, he is scheduled for hip replacement surgery in Nanaimo later this year. [ 14 ] Mr. Jackson does not file Canadian income tax returns, and does not pay Canadian income tax. He says that Canada Revenue Agency has accepted his assertion that he is not a Canadian resident. British Columbia Health Insurance [ 15 ] Health care insurance is provided to residents of British Columbia under the Medicare Protection Act . Most British Columbia residents pay an annual premium, although the regulations provide for premium subsidies graduated according to income.

Residents with an annual income of less than $20,000 qualify for a 100% premium subsidy. The premiums are insufficient to cover all of the costs of the program. The Province of British Columbia pays the remaining costs from general revenue. That expenditure is the single largest item in the provincial budget. [ 16 ] With certain exceptions defined by the statute and the regulations, the Medicare Protection Act provides that coverage is available only to “residents” of British Columbia, and defines “resident” as a person who (underlining added): (

a) is a citizen of Canada or is lawfully admitted to Canada for permanent residence, (

b) makes his or her home in British Columbia , and (

c) is physically present in British Columbia for (

i) at least 6 months in a calendar year, or (ii) a shorter prescribed period None of the exceptions provided by the statute and regulations apply to Mr. Jackson, and there is no “shorter prescribed period” which applies to him. Abuse of Process [ 17 ] The following passage from the judgment of Tysoe, JA in First Majestic Silver Corp vs Santos 2012 BCCA 5 ; [2012] BCJ #8; 29 BCLR (5 th ) 211 @ paragraphs 22 - 25 is apt to Mr. Jackson’s case: The doctrine of abuse of process is a very broad and flexible mechanism to enable judges to prevent abuses of the court's process. In Toronto (City) v.

C.U.P.E., Local 79 , … , the Supreme Court of Canada adopted descriptions of the concept of abuse of process as proceedings "unfair to the point that they are contrary to the interest of justice" and "oppressive treatment". The concept of abuse of process is used in a variety of contexts. For example, in Toronto (City) v. C.U.P.E., Local 79, it was used to prevent an attempt to relitigate an issue which had already been adjudicated upon in circumstances where the requirements of the doctrine of issue estoppel had not been met.

In the present case, the defendants say the doctrine of abuse of process should be used to prevent the plaintiffs from bringing a subsequent action based upon allegations that are inconsistent with allegations made in support of a previous action (being the plan approval proceeding). The defendants submit the chambers judge erred in focusing on the concept of an election between inconsistent rights rather than on the type of mischief prevented in the case of Vanmills Establishment v. Coles ….

In that case, a former shareholder of a bankrupt company had sued the trustee in bankruptcy, alleging that his negligence and wrongdoing had caused loss to the former shareholder when he sold his legal and beneficial interest in his shares to Mr. Coles. The former shareholder then sued Mr. Coles alleging that he held the beneficial interest in the shares in trust for the former shareholder. In dismissing the second action, Mr. Justice Cohen said the following: This is not a matter of a litigant pursuing inconsistent remedies, where no election is necessary until judgment.

There can be no doubt that in the instant action Crux is attempting to pursue inconsistent rights. Crux elected in his action against Sigurdson to claim that he had disposed of his legal and beneficial interest in the C.I.S. shares to Coles. Having elected to sue Sigurdson on that basis, I find that Crux cannot now sue Coles in the instant action on the basis that he retained a beneficial interest in the C.I.S. shares. In my opinion, his election in his action against Sigurdson is binding upon him.

The principle that, in the case of inconsistent rights, a plaintiff's irrevocable and unequivocal election is deemed to be made by the commencement of an initial action is established in Scarf v. Jardine … and Ashmore v. Bank of British North America … .

In Vanmills Establishment , Cohen J. made reference to an election having been made, and there is jurisprudence that supports the notion that the doctrine of election governs this type of situation … However, there is support for the defendants' position that this type of defence falls under the rubric of abuse of process. In Mystar Holdings Ltd. v. 247037 Alberta Ltd. …, Justice Brooker considered the existence of inconsistent allegations within the context of the court's inherent jurisdiction to prevent abuses of the court's process.

He expressed the principle in the following terms: In general, I am persuaded that a party is not free to deliberately argue diametrically inconsistent facts in various actions, thus knowingly advancing irreconcilable positions which are not articulated as alternative claims. Mr. Jackson applied for, obtained and maintains medical insurance coverage in British Columbia on the premise that he is physically present in British Columbia for more than 6 months each year.

He claims an exemption from the requirement to hold a British Columbia driver’s license on the premise that he visits British Columbia for only a few weeks each year. Those are assertions which cannot be made in the alternative. One of them must be false. The community's sense of fair play and decency would be justly outraged if I were to grant him judgment on the latter premise after he has succeeded in procuring free medical insurance on the former premise. This action is an abuse of process, and is dismissed on that ground. [ 18 ] ICBC is entitled to its costs of this action, to be assessed by the Registrar.

July 28, 2014 _________________________ T. Gouge, PCJ