ICBC Privacy Breach, Royal Bank Sues over Visa Bill and Looses, and a Tree Dispute

Can corporations truly safeguard your privacy, or are we all at risk? Join us as we tackle this pressing question with Michael Mulligan from Mulligan Defence Lawyers. In one of the most startling cases in recent memory, we dissect how an employee at the Insurance Corporation of British Columbia (ICBC) sold personal information, resulting in arson and shootings. You’ll learn about the class-action lawsuit that followed and the judicial system’s decision to award $15,000 per affected individual despite ICBC’s efforts to minimize compensation. Plus, we dive into the unsettling case of a widow sued by the Royal Bank of Canada for her late husband’s Visa bill despite having insurance meant to cover the debt, shedding light on the critical issue of consumer protection.

Ever wondered why resolving disputes with neighbours often ends up in a legal quagmire? We’ll explore this topic through the lens of a real-life tree dispute between neighbours, revealing the limitations of provincial court judges and the complexities of such cases. Michael Mulligan offers invaluable insights into why it’s crucial to resolve conflicts amicably rather than dragging them through lengthy court battles. Whether it’s about border trees or shared responsibilities, you’ll gain a new perspective on managing minor conflicts without escalating them into costly legal entanglements.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Transcript of the show:

 

Legally Speaking June 6, 2024

 

Adam Stirling [00:00:00] Time for our regular segment, Legally Speaking, joined by Michael Mulligan with Mulligan Defence Lawyers. Morning, Michael. How are we doing?

Michael T. Mulligan [00:00:07] Hey. Good morning. I’m doing great. Always good to be here.

Adam Stirling [00:00:09] Some interesting stories on the agenda this week, including an update on a story that we previously discussed regarding the Insurance Corporation of British Columbia and personal privacy.

Michael T. Mulligan [00:00:21] Indeed, it’s a troubling case. It’s been working its way through the court system for quite some time now, and the background of it, and this all started back in 2011. Was that the ICBC claims adjuster was selling personal information to, a very problematic individual, to in order to identify, the addresses and owners of cars which were parked around the Justice Institute. And that’s where they would be doing training for police, and others.

Adam Stirling [00:00:57] Yes.

Michael T. Mulligan [00:00:58] And the, individual who was purchasing the information, was, eventually engaged in really troublesome, he and others, he was using the personal information that he was purchasing from the ICBC employee, in order to go and commit arsons and shootings, at the homes of the, people who had parked near the Justice Institute. And ultimately that individual, that was purchasing the information from the ICBC employee, engaged in 13 incidents of arson and shootings, at the homes of these people. Very problematic that, that person is described as having a drug induced paranoid belief that he was being targeted and controlled by the Justice Institute.

Adam Stirling [00:01:45] hm.

Michael T. Mulligan [00:01:46] Ultimately, that person was convicted of, he pled guilty, to 18 different criminal charges and was sentenced to 13.5 years in prison back in 2016. The next issue then became the ICBC claims adjuster who was selling the information, apparently, for $25 per person. And the claims adjuster wound up being charged as well. He wound up on probation. And then the next step was a civil claim against ICBC. And the basis of the civil claim was alleging that ICBC had responsibility for what their employees did, which is not a particularly novel concept. And that was commenced as a class action on behalf of 78 individuals who had their personal information improperly accessed by the claims adjuster. And it was many cases sold for $25 bucks a shot.

Adam Stirling [00:02:54] hmm.

Michael T. Mulligan [00:02:54] And that concept is vicarious liability. The idea is that if you hit an employee, you’re not properly supervising them, and they’re off doing something like this. You, the employer, can wind up on the hook for it. So that’s the basis of it.

Adam Stirling [00:03:06] Interesting.

Michael T. Mulligano-fault:07] ICBC, this is I think, one of the really interesting things about this is it demonstrates the, culture of ICBC, which ties in with the changes recently about moving to a no fault system and what that means and what I mean by the culture of it. It’s demonstrated by this piece of litigation over the privacy breach by the insurance adjuster, ICBC insurance adjuster, and ICBC, fought this thing tooth and nail. They took it to the Court of Appeal four times, appealing various parts of this claim. And what ICBC eventually settled on is they thought that they should have to pay no more than $500 to each of the people affected by this privacy breach occasioned by their employee. And the decision which just came out, from the judge after these various appeals back and forth, fighting over various things, going to the Court of Appeal, was a conclusion that that was wholly inadequate. And the judge awarded $15,000 per class member for having their information accessed in this way, permitting that very troublesome arson, and shooting attacks. And I guess what that really demonstrates is the importance of there being a remedy, whereby somebody who is aggrieved can go to court and have an independent judge make the decision at the end of the day. And that has been in ICBC case as a result of no fault, taken away. Right. And so people who are now subject to decisions by ICBC are not left with that remedy. And when you have an organisation like that, who has what amounts to almost unfettered discretion to make decisions about people’s lives, where the only remedy or things like appealing to a civil resolution tribunal with a bunch of people on it who are short term government, contractors, or making complaints to an ombudsperson. You can appreciate that when you combine that with an institution like ICBC that has a demonstrated, culture, of taking positions like that demonstrated in this case, it is not hard to understand why we are seeing repeated examples of people who are, seriously hurt and just are treated terribly and don’t wind up with the compensation that they require. And so it’s hard to imagine perhaps a clearer case of that than this, when you have an employee of ICBC who is engaged in this conduct selling personal information causing just this awful series of crimes. Once those people had been identified and ICBC taking the position that the appropriate compensation for each of them would be $500 bucks. And so that’s the end of that, hopefully this saga, hopefully there isn’t some effort to go to the Court of Appeal a fifth time complaining about the $15,000 award for all of these people who went through all of this and hopefully that is at least after much litigation, the final chapter of this very unfortunate and dangerous circumstance that flowed from privacy breaches.

Adam Stirling [00:06:39] Our next stories, particularly, I think it’s unusual. Or at least I hope it’s unusual. It’s troubling regarding a claim brought against a 74-year-old widow on the matter of the payment of her late husband’s visa bill.

Michael T. Mulligan [00:06:54] Yes, indeed. And I must say, this is one of those cases when you read that, it gives you, at least gives me cause for a bit of a smile, in terms of just a little bit of justice coming out in the decision and the background of it is the Royal Bank of Canada, issued a visa card to a the husband of this woman many years ago and over a period of time, eventually there was a balance on the card and very sadly, the, husband who applied for it, passed away in 2019. And at that time there were some $25,000 owing on the card. But the Royal Bank of course calculated the 20% interest bill, 19.99%, and was therefore suing the 74-year-old widow for $51,764.09. And there were several elements to it. One element to it, the widow, realized that her late husband had been paying for balance protector insurance, on the credit card for many years on a yearly basis. That was something which was supposed to pay off the credit card if somebody died. But I guess the widow didn’t know about that and so hadn’t made a claim in time for that kind of insurance. She was claiming that the bank should have told her the bank’s position was that they had no duty to assit her because this was a third-party insurer, even though the bank sold the insurance. That part of the claim didn’t get anywhere for the widow. But the bank then ran into a bit of trouble and as the judge in this case pointed out, when you are someone who is the person doing the suing, you are the person who bears the evidentiary burden of proving all the things you need to prove. It’s not for the other person to disprove it. That’s similar to a criminal case, but in a civil case, of course, you only need to prove it on a balance of probabilities. And here one of the central issues was what is the widow’s status in relation to the credit card? And the Royal Bank took the position that the widow was a co- applicant for the credit card.

Adam Stirling [00:09:09] hmm.

Michael T. Mulligan [00:09:09] And that’s a concept in the cardholder’s terms. And the bank relied on things like well we send out notices of things from time to time. But what the bank did not have was the original application for the credit card.

Adam Stirling [00:09:24] hmm.

Michael T. Mulligan [00:09:24] And they find no cogent explanation for why they didn’t have that.

Adam Stirling [00:09:28] Bizarre.

Michael T. Mulligan [00:09:29] Their witness, their witness was somebody who worked at the bank but simply couldn’t find the original application form.

Adam Stirling [00:09:36] huh.

Michael T. Mulligan [00:09:36] And the credit card card completes not only a co applicant, but another concept of a, “authorized users,” which is somebody who is permitted to use a credit card like what has been issued in their name, but they’re not responsible for the balance. So if somebody’s got, you know, a credit card for their child or somebody else, you know that doesn’t necessarily make them responsible for the payment. It could be just the person who’s, you know, applied for the credit card.

Adam Stirling [00:10:04] hmm.

Michael T. Mulligan [00:10:04] And the judge, first of all, found that the bank just wasn’t in a position to prove that the widow had ever applied for this credit card or was a co applicant. In fact her evidence was. No, I didn’t have anything to do with that. My husband did that. And so the judge found, first of all, that the Royal Bank had just failed to prove that she was a co applicant for it. They just didn’t have any paperwork to prove that. And pointing to various bills and things being sent out also wasn’t sufficient. Furthermore, there’s a provision in the co-lease agreement that the judge obviously read very carefully. That provides that if there are increases to the credit limit, there has to be consent from the parties in order for them to be liable for it. Right. Even if you somebody who a co applicant to a credit card under this agreement, if one of them managed to increase the credit limit but didn’t get your approval to do so, you would be on the hook for the increased debt, they might run up. And again, on that point, the judge found that the world Bank had just not produced any evidence to show that the widow had agreed to the various credit increases that had occurred over the life of the credit card. And so she wasn’t for that reason as well she wasn’t responsible for the debt. And so the outcome of all of this after some Supreme Court litigation, is that the Royal Bank of Canada, failed, to meet its burden to prove that the 74-year-old widow was a co applicant to this credit card. And the net result and a little piece of justice is that she will not be on the hook for the $51,000 the Royal Bank was trying to get from her. And so I had a useful case, both in terms of just bearing in mind who has to prove what and not necessarily accepting. The conclusion that a large institution has come to. And if you are a large institution, you better keep some records around or else you might find that you’re unsuccessful in trying to collect money. So that’s the little, justice smile from the failure of the Royal Bank and the 74-year-old widow with her, deceased husband’s visa card.

Adam Stirling [00:12:17] Legally speaking, with Michael Mulligan. For Mulligan Defence Lawyers, a perfect time for a break will continue right after this.

[00:12:23] COMMERCIAL.

[00:12:24] Back on the air here at CFAX 1070 as we continue with Legally Speaking, joined as always by Michael Mulligan with Mulligan Defence Lawyers. Up next, Michael, let’s see. We have, is it three litigants, small claims court and a precious, precious little amount of success, if any?

Michael T. Mulligan [00:12:42] That’s exactly right. And I guess this is a case involving three neighbours suing each other over trees and trespassing and a fence. And I guess the first legal tip for everyone listening would be this. Don’t sue your neighbours in small claims court over trees or fences. Sort it out. And so this is somebody who didn’t have the benefit of that advice and decided to commence small claims court litigation over exactly those sorts of issues.

Adam Stirling [00:13:14] Very well.

Michael T. Mulligan [00:13:15] And there there are in addition to that pearl of wisdom and as well I should say, this case may also offer some insight into, why there may be a decrease the number of applicants to take positions as provincial court judges who can spend their days doing things, including sitting on small claims neighbours disputes over trees and tree roots. So there is that, but there are some legal concepts embedded in that decision which I think people should be aware of. And they include the concept of, concepts involving who’s responsible for what, with trees and what judges in small claims court are in fact able to do. And starting with the issue of what judges in small claims court are able to do, legal authority for judges is not of course unlimited and in particular for provincial court judges where all of their authority has to be found somewhere in statute. Right. Unlike the B.C. Supreme Court, which is sometimes referred to as a court of inherent jurisdiction.

Adam Stirling [00:14:23] hmm.

Michael T. Mulligan [00:14:23] Where some of their authority doesn’t derive from some piece of legislation somewhere, they are independent constitutional actors, and they do not rely in all respects on legal authority found in statute somewhere. Some things they can just do inherently, whether the legislature likes it or not. But with respect to provincial court judges, they have to find some, you know, some legal authority in statute somewhere to do something. And that includes their authority when they’re sorting out small claims’ disputes. And so these the provincial court, small claims division has authority to deal with disputes up to $35,000. And that’s actually, as we’ve mentioned before, a constitutional limitation. One of the reasons, one of the ways we preserve, the independence of the Superior Court, which has all kinds of constitutional protections, like when you can remove a judge and when you can’t, and so on, used to restrict legislatures abilities to just transfer all of their authority to someone else who could then boss around or fire or whatnot. But they have a jurisdiction up to $35,000, and they have some limited authority to require people to do specific things. But here for example one of the neighbours involved in this litigation was asking the provincial court judge to do things including to order a municipality to issue a permit to remove a tree. And that’s something that a provincial court judge just doesn’t have authority to do. And it was also trying to get an order to order one of the neighbours to apply for a permit to remove a tree. There’s also the authority to do that. So that couldn’t go anywhere. And the neighbour was trying to get an order that the neighbour be ordered to hire a contractor to take out trees. You can’t do that either.

Adam Stirling [00:16:21] hmm.

Michael T. Mulligan [00:16:21] And so you can make a claim for money or damages. Right. And so the judge found, first of all, that list of various things that the plaintiff was asking the judge to do, he just couldn’t do them. And so those were just dismissed out of hand. And I should say, with respect to one of the trees, and indeed, this was a dispute over more than one tree, as you might imagine.

Adam Stirling [00:16:43] Yes.

Michael T. Mulligan [00:16:45] One of the neighbours, actually, at the request of the litigious neighbour removed a bunch of trees because they were you know he was complaining about their impact on his driveway or septic system or something. So they went and removed a number of them. But when that person wrote to the municipality asking for permission to remove one final tree, the municipality told them, no, you’re not allowed to do that. And so they didn’t. And on that, the litigation over that tree, the judge said, well, what else is the neighbour supposed to do? And so found they were not liable, a nuisance for things that last, we might be doing, or dropping or creeping or whatever else it might be doing if they just weren’t had a no ability to remove that tree. They tried and were told no, and the judge can’t make the municipality give them a permit. So there’s that issue of sort what can be done and what can’t be done by a judge, and the fact that is actually quite restricted. Then the judge also goes on to review some of the specific laws concerning who’s responsible for what in terms of trees. So this is something I think people should be aware of. The judge pointed out. And there’s authority for this from the Court of Appeal. There is the concept of a what’s referred to as a border tree, as opposed to a tree, which would be a shared tree. The difference here would be, oh, a border tree would be a tree.

Adam Stirling [00:18:10] I love this, So good.

Michael T. Mulligan [00:18:11] Which is… We got the Court of Appeal they’re working hard for everyone, right?

Adam Stirling [00:18:14] Yep.

Michael T. Mulligan [00:18:15] So a a border tree would be a tree, which is entirely, like, rooted and growing out of one or a piece of property or the other, but hangs a cross into your lot, for example, or where the roots come under and come up you know maybe under your driveway or into your septic system or whatnot. And the Court of Appeal and this judge in provincial court points out that where you have things like branches hanging over into your property or roots coming up, that ordinarily is going to be your problem for the border tree. And furthermore, the Court of Appeal has pointed out that there is limited, it’s not unlimited authority, but there is some limited authority to engage in what the Court of Appeals referred to as self-help.

Adam Stirling [00:19:02] ahh.

Michael T. Mulligan [00:19:02] Which would be essentially this, like, let’s say a big branch, branches hanging over from the tree growing entirely in your neighbour’s yard. And it’s, I don’t know, poking into your window or something.

Adam Stirling [00:19:12] Yes.

Michael T. Mulligan [00:19:13] You’re free to cut it off right now. You’d be well advised to you know talk maybe talk to your neighbour about that if I might be in any way controversial. But, you know, the limb hanging over and dropping stuff or the roots coming up under your driveway. The starting point is that’s a border tree. Yes. I appreciate the thing starts over in your neighbour’s yard, but that’s the root of your problem. Sort it out and you can. And there’s no authority to do that. There’s also a concept as distinct from a border tree of a shared tree, which indeed straddles the property line. So that would be the trunk literally comes up and half you know, part of it’s on your property, part of what’s on your neighbour’s property that’s a little different from the border tree. And with that kind of a shared tree, in order to you can still engage in those sort of self-help remedies which are somewhat restricted.

Adam Stirling [00:20:01] yeah.

Michael T. Mulligan [00:20:01] You couldn’t just destroy the thing, but if you got to trim branches or stop them getting into your gutter or whatnot, that’s your problem. You could do that. But if you want to remove that kind of tree completely, the neighbours have to agree, right. And so, that’s the law surrounding the trees. And another element of this case was that as you might imagine, at once this sort of thing winds up in small claims court and goes on for an extended period of time. Other things sort of work their way into the obviously completely degraded neighbour relationship, including for example one of the neighbours perhaps, in perhaps connected to the tree litigation, perhaps sold their property to some new owners. That produced the litigious person complaining about the trees to a man who’s claimed to claim that selling the property was somehow an additional cause of damage to him because it made it harder to sue over the trees that didn’t get anywhere. But, the new owners, who quite you know sound like they were quite accommodating. They removed most of the trees, except for the one that the municipality said, no, you can’t take that one out. And so it doesn’t seem like they were unreasonable in that regard. Simply accommodating. While they were building a new house on the property. Apparently, somebody operating an excavator drove on to the property of the litigious neighbour.

[00:21:31] up oh.

Michael T. Mulligan [00:21:31] You know, all right, so that got added as a claim for trespass.

Adam Stirling [00:21:35] Oh, there we go. Yeah.

Michael T. Mulligan [00:21:37] So on that point the judge found that the new owners of the property who were building the new home had expressly told their contractors, people working for them do not drive on to the neighbour’s property. We’ve got this litigation going on over the trees. Don’t do that. And if you need to go over there, you’ve got to get his permission. And so the judge found that, you know, the neighbours are not on the hook for somebody ignoring their express direction. Don’t go over there. And so that claim as well, wound up being dismissed. There were then various other claims that made its way into this saga, including a claim over a damaged fence and whether that should result in $900.06, or whether it had been fixed. The ultimate outcome of all of this, after many years and much grief and time spent in courts and machinations, was that everyone was unsuccessful, and the judge ordered the various people to pay the $25 filing fee for each other. And so the entire outcome was two of the people had to pay 4$25 bucks to each. Each one went to the other. That was offset, leaving nothing. And unfortunately, the new property owners, who had removed many of the trees that had that built the new house, also had to pay $25 bucks on the filing fee, and there wasn’t anything to set it off against. And so the litigious guy, after many years and all of this heartache, is going to get 425 bucks. And so, as I said at the beginning, the number one takeaway is sort it out with your neighbours. If you find yourself considering a small claims action over a tree or a fence. Think again. It’s a bad idea. So that’s the border tree. The unfortunate outcome of years of small claims court litigation.

Adam Stirling [00:23:15] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Michael, pleasure, as always.

Michael T. Mulligan [00:23:22] Thank you so much. Have a great day.

Adam Stirling [00:23:24] All right. You too.

Automatically Transcribed on June 7, 2024 – MULLIGAN DEFENCE LAWYERS