Court dismisses ICBC's class action lawsuit appeal, company will have to pay damages

The Insurance Corporation of British Columbia's Vancouver headquarters is shown in this file photo. (CTV)

British Columbia's highest court has dismissed an appeal by ICBC, leaving the provincial insurer liable for damages in a class action lawsuit.

The case has been before courts in the province for more than a decade, and stems from a string of arson, shooting and vandalism incidents that happened over a 10-month period from April 2011 to January 2012.

The 13 people who had property damaged in the incidents were part of a larger group of 78 ICBC customers whose personal information was accessed by claims adjuster Candy Rheaume in 2011 "for no apparent business reason," according to the latest decision from the B.C. Court of Appeal. 

Rheaume retrieved the customers' personal information by "running" licence plate numbers provided to her by Aldorino Moretti. The decision indicates she sold information to him for $25 or more per licence plate.

The perpetrators of the incidents – identified in the decision as Vincent Eric Gia-Hwa Cheung, Thurman Ronley Taffe and others – used the information to carry out their attacks. The only thing the 13 victims had in common was that their vehicles had been parked in the parking lot at the Justice Institute of British Columbia.

As summarized in a 2022 B.C. Supreme Court decision that found ICBC "vicariously liable" for Rheaume's violation of the customers' privacy, "Cheung had a drug-induced paranoid belief that he was being targeted and controlled by the Justice Institute." 

He was sentenced to 12 years in prison for "numerous arson and firearm offences" in 2016, according to the supreme court decision.

It was that decision's findings on the customers' privacy being breached and vicarious liability that ICBC challenged before the court of appeal.

INFORMATION WAS NOT PUBLICLY AVAILABLE

Writing for the three-judge panel, which was unanimous in its decision to dismiss ICBC's appeal, Justice Susan Griffin noted that the insurer advanced "several grounds of appeal" on the question of privacy breaches, but they all boiled down to the same basic argument.

"Essentially, these grounds of appeal all are aspects of ICBC’s assertion that the information was merely contact information and therefore was not private," Griffin wrote, before addressing and dismissing each variation.

"In my view, despite ICBC’s able arguments, it has not established that the judge erred in finding that customers had a reasonable expectation of privacy in the information they gave ICBC, which expectation was that the information would only be used for ICBC’s legitimate purposes," the judge wrote.

She also rejected the premise she saw underlying each of the company's arguments, namely that the information was publicly available and had "no inherent privacy interest."

"This argument begs the question: if the information linking a licence plate to a person’s name and address was not private because it was available publicly, why did someone need to pay ICBC’s employee in order to obtain that information?" Griffin wrote. "ICBC’s proposition would surprise many people, including those who park their motor vehicles at the airport to go on holiday."

Likewise, on the question of vicarious liability, Griffin was unmoved by ICBC's argument that the trial judge made an error in his application of the legal principles that determine whether to impose vicarious liability on an employer for the actions of its employee.

"It is just to impose liability on ICBC in order to provide an adequate remedy and to create deterrence of similar conduct in the future," the judge wrote. "Between ICBC and a customer required to provide their private information to ICBC, it is just that the risk of improper use of the information by an ICBC employee in Ms. Rheaume’s position should be borne by ICBC and not the customer."

The high court's decision to dismiss the appeal means the B.C. Supreme Court decision remains in effect.

That decision found that Rheaume had breached the privacy of the members of the class described in the class action; that class members are entitled to general damages on a class-wide basis; that the individual class members who suffered losses as a result of the breach are entitled to pecuniary damages; and that ICBC is vicariously liable for both the general and the pecuniary damages.

What the supreme court decision didn't determine is how much money those damages are worth. The monetary awards for class-wide damages and individual issues were left to be determined in future court proceedings.