ICBC v. Prasad Date:, 2015 BCPC 383

Citation: ICBC v. Prasad Date: 20151119 2015 BCPC 0383 File No: C71325 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Division BETWEEN: INSURANCE CORPORATION OF BRITISH COLUMBIA CLAIMANT AND: AYRIN MALA PRASAD aka AYRIN MALA RAJ aka IRENE MALA RAJ aka IRENE MALA PRASAD DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. MILLER Counsel for the Claimant: P. Hamilton

Counsel for the Defendant: P. Cote Place of Hearing: Surrey , B.C. Date of Hearing: November 9, 10, 2015 Date of Judgment: November 19, 2015 [ 1 ] THE COURT : I found this case an interesting one. It was well-presented and argued by both counsel. In brief, this is a civil case about the claimant (ICBC) wanting me to order the defendant (Ms. Prasad) to pay them the money they paid out on her behalf because of a motor vehicle accident she had with Mr. Sahota on January the 1st, 2009.

They say she breached a condition of her insurance by "operating a vehicle while the insured is under the influence of intoxicating liquor... to such an extent that she is incapable of proper control of the vehicle." They also say her claim is "invalid" and her right to insurance money is "forfeited" because she wilfully made a false statement with respect to the claim. [ 2 ] The defendant counterclaims and, in addition to wanting me to dismiss ICBC's claim, wants me to order ICBC to pay her the losses she suffered in that accident under her collision insurance coverage.

Thus far, ICBC has refused to pay her anything because of the previously mentioned alleged breaches. [ 3 ] The defendant, Ms. Prasad, was returning to her home from a New Year's Eve banquet about 2:00 a.m., January the 1st, 2009. She was alone in her vehicle. The weather was apparently not great. It was cold and snowing and there was snow on at least some of the streets and snow banks at the side of some of those streets. [ 4 ] Mr. Sahota said that he was southbound on 128th Street just south of the No. 10 Highway driving his then fiancé/now wife home, which was a bit further south on 128th.

He said the defendant drove up from behind (also southbound) and struck the rear of his car. He said he got out and approached the defendant's vehicle and asked her for the usual information drivers exchange at the scene of such accidents. He said she had been travelling quite fast (maybe 50 kilometres per hour, he said) when she struck him. He said she refused to give him the driver's licence information that he wanted and he observed her placing what he said was a full packet of chewing gum in her mouth when he mentioned he was going to call the police.

He also said she then pulled out to go past him but ended up driving into a snow bank where she got stuck. He said she was intoxicated, or drunk, and that is what he told the 9-1-1 operator. He based that opinion on her driving, slurred speech and her saying she needed to urinate. He denied she was upset, denied she said she was going to turn around and denied that she spoke of being afraid of becoming stuck in the snow. He said, in cross-examination, that he believed she was drunk and crashed her car into him and then the snow bank. [ 5 ] Cst. Brassard testified by video.

She said that she arrived at the scene about 2:00 a.m. and found the defendant still in her car. When the officer opened the door, she smelled the odour of alcohol and she noticed the defendant's speech was slurred. The defendant repeated that she had to urinate. The officer arrested her for impaired driving and took her back to the office to have her breath tested for the presence of alcohol by then Cpl. Lecker (a very experienced and competent officer). [ 6 ] She told me how she noticed the defendant's balance and speech to be unsure and how she became agitated and had watery eyes.

She told me how the defendant requested to urinate and that she accommodated that request when they first got to the detachment before her breath was tested and again after things were all finished. She also told me how the defendant said her friends were bringing her liquor through the evening, though the officer did not ask how many drinks. [ 7 ] Then Corporal, now Sgt. Lecker testified to his taking samples of the defendant's breath and analyzing them in the then current breathalyzer machine. He described his experience in traffic matters and breathalyzer analysis; both were extensive.

He had been assigned to do the testing on what was expected to be a busy New Year's Eve. [ 8 ] He said just after 3:00 a.m., Cst. Brassard presented the defendant. He described the procedure he went through to ensure the testing was proper and reliable. He told me how the defendant had liquor on her breath, repetitive slurred speech, stumbling walk and red, watery eyes. He described her mood swings and attitude. He said this was all consistent with a person who was intoxicated by the consumption of alcohol.

Her behaviour towards him in the process being variable, irate, uncooperative, overconfident, taunting, yelling and screaming was all similarly consistent with alcohol impairment. He tested her breath twice and obtained two .14 readings. He said she kicked the door on the way out. He said she did not exhibit illness or injury, just histrionics and impairment. [ 9 ] He was very closely examined and cross-examined on his procedures and how he was sure the results he reported were accurate.

He was particularly examined on the issue of the external standard solution that is used to ensure everything is working properly. His testimony was clear, complete and forthright. He easily explained anything defence counsel suggested that indicated error. He also explained how any such issues were avoided by him that night and how he knew such to be the case. He also told me how the instrument itself would detect any of the suggested problems and would not perform if such problems were detected.

As stated, his testimony was clear and confident and I found it to be completely reliable, both as to his observations of the defendant's symptoms of impairment and to the reliability and credibility of his testing and the results. [ 10 ] Then Ms. Kirkwood testified for the claimant. She is a very experienced, professional and competent scientist with a long developed and practiced expertise in the area of the effects of alcohol consumption on people and the testing procedures used to determine such alcohol levels. She presented three reports to the court (Exhibits 4, 5 and 6).

Her testimony and her reports told me a number of things. [ 11 ] First, that the defendant had a blood alcohol reading of .157 at the time of driving and how she arrived at that conclusion. [ 12 ] Secondly, that the defendant would have consumed a minimum of 8.5 ounces of 40 percent by volume "hard liquor." Connected to this opinion was her opinion that had the defendant only consumed one drink, as she claimed (even if it was assumed to be

a rather large three-ounce drink), she would have registered zero milligrams of alcohol in 100 millilitres of blood at 3:00 a.m. when her breath was sampled and taken. [ 13 ] Thirdly, and finally for the purposes of this judgment, she told me what sort of effect this level of alcohol consumption and this level of alcohol in this person's system would have on their behaviour and, in particular, their ability to drive a motor vehicle.

The most relevant statements are contained in the three paragraphs in her report designated Exhibit 4 that begin: In my opinion, an individual with a BAC of 100 milligrams of alcohol in 100 millilitres of blood is impaired with respect to the operation of a motor vehicle. She goes on to say that: A BAC of 160 milligrams (as opposed to the 157 milligrams here) would increase the likelihood of a motor vehicle accident by 25 times. [ 14 ] The defendant testified that she was at a banquet earlier in the evening. She said she had one drink.

She says the problem that caused the accident was the weather and that she was not feeling any effects from the one drink that she had had earlier in the evening. She confirms she hired Mr. Michaels to represent her and that she instructed him to send the letters marked Exhibit 10 to ICBC in order to comply with the requirement to "file a written statement with the insurer" contained in s. 169 of the Insurance (Vehicle) Regulations . She confirms that she told him she had one drink.

It is, of course, that statement that the claimant says is false. [ 15 ] When I viewed the defendant's evidence alongside all the rest of the evidence I heard and when I examined it on its own, I concluded I did not believe it. The symptoms of impairment that she exhibited and that were testified to by Sahota, Brassard and Lecker were just not explained in a believable way by the defendant. I found her testimony about the accident to be unreliable and not credible. I did not believe her when she said she went through a major intersection controlled by lights without knowing it because of the weather.

It was obvious to me she went through it because she was drunk. I did not believe her when she said she just came on the Sahota vehicle stopped with the engine not running and the lights out and only hit it because of that surprise and the weather. There is no way she could have known if the engine was not running. Mr. Sahota's explanation of what happened was far more credible. I believe him and disbelieve her. [ 16 ] Defence counsel says Kirkwood's opinion evidence cannot be relied upon because it has not been proven that the external standard used by Sgt. Lecker that morning had not expired.

Without that assumption being proved, he correctly says, Ms. Kirkwood's opinion is flawed. However, I am satisfied that it was proved. It was proved by Lecker when he told me what he did prior to the testing of the defendant and it was proved when he told me how the machine would have detected an out-of-date solution and would have, in effect, shut down. It was proved when Ms.

Kirkwood wrote in her reports and testified to her examination of the relevant documents and concluded the solution was not out-of-date and that the tests were done reliably. [ 17 ] Therefore, I am satisfied at least on the balance of probabilities that the three conclusions I earlier referred to are true. [ 18 ] First, I have to ask myself if I am satisfied on the balance of probabilities and on the evidence that I have heard and accepted that the defendant did breach a condition of her insurance by operating her motor vehicle while under the influence of intoxicating liquor to such an extent that she was incapable of proper control of that vehicle.

I am so satisfied. [ 19 ] She ran into Mr. Sahota from behind when he was there to be seen travelling on the road. Her behaviour afterwards, including chewing the gum, her efforts to leave when Mr. Sahota said he was calling the police and then driving into the snow bank are all consistent with being under the influence of intoxicating liquor to the extent that she was incapable of properly operating her vehicle. Her explanations for that behaviour were inadequate and not believed by me. [ 20 ] That behaviour and Mr.

Sahota's opinion that she was drunk, along with the observations of the two police officers of her symptomology and their opinion that she was impaired, led me to the same conclusion. [ 21 ] Sgt. Lecker's observations and opinion were particularly weighty in this regard; again, that the defendant's explanations were inadequate and not believed. [ 22 ] The test results from the sampling of the defendant's breath, as interpreted by Ms. Kirkwood, also and again confirm my decision.

The attempt to cast doubt on those readings and opinions, though very skilfully done, do not cause me to conclude that they are unreliable tests or unreliable opinions. I have no hesitation in saying I accept the results and opinions as accurate. [ 23 ] Accordingly, I find the defendant did breach her conditions of insurance by being under the influence of intoxicating liquor to the prohibited degree. [ 24 ] I have also concluded that the statement made through Mr. Michaels to ICBC that she only had one drink is a false statement. [ 25 ] My earlier findings with respect to the tests performed by Sgt.

Lecker and the opinion of Ms. Kirkwood are credible and reliable, as well as my finding that the defendant was not credible and reliable, are the first steps in that analysis. Clearly, the defendant had many more drinks that night than one. [ 26 ] I then ask if telling your lawyer something to pass on to ICBC is making a statement with respect to the claim within the meaning of s. 75 of the Insurance (Vehicle) Act .

I have concluded it is. [ 27 ] Defence counsel says it must be a direct statement of the defendant; however, I am convinced that when somebody retains a lawyer to represent them in a situation like this and then instructs them to send the insurance company a letter with facts in respect of the claim that is "making a statement" within the meaning of s. 75. Clearly, the statement was a material one as the amount of intoxicant a claimant has ingested prior to an accident is of critical importance to an insurer when assessing how to handle such a claim.

Just as clearly, the statement was wilful, as the defendant told me she instructed Mr. Michaels to send this letter with this information and she

knew full well that she had much more than one drink and, therefore, the statement was false. [ 28 ] Accordingly, under s. 75, the defendant's claim is invalid and her right to insurance money under the insurance is forfeited. [ 29 ] Therefore, the claimant's action succeeds and the defendant's counterclaim is dismissed. [ 30 ] What am I setting the damages at? (DISCUSSION) [ 31 ] THE COURT: Okay. Well, that's how we'll do it then. $17,050.13 damages, $236 in fees and service, and I guess that's all I say for the moment, right? If you want to bring it back and argue about more later, I guess that's fine. If you know how to do that, go ahead and do it. (REASONS FOR JUDGMENT CONCLUDED)