COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
McIlvenna (litigation guardian of) v. Insurance Corporation of British Columbia, |
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2008 BCCA 289 |
Date: 20080707
Docket: CA034594
Between:
Connor Allen McIlvenna, an infant,
by his litigation guardian, Shawne McIlvenna
Respondent
(Plaintiff)
And
Insurance Corporation of British Columbia
Appellant
(Defendant)
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Before: |
The Honourable Madam Justice Huddart |
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The Honourable Madam Justice Kirkpatrick |
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The Honourable Mr. Justice Tysoe |
| G. P. Brown |
Counsel for the Appellant |
| S. E. Gibson and I. Kordic |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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April 29, 2008 |
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Written Submissions Received: |
May 21, 2008 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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July 7, 2008 |
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Written Reasons by: |
| The Honourable Mr. Justice Tysoe |
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Concurred in by: |
| The Honourable Madam Justice Huddart The Honourable Madam Justice Kirkpatrick |
Reasons for Judgment of the Honourable Mr. Justice Tysoe:
Introduction
[1] This appeal raises two issues in connection with insurance coverage available to the respondent in this appeal, who is the plaintiff in the action, after he was injured in a collision between the bicycle he was riding and a motor vehicle.
[2] The first issue is whether the claims made by the plaintiff in this action are governed by the Limitation Act, R.S.B.C. 1996, c. 266, or section 103 of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 (the “Regulation”), now the Insurance (Vehicle) Regulation, B.C. Reg. 166/2006. The Limitation Act contains provisions for the postponement of the running of limitation periods while a potential plaintiff is a minor and, if it applies, this action is not statute-barred. If the claims are covered by section 103, which establishes a limitation period that cannot be postponed, the action is statute-barred and must be dismissed.
[3] The second issue is whether it is plain and obvious that the Insurance Corporation of British Columbia (“ICBC”) did not owe a duty of care to the plaintiff to advise him or his mother of his entitlement to benefits under Part 7 of the Regulation and any limitations on his entitlement. If this is plain and obvious, the action is bound to fail and should be dismissed.
The Pleadings
[4] These issues came before the court on an application by ICBC under Rules 34 and 19(24)(a) of the Rules of Court. As a result, both issues are to be determined on the basis of the statement of claim (as it may be amended) in the sense that the facts asserted in the statement of claim are assumed to be true. My recitation of the facts comes from the statement of claim, unless otherwise indicated, and the facts have not been accepted as having been proven.
[5] On 14 September 1995, the plaintiff, aged 6 at the time, was involved in an accident when the bicycle he was riding and a motor vehicle collided. The plaintiff suffered injuries, including a head injury.
[6] The plaintiff fell within the definition of “insured” in Part 7 of the Regulation and was entitled to insurance benefits from ICBC in respect of injuries suffered in the accident (“Part 7 benefits”). The accident was reported to ICBC and an adjuster was appointed to handle the claim.
[7] It is asserted in the statement of claim that ICBC knew the plaintiff was suffering from a brain injury and knew or ought to have known that the plaintiff and his mother were relying on the adjuster to advise of (i) his entitlement to Part 7 benefits, (ii) any information or documents required for the claim, (iii) the various treatments and therapies available for a brain injury suffered by a child, and (iv) any limitation periods.
[8] On 4 April 2003, ICBC refused to provide or fund goods and services that had been recommended for the plaintiff’s brain injury. Upon being subsequently contacted by legal counsel, ICBC advised of its position that Part 7 benefits were no longer available to the plaintiff because legal action had not been commenced in a timely way.
[9] The action was commenced on 17 September 2003. The statement of claim alleges that ICBC was negligent in adjusting the plaintiff’s claim for Part 7 benefits and that ICBC breached its duty to act in good faith.
The Limitation Provisions
[10] Section 103, contained in Part 7 of the Regulation, read (prior to B.C. Reg. 166/2006) as follows:
103. No person shall commence an action in respect of benefits under this Part unless
(a) he has substantially complied with the provisions of sections 97 to 100 that are applicable to him, and
(b) the action is commenced within 2 years after
(i) the date of the accident for which the benefits are claimed, or
(ii) where benefits have been paid, the date he received the last benefit payment under this Part.
[11] I gather there was affidavit evidence before the chambers judge to the effect that ICBC had made payment of some Part 7 benefits for the plaintiff in the months following the accident. The last of these payments was said to have been made on 20 December 1995.
[12] On the basis of the facts contained in the statement of claim, the last date on which the commencement of the action would have been permitted under section 103 was 14 September 1997. If the statement of claim was amended to assert the payment of the Part 7 benefits, the last date for the commencement of a permissible action under section 103 would be 20 December 1997. The action was not commenced before either of those dates and if section 103 applies to the plaintiff’s claims against ICBC, the action is not permitted and should be dismissed.
[13] In contrast, if section 103 does not apply, the running of time of the limitation period under the Limitation Act was postponed during the period the plaintiff was a minor, and the action was commenced prior to the expiry of that limitation period.
The Chambers Decision
[14] In his reasons for judgment (2006 BCSC 1559), the chambers judge first held that section 103 of the Regulation does not apply to the plaintiff’s claim for damages for the worsening of his condition as a result of ICBC’s alleged negligence. He noted, however, that the statement of claim alleged both a loss of benefits and a loss of the opportunity for earlier intervention. He believed that the evidence at trial would be necessary to determine the proper characterization of the action as one or the other. As it was not possible to make a decision purely on a point of law that would substantially dispose of the action, the judge dismissed ICBC’s application for a determination of a point of law as to the applicability of section 103.
[15] The chambers judge next held that it was not plain and obvious that ICBC did not owe a duty of care to advise the plaintiff (or his mother) of his entitlement to Part 7 benefits, including advice about the kind of therapy and treatment that could be funded and any limitations on his entitlement. This holding meant that the plaintiff’s claim against ICBC for its alleged failure to provide such advice would be able to proceed to trial for adjudication.
[16] The third holding of the chambers judge was that the plaintiff’s claim against ICBC for its alleged failure to recommend or initiate medical treatment or therapy did not disclose a cause of action. This holding against the plaintiff was not challenged by way of a cross appeal.
Discussion
(a) Limitation Issue
[17] The point of law to be determined pursuant to Rule 34 was stated in ICBC’s notice of motion as follows:
Whether all the Plaintiff’s claims in this action are in respect of benefits under Part 7 of B.C. Reg 447/83, the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act (the “Regulation”), and are therefore subject to the limitation period prescribed by s. 103(b)(ii) of the Regulation.
The notice of motion requested that the action be dismissed should it be determined that the claims are subject to the section 103(b)(ii) limitation period.
[18] In asserting that all of the plaintiff’s claims are subject to the section 103(b)(ii) limitation provision, ICBC relies on the broad meaning to be given the words “in respect of” in the opening line of the section. In Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at 39, 144 D.L.R. (3d) 193, the following was said:
The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject matters.
Nowegijick involved the interpretation of the words “in respect of” contained in a section of the Indian Act, R.S.C. 1970, c. I-6, for the purpose of determining whether income by the appellant was exempt from taxation under the Income Tax Act, 1970-71-72 (Can.), c. 63.
[19] The above passage from Nowegijick has been applied to a claim by an insured against an insurer. In Arsenault v. Dumfries Mutual Insurance Co. (2002), 57 O.R. (3d) 625 (C.A.), the plaintiff was claiming damages for the alleged “bad faith” conduct of the defendant in terminating no-fault benefits. The Insurance Act, R.S.O. 1990, c. I.8, provided that a proceeding “in respect of no-fault benefits” must be commenced within two years after the insurer’s refusal to pay the benefit claimed. In holding that the plaintiff’s claim was subject to the limitation provision, the Ontario Court of Appeal observed that the above passage from Nowegijick was generic and equally applicable to the limitation provision in the Insurance Act.
[20] Arsenault has been followed in this province by Barrow J. in Young v. Insurance Corp. of British Columbia, 2006 BCSC 211, 35 C.C.L.I. (4th) 131. As in Arsenault, the plaintiff framed her claim as a breach of the duty of good faith (as well as a breach of an asserted duty of fairness). Barrow J. held that the plaintiff’s claims were, in substance, claims in respect of benefits under Part 7 and were subject to the limitation period contained in section 103 of the Regulation.
[21] In the present case, the chambers judge distinguished Arsenault and Young on the basis that the plaintiff’s claim against ICBC is not for the payment of Part 7 benefits or damages equivalent to those benefits. The judge held that section 103 did not apply because the plaintiff is advancing a broader claim based on an alleged worsening of his condition as a result of alleged negligence in the handling of his claim. I agree with the conclusion of the chambers judge that section 103 does not apply to the plaintiff’s claim for damages resulting from ICBC’s alleged negligence to the extent that such damages do not include lost benefits or the equivalent thereof.
[22] In interpreting section 103, it must be borne in mind that Part 7 of the Regulation constitutes a policy of insurance between ICBC, as insurer, and the plaintiff, as insured: see Baluk v. Swiderski (1996), 83 B.C.A.C. 1, 38 C.C.L.I. (2d) 1 at para. 2; Fredrickson v. Insurance Corp. of British Columbia, [1985] 5 W.W.R. 342 at 352, 64 B.C.L.R. 301 (S.C.); and Kraeker Estate v. Insurance Corp. of British Columbia (1992), 93 D.L.R. (4th) 431 at 433, 69 B.C.L.R. (2d) 145 (C.A.). Although the plaintiff argued at the hearing of this appeal that Part 7 of the Regulation should be interpreted as social welfare legislation, I agree with counsel for ICBC that the contractual nature of the relationship is clearly established in the case law and legislation.
[23] Section 103 is a contractual provision limiting the ability of the insured to sue the insurer. It is not a limitation provision contained in a statute other than the Limitation Act that expressly applies to all causes of action against a specified category of persons (for example, section 285 of the Local Government Act, R.S.B.C. 1996, c. 323, in relation to actions against municipalities).
[24] Part 7 of the Regulation is a contract pursuant to which the insured is entitled to certain benefits from the insurer, ICBC. Section 103 is a limitation on the right of the insured to enforce his or her contractual right to the benefits by way of action. In my opinion, section 103 must be interpreted in the context of this contractual arrangement, and should not be construed broadly to apply to all causes of actions that the insured may have against ICBC as a result of their dealings.
[25] I would adopt the recent approach of this Court to the interpretation of a contract where the determination of the intention of the parties may be no more than a fiction. In Gibbens v. Co-operators Life Insurance Company, 2008 BCCA 153, Madam Justice Newbury wrote:
[31] In giving due regard to precedent, I do not intend to depart from the cardinal rule that in interpreting contracts, including contracts of insurance, the overriding objective is to give effect to the parties’ intentions at the time they entered into the contract: see Brissette Estate v. Westbury Life Insurance Co. [1992] 3 S.C.R. 87 at 92; Martin, [v. American International Assurance Life Co., 2003 SCC 16, [2003] 1 S.C.R. 158], at para. 16. Thus the first enquiry is always into the factual matrix surrounding the making of the contract, and two contracts with identical terms but different factual contexts may be construed differently. But where a form contract such as an insurance policy prepared by one party is signed without negotiation by the other, or where (as in this case) the insured is simply the beneficiary under a policy negotiated by his union, the notion of the insured’s intention may be no more than a fiction. For this reason, a court may seek to impose what it regards as a “commercially realistic” interpretation that assumes the author of the contract would have been aware of judicial authority and that the court should not create confusion on a question of law in the insurance industry without good reason. (See [McGillivray and Parkington on Insurance Law (10th ed., 2003)], at §11-3.)
[26] The notion of an insured’s intention is an even greater fiction when the contractual terms are imposed by statute. The court must therefore seek to impose a commercially realistic and viable arrangement on the assumption that this is what the parties would have intended had they turned their minds to the issue (see C. Brown, Insurance Law in Canada, looseleaf, vol. 1 (Scarborough: Thomson Carswell, 1999), p. 8-8).
[27] In the absence of a clear expression to the contrary, parties to a contract can be presumed to intend that limitations included in the contract apply to claims on the contract but would not extend to non-contractual claims such as tort claims. It is my view that section 103 does not apply to a non-contractual claim against ICBC as long as the claim is not an indirect attempt to enforce the contractual right to benefits (or, in the words of Madam Justice Abella in Arsenault at paragraph 21, as long as the characterization of the claim is not “merely an attempt to circumvent [section 103] through the guise of linguistic reformulation”). In this case, although ICBC’s alleged breach of duty resulted in the plaintiff failing to obtain Part 7 benefits, the loss of those benefits is not the damage claim being pursued by the plaintiff. Rather, the plaintiff is seeking damages for his worsened condition as a result of his failure to obtain those Part 7 benefits.
[28] I would not accede to ICBC’s submission with respect to the stated point of law under Rule 34.
(b) Negligence Issue
[29] The second aspect of ICBC’s application was a request pursuant to Rule 19(24)(a) that all or part of the statement of claim be struck out. Rule 19(24)(a) authorizes the court to strike out the whole or any part of a pleading on the ground that it does not disclose a reasonable claim. The test is whether it is plain and obvious that no reasonable cause of action is disclosed: see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321.
[30] ICBC says that it is plain and obvious that it did not owe a duty of care to the plaintiff to advise him or his mother regarding the coverage available to them under Part 7 of the Regulation (including advice about the kind of therapy and treatment that could be funded and the existence of the section 103 limitation period). ICBC submits that the case authority primarily relied upon by the chambers judge on this issue, Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191, is distinguishable and that the matter is governed by the decision of this Court in Planidin v. Insurance Corp. of British Columbia, 2004 BCCA 498, 36 B.C.L.R. (4th) 105.
[31] ICBC also relies on Esau v. Co-operators Life Insurance Co., 2006 BCCA 249, 55 B.C.L.R. (4th) 11, and Pekarek v. Manufacturers Life Insurance Co., 2006 BCCA 250, 55 B.C.L.R. (4th) 1, for the proposition that an insurer does not have an obligation to advise an insured of the existence of a limitation period. ICBC further cites Hamilton v. Chris Marion Holdings Ltd. (c.o.b. Servicemaster of Ottawa), [1981] I.L.R. 1-1398 (Ont. H.C.J.), aff’d [1982] O.J. No. 2034 (C.A.) (QL); Bullock v. Trafalgar Insurance Co. of Canada (1996), 9 O.T.C. 245 (Gen. Div.); and Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, 256 D.L.R. (4th) 674, for the proposition that the law does not impose a duty of care on insurers independent of the insurance policy governing their dealings with insureds. Before reviewing these authorities, I will summarize the law relating to the approach to be taken in connection with the imposition of a duty of care.
[32] In considering whether it was plain and obvious that ICBC did not owe a duty of care to the plaintiff, the chambers judge referred to Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, which reaffirmed that the two-stage test set out in Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.) should be utilized to decide if a duty of care exists for the purpose of founding a claim in negligence. The test was recently summarized by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129.
[33] The court must first determine whether the relationship between the parties discloses sufficient foreseeability and proximity to create a prima facie duty of care. The second part of the test involves a consideration of whether there are any broad policy factors that would serve to negative the duty of care (Hill ¶ 20).
[34] In determining whether a prima facie duty of care exists, the harm that occurred must have been a reasonably foreseeable consequence of the defendant’s act and there must be sufficient proximity between the parties such that there are no considerations involving the relationship between the parties that would make it unjust or unfair to impose a duty of care (Cooper ¶ 30, 34; Hill ¶ 23). These considerations include such factors as expectations, representations, reliance and the interests involved (Cooper ¶ 34; Hill ¶ 24).
[35] Sufficiently proximate relationships are identified through the use of categories, and, in determining whether there is sufficient proximity in the relationship, the court should first look to see if any of the existing categories in which proximity has been found are equivalent to the relationship between the plaintiff and the defendant (Cooper ¶ 31; Hill ¶ 25). The existence of a contract between the parties is not, by itself, a sufficient consideration to refuse to recognize a duty of care (Central Trust Company v. Rafuse, [1986] 2 S.C.R. 147, 31 D.L.R. (4th) 481).
[36] The chambers judge relied on Fletcher v. Manitoba Public Insurance Co., supra, to support his finding at paragraph 34 of his reasons for judgment that there is a “well-established category of negligent misstatement in circumstances where one party is reasonably relying on another’s superior knowledge or expertise.” In that case, the insureds sued a government-owned insurance company for failing to advise them at the time they purchased their insurance of the existence of underinsured motorist coverage. The Supreme Court of Canada held that the insurance company did owe a duty of care to inform its customers of all available insurance coverage. ICBC says that this decision is simply an application of the principle set out in Fine’s Flowers Ltd. v. General Accident Assurance Co. of Canada (1977), 17 O.R. (2d) 529 (C.A.), that insurance brokers owe a duty of care to provide information about available coverage to individuals purchasing insurance.
[37] The decision upon which ICBC primarily relies on this aspect of the appeal, Planidin v. Insurance Corp. of British Columbia, supra, was apparently not brought to the attention of the chambers judge. In that case, the insured’s automobile was damaged while in the care of repairers. The insured had purchased collision coverage from ICBC and sued it for failing to advise her when she reported the damage to it that she could make a claim against ICBC on her collision coverage in addition to suing the repairers. The insured was putting forward the claim against ICBC as a breach of the duty of good faith. In upholding the decision of the chambers judge to strike out the claim against ICBC, the Court said the following:
[8] The suggestion that an insured person may look to an insurance underwriter to advise on coverage is not to be found in the authority cited on this appeal. Insurance brokers and lawyers advise on coverage; underwriters respond to such claims as they are contractually bound to pay. The relationship between insured and insurer is contractual. Contracts of insurance contain obligations to indemnify in return for the premium paid, not obligations to advise on claims that could be made.
[9] It is not said that ICBC offers to provide advice on coverage to those it insures, nor is it said that there is any statutory or contractual provision requiring it to do so. Adopting the suggestion that ICBC is obliged to give advice on coverage to those it insures would be to impose an obligation having no contractual basis.
[10] … there is no basis in law on which it can be said that the insurer's obligation to act in good faith carries with it an obligation to give advice on coverage — on the claims that can be made against it — particularly where no inquiry in that regard is made and no service of that kind is said to be offered.
I do not agree with the suggestion of ICBC that Planidin is indistinguishable from the present case and is binding on this division of the Court. The above comments were made in the context of a claim of breach of an insurer’s duty of good faith. The Court was not considering whether ICBC owed a duty of care to the insured for the purpose of a negligence claim.
[38] I now turn to the decisions upon which ICBC relies for the propositions that an insurer does not have an obligation to advise an insured of a limitation period and that the law does not impose a duty of care on insurers independent of the insurance policy governing their dealings with insureds.
[39] Esau v. Co-operators Life Insurance Co., supra, and Pekarek v. Manufacturers Life Insurance Co., supra, were companion decisions issued at the same time by this Court. Both cases related to disability insurance. In Esau, the insurer was resisting the claim and, in Pekarek, the insurer terminated payments after initially accepting the claim. Both actions were commenced after the expiration of the limitation period. In upholding the dismissal of the actions as being statute-barred, the Court held that the insurers were not required to advise insureds as to the existence of limitation periods. In the present case, the chambers judge distinguished these decisions on the basis that the two insured parties knew or ought to have known that the insurer was taking a position adverse to their position. I would add the observation that in those two cases the Court was considering whether the insurer should be precluded from relying on the enforcement of the limitation period and was not determining whether a prima facie duty of care existed.
[40] In Hamilton v. Chris Marion Holdings Ltd., supra, the plaintiff’s house suffered water damage. The insurance agent who had placed the insurance assigned the claim to the defendant as an independent insurance adjuster. During a meeting to discuss the repairs to the house, the defendant suggested to the insured that a gun collection in the house be removed for cleaning and safekeeping. The gun collection was taken to the premises of the contractor hired to restore the house, and it was stolen from those premises. The insured sued the independent insurance adjuster for failing to advise that her household insurance would not cover a theft of the gun collection if it was not located inside the house. In dismissing the claim, the court held that there was not a special relationship imposing a duty on the independent insurance adjuster and that the adjuster was equivalent to a good Samaritan.
[41] The Hamilton decision was followed in Bullock v. Trafalgar Insurance Co. of Canada, supra. The insured’s car had burst into flames as he was driving out of a parking lot, and he made a claim on his insurance policy. The insurer hired an independent adjuster to investigate the fire. Relying on the adjuster’s investigation, the insurer denied the insured’s claim on the basis that the fire had been deliberately set. Applying Hamilton, the court held that the adjuster did not owe a duty to the insured to conduct a full and fair investigation and dismissed the action as against the adjuster.
[42] A similar duty was asserted in Elliott v. Insurance Crime Prevention Bureau, supra. The plaintiffs made a claim on their insurance after their house was destroyed by fire. The insurer engaged an independent adjusting firm to investigate and adjust the loss. The adjuster asked the Insurance Crime Prevention Bureau to investigate the fire, and a deputy fire marshal also became involved and prepared a report. The insurer denied coverage on the basis of the conclusion of the investigations that the fire had been deliberately started. The plaintiffs sued the insurer and recovered their loss, but were not able to prove bad faith on the part of the insurer and failed in their attempt to obtain damages for inconvenience and mental distress, aggravated damages, punitive damages and solicitor and client costs. The plaintiffs then sued the deputy fire marshal and Insurance Crime Prevention Bureau and some of its employees for those damages.
[43] The Nova Scotia Court of Appeal held that there was no proximity between the plaintiffs and the deputy fire marshal and that, while there was proximity between the plaintiffs and the insurance investigators, two policy reasons dictated against the imposition of a duty of care on the investigators. The first reason was that the plaintiffs had their contractual remedy against the insurer, which would include, in a proper case, claims for aggravated and punitive damages. The second reason was that the imposition of a duty of care would distort the legal relationships among the insured, the insurer and the investigators, and could potentially undermine the ability of insureds and insurers to properly deal with insurance claims.
[44] I do not find Hamilton, Bullock or Elliott to be analogous to this case. In each of Hamilton and Bullock, the adjuster’s duty was assessed independently of the adjuster’s position as an agent of the insurer. In none of those cases did the court consider the relationship between an insured and an insurer, as is the case in the present situation. In addition, in Bullock and Elliott, each plaintiff made a claim of negligent investigation, not an allegation of a failure to properly advise with respect to the insured’s entitlements under the policy of insurance.
[45] I now return to the Anns two-stage test. The first stage involves foreseeability and proximity. The foreseeability requirement is satisfied in this case because the harm alleged by the plaintiff was a reasonably foreseeable consequence of ICBC’s alleged failure to give advice with respect to the Part 7 benefits.
[46] As stated above, the court must look to existing categories in which proximity has been found and determine whether any of those categories is the same as, or analogous to, the relationship between the parties. One of the recognized categories is the relationship between a government-owned insurer and an insured. The Supreme Court of Canada held in Fletcher that the insurer owed a duty of care to inform its customers of all available insurance coverage.
[47] ICBC argues that Fletcher is distinguishable because it involved the purchase of insurance, unlike the present situation dealing with a claim on the insurance policy, and that the only duty owed by the insurer in such a situation is the duty to act in good faith. It is true that the relationship between an insurer and an insured becomes more adversarial when a claim is made on the insurance, and the expectation of reliance would be correspondingly lessened.
[48] The situation in the present case is not the same as when an insured person purchases the insurance policy from an insurer. The plaintiff did not apply for the Part 7 insurance. The plaintiff qualifies as an insured under Part 7 because he was “a member of the household of a person named in an owner’s certificate” or “a cyclist or pedestrian who collides with a vehicle described in an owner’s certificate” (clauses (c) and (e) of section 78 of the Regulation). There was no opportunity for the plaintiff to have received advice of the nature of the Part 7 benefits before the accident in question. The question becomes whether it is plain and obvious that the present situation is not sufficiently analogous to the situation in Fletcher for the court to find that there is the required proximity to create a prima facie duty of care or that the broad policy considerations outside the relationship of the parties negative the duty of care.
[49] The Supreme Court of Canada said the following in Hunt v. Carey Canada Inc., supra at 980, about the requirement of the test under Rule 19(24)(a) that it be plain and obvious that no reasonable cause of action is disclosed:
Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).
[50] I would not go as far as the chambers judge did in holding that the duty of care alleged by the plaintiff fits within the category already recognized in Fletcher. However, in my opinion, it is not plain and obvious that the present situation is not sufficiently analogous to Fletcher for the court to recognize the duty of care in the present case. Nor is it plain and obvious, in the event Fletcher is not considered analogous, that there is insufficient proximity between the parties to give rise to a prima facie duty of care to provide advice with respect to the Part 7 benefits. It was not argued before us that broad policy considerations outside of the relationship between the parties negative the duty of care. The action is not certain to fail, and evidence at trial regarding ICBC’s policies and practices with respect to Part 7 benefits may inform the proximity issue.
[51] I would not give effect to ICBC’s submission that the court should strike out the allegation in the statement of claim that ICBC owed a duty of care to advise the plaintiff or his mother of the plaintiff’s entitlement to benefits under Part 7 of the Regulation and of any limitations on his entitlement.
Conclusion
[52] For these reasons, I would dismiss the appeal.
“The Honourable Mr. Justice Tysoe”
I agree:
“The Honourable Madam Justice Huddart”
I agree:
“The Honourable Madam Justice Kirkpatrick”