



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Pearlman v. ICBC,









2010 BCCA 49




Date: 20100128

Docket:
CA037135

Between:

David Pearlman

Appellant

(
Plaintiff
)

And

Insurance Corporation of British
Columbia and
Kelly Winn

Respondents

(
Defendants
)






Before:



The Honourable Mr. Justice Hall





The Honourable Mr. Justice Chiasson





The Honourable Madam Justice Garson




On
appeal from: Supreme Court of British Columbia, April 24, 2009
(
Pearlman v. ICBC
, Vancouver Registry S064665)

Oral Reasons for Judgment




Appellant appearing In Person:



D.
  Pearlman





Counsel for the Respondent:



V.
  Critchley





Place and Date of Hearing:



Vancouver,
  British Columbia





January 28, 2010





Place and Date of Judgment:



Vancouver
, British Columbia





January
  28, 2010






[1]

GARSON J.A.
: The
appellants application is made pursuant to s. 9(6) of the
Court of Appeal
Act
, R.S.B.C. 1996, c. 77. to discharge or vary the order of a chambers
judge pronounced July 3, 2009, in which the chambers judge, Madam Justice
Kirkpatrick, refused the appellants application for indigent status and
granted the respondents application for an order requiring the appellant to
post security for costs of the appeal in the amount of $5,000. The underlying
litigation concerns the appellants claim against ICBC. He claims loss and
damages incurred as a result of ICBCs alleged wrongful procurement of a
medical report concerning his motor vehicle accident related injuries. The
chambers judges reasons for judgment were pronounced July 3, 2009.

[2]

An appellate court will only interfere with the
exercise of discretion by a chambers judge if the chambers judge misdirects him
or herself, acts on a wrong principle, or acts on irrelevant considerations, or
if the decision is so clearly wrong as to amount to an injustice (
Ward v.
Kostiew
(1989), 42 B.C.L.R. (2d) 121 at 127. See also
Named Person v.
Vancouver Sun
, 2007 SCC 43, [2007] 3 S.C.R. 252,
Dhillon v. Pannu
,
2008 BCCA 514, 263 B.C.A.C. 142).

[3]

For the reasons that follow, I would dismiss the
application to discharge or vary the decision of the chambers judge.

Background

[4]

The chambers judge carefully described the
lengthy procedural history to this application, as well as the related
litigation, in her reasons for judgment. She recounted the history of the
related litigation because it provides the necessary context to the litigation
that underlies the action that is the subject of this appeal. This appeal and
the related litigation all stem from injuries Mr. Pearlman says he sustained in
a motor vehicle accident that occurred on November 24, 2004. I quote at some
length from the reasons for judgment of the chambers judge:

[3]        On 24 November 2004,
Mr. Pearlman was involved in an automobile accident. He says that, in
addition to suffering neck and back injuries, he suffered dental injuries which
ultimately required extensive and costly restorative work.

[4]        Mr. Pearlman brought four
actions following the accident:

(a)        He sued
the owner and operator of the other vehicle (the Atlantic Trading Company Ltd.
and Rebecca Lee Spence), who were insured by ICBC;

(b)        He sued
his own American automobile insurer, the American Commerce Insurance Company
(ACIC);

(c)        He
brought a claim against his former family doctor, Dr. Stan Lubin; and

(d)        He sued
ICBC and Kelly Winn, the adjuster handling his claim.

[5]        Mr. Pearlmans claim against
Atlantic Trading Company Ltd. and Rebecca Spence was tried before a judge and
jury on 17 December 2008. The jury determined that Mr. Pearlman had not
been injured in the automobile accident and declined to assess any damages.

[6]        In the appeal from that decision,
Mr. Pearlman applied on 29 October 2008 for indigent status before
Mr. Justice Chiasson. That application was refused, both on the ground
that Mr. Pearlman had not established that requiring him to pay the fees
would deprive him of the necessaries of life and on the basis that there was no
merit in his appeal. Mr. Justice Chiasson also ordered Mr. Pearlman
to post $5,000 of security for the costs of the appeal on or before 19 December
2008. When that security was not posted, Madam Justice Newbury dismissed his
appeal as abandoned on 18 February 2009.

[7]        In the action against American
Commerce Insurance Company, the insurer applied under Rule 18A to have
Mr. Pearlmans action dismissed, which application was heard in August
2008. Mr. Justice Meiklem dismissed the insurers application but this
Court allowed ACICs appeal in February 2009 and the action has been dismissed.

[8]        The action against Dr. Lubin
relates to a medical report prepared by Dr. Lubin, at ICBCs request, for
the trial of the tort action. In a portion of the report, Dr. Lubin
indicated that he felt the problems Mr. Pearlman was experiencing with his
teeth were not caused by the motor vehicle accident. Mr. Pearlmans
complaint, among many, is that Dr. Lubin was not qualified to opine on
dental issues and his remark led to problems for him in the other actions. He
sued, alleging breach of confidence, defamation and libel, fraud, deceit and
negligence, as well as medical malpractice.

[9]        That action was tried before
Madam Justice Morrison in December 2008. She dismissed the claim. She held that
when ICBC requested the report, Dr. Lubin was obliged to provide it,
pursuant to s. 28 of the
Insurance (Motor Vehicle) Act
, R.S.B.C.
1996, c. 231. She also found Mr. Pearlman had failed to provide proof that
Dr. Lubin, in providing the report to ICBC, caused him to lose his action
against the defendant driver.

[10]      Mr. Pearlman subsequently
filed a notice of appeal, an application for leave to appeal, and sought a
declaration of indigent status. On 17 April 2009, Mr. Justice Bauman ruled
that leave to appeal was not required and declined to grant indigent status to
Mr. Pearlman. Bauman J.A. adjourned Dr. Lubins application that
Mr. Pearlman be required to post security for costs. That application was
heard on 11 May 2009 by Madam Justice Neilson, who ordered that
Mr. Pearlman post $5,000 of security for costs on or before 12 June 2009. She
also ordered the appeal against Dr. Lubin be stayed until the security was
posted. In her reasons for judgment, Neilson J.A. stated:

[18]      Mr. Pearlman
has failed to convince me that there is merit in his appeal. My view is
reinforced by the fact that Mr. Justice Bauman reached a similar conclusion
on Mr. Pearlmans application for indigent status. Moreover, the breadth
of the grounds of appeal that Mr. Pearlman wishes to pursue suggests that
if his appeal proceeds it will be a lengthy and costly process for both
parties.

[11]      The action underlying these
applications concerns Mr. Pearlmans claim against ICBC and Ms. Winn
alleging,
inter alia
, bad faith, fraud, negligence and
misrepresentation.

[12]      On 4 May 2007, Mr. Justice
Cullen dismissed the action against Ms. Winn and dismissed all claims against
ICBC except for an allegation of negligence against ICBC based on the alleged
unauthorized use of an authorization provided by [Mr. Pearlman] dated 1
December 2004.

[13]      On 25 July 2007, Mr. Pearlman
brought an application for indigent status before Mr. Justice Hall. Mr. Justice
Hall dismissed the application for indigent status holding that although Mr.
Pearlmans financial circumstances supported a finding of indigency, there was
no possibility of success of his proposed appeal:
Pearlman v. ICBC
, 2007
BCCA 451.

[14]      Mr. Pearlman sought a review
of Mr. Justice Halls order refusing him indigent status. On 20 September
2007, this Court dismissed his application stating that:

[11]      Mr. Pearlman
was unable to persuade Mr. Justice Hall that there was arguable error on
the part of Mr. Justice Cullen. This panel can review the chambers order
only on the ground that the chambers judge committed a legal error. We cannot
substitute our discretion for that of the chambers judge.

[
Pearlman v. ICBC
, 2007 BCCA 464]

[15]      The current application concerns
the remaining claim in the ICBC action as to Mr. Pearlmans allegation of
wrongful conduct by ICBC in obtaining the medical report from Dr. Lubin. The
report was obtained after Mr. Pearlman withdrew an authorization he had
previously given ICBC to obtain such information.

[16]      The application was brought before
Mr. Justice Smith, sitting with a jury, beginning on 20 April 2009. Facts
relevant to the action include the following.

[17]      For more than a year following the
accident, Mr. Pearlman was seen on several occasions by Dr. Lubin or
other doctors in Dr. Lubins office. He also met with Ms. Winn, who
obtained his signed authorization to obtain medical information. That
authorization was dated 1 December 2004. The authorization states that
Mr. Pearlman was authorizing any medical practitioner to prepare a report
or certificate including, but not limited to, the diagnosis, treatment, current
condition and prognosis, in any format specified by ICBC, relating to issues raised
by his claim for injuries in the accident. The ICBC form states that the
information is collected in accordance with both the Freedom of Information and
Protection of Privacy Act, R.S.B.C. 1996, c. 165 and the Insurance Corporation
Act, R.S.B.C. 1996, c. 228.

[18]      Approximately one year later,
Mr. Pearlman retained counsel, who advised Ms. Winn that any previous
authorizations had been revoked. However, on 4 April 2006, Ms. Winn wrote
to Dr. Lubin seeking a narrative medical report and enclosed the
authorization of 1 December 2004 which had been revoked.

[19]      The letter to Dr. Lubin and
the authorization do not state in what capacity ICBC was requesting the report.
Mr. Justice Smith noted that it is well established that in matters of
this kind, ICBC may act in two different capacities: as the plaintiffs own
insurer for the purpose of benefits payable under Part 7 of the
Insurance
(Motor Vehicle) Regulation
, B.C. Reg. 447/83, pursuant to the
Insurance
(Motor Vehicle) Act
, R.S.B.C. 1996, c. 231, and as the insurer of other
drivers or vehicle owners who may be liable to the plaintiff in tort for
injuries suffered in the accident. Mr. Justice Smith concluded that, in
this case, the request could only have been as the insurer for the defendants
in an anticipated tort action because Mr. Pearlman had been driving a
vehicle registered in Washington State and was insured by an American insurer. ICBC
did not accept Mr. Pearlmans claim for benefits under Part 7 of the
Regulation
and said that he must look to his American insurer.

[20]      Dr. Lubin prepared a report
which briefly discussed Mr. Pearlmans medical history prior to the date
of the accident, including the results of a physical examination that occurred
the day before the accident on 24 November 2004. The report described 12
occasions between 27 November 2004 and 4 April 2006 at which either
Dr. Lubin or one of his colleagues dealt with matters related to the
accident.

[21]      Dr. Lubins report stated that
Mr. Pearlman suffered:

... whiplash
associated disorder grade 2 of the cervical and lumbar spine. I again
recommended neck exercise and physiotherapy. Mr. Pearlman also complained
of a problem with his upper teeth, which he attributed to the motor vehicle
accident. On examination, there was some looseness of the upper front tooth. I
felt his dental problem was not likely connected to the motor vehicle accident.

Mr. Pearlman asserts that by stating an
opinion on the cause of his dental injuries, Dr. Lubin sabotaged his
tort claim. At the trial of the tort action, Dr. Lubins report to
Ms. Winn was not put into evidence and no evidence from Dr. Lubin was
put before the jury in any form by either party. Mr. Pearlman did not call
dentists or dental specialists who had treated him because Mr. Pearlman
says he could not afford to pay the fees those dentists would have charged for
attending in court.

[22]      At the close of
Mr. Pearlmans case on 24 April 2009, ICBC made application under Rule
40(8) for the dismissal of the action on the grounds there was no evidence to
support Mr. Pearlmans case.

[23]      In his reasons for granting the no
evidence motion, Mr. Justice Smith noted that it was not, as a matter of
law, open to the jury to reconsider whether Dr. Lubin was obliged to
provide the report when Ms. Winn requested it because in the trial against
Dr. Lubin Madam Justice Morrison found that he was. He also concluded that it
was not open to the jury to decide whether or not Dr. Lubin honestly
believed what he wrote in his report because Madam Justice Morrison found that
he did. Mr. Justice Smith also observed that it was not an issue whether
Dr. Lubin was right or wrong in his opinion about the dental injuries. The
question of what injuries, if any, Mr. Pearlman suffered in the accident
was the very issue before the previous jury, which clearly decided on the basis
of the evidence before it that there were no such injuries.

[24]      Mr. Justice Smith framed the
issues and his conclusions as follows:

[27]      The
question is whether there is any evidence on which this jury could reasonably
conclude that ICBCs requesting the report caused the plaintiff to lose either
his accident case or his case against the American insurer. In the accident
case, the plaintiff had to prove a causal link between the accident and both
his orthopaedic and his dental conditions. Dr. Lubin was a necessary
witness on the orthopaedic injuries. His opinion on that issue would clearly
have been helpful to the plaintiff, and his evidence was in fact the best
evidence available on the nature of those injuries and their causal link to the
accident. No evidence from Dr. Lubin was put before the jury in the
accident case; that was because of the plaintiffs belief that Dr. Lubins
passing comment about his dental injuries destroyed his case on that issue.

[28]      The
plaintiff must prove that but for ICBC obtaining the report from Dr. Lubin
the result of his accident case would have been different. If ICBC had not
obtained that report, the plaintiff could have and indeed would have had to
obtain a medical report from Dr. Lubin for use in that trial. There is no
evidence before this jury that such a report would have been any different from
the one that was produced. Indeed, the only evidence is from Dr. Lubin,
who says he would have written the same report and expressed the same opinions
no matter who requested it.

[29]      Even if
the plaintiff could have somehow persuaded Dr. Lubin to omit his comment
on the cause of the dental injuries from his report, the same comment appeared
in his clinical records written long before ICBC requested a report. Such
clinical records are subject to orders for production and are routinely entered
into evidence in personal injury cases. There is no evidence in this case from
which this jury could conclude that the plaintiff could have proven his neck
and back injuries without Dr. Lubins views on the dental injuries also
coming before the jury in the accident case.

[30]      As for
Dr. Lubins view regarding the dental injuries, that was never put before
the jury in the accident case and could not in any way have led to that jurys
negative conclusion on that issue. That conclusion flowed from the plaintiffs
failure to call dental experts who could have supported him on that point. The
plaintiff says he could not afford to call those witnesses. While I sympathize
with the financial predicament in which the plaintiff found himself, that does
not lessen the legal burden on him to prove his case. In any event, there is no
evidence that his failure to call the dental experts was the result of ICBC
obtaining a report from Dr. Lubin.

[25]      Mr. Justice Smith also noted that
Mr. Pearlman had failed to prove that if an offer of $25,000, consistent
with a reserve of $25,000, had been made to him that he would have accepted
that offer. Similarly, the trial judge rejected, for lack of evidence, the
notion that Mr. Pearlman lost his case against his American insurer by
reason of ICBCs request for Dr. Lubins report citing this Courts reasons
at para. 33:

[34]      Similarly,
there is no evidence that ICBC requesting a report from Dr. Lubin caused
the plaintiff to lose his case against the American insurer. It appears
Dr. Lubins report did come to the attention of ACIC and that may indeed
have been improper, but there is nothing to suggest it played any role in the
outcome of his claim. The Court of Appeal in dealing with that case said at
para. 33:

[33]      In the proceeding by the
plaintiff against ACIC, the latter obtained an independent medical examination
of the plaintiff, and a report of 15 July 2008, from Dr. Burton H.
Goldstein, a certified oral and maxillofacial surgeon. This report, which was
also before the judge, contains an extensive review of the plaintiffs
dentition prior to the accident of 25 November 2004, and of the many and
various treatments the plaintiff received for his dental problems both before
and after the accident. Dr. Goldstein concludes that most, if not all, of
the various dental expenses which the plaintiff claimed from the defendant and
the defendant paid in full, were not required because of any injury or
injuries suffered by Mr. Pearlman in the accident of November 4, 2004, and
were related to the patients pre-existing dental status.

Indigent Status Application

[5]

The chambers judge set out the two
well-established criteria determining whether indigent status should be
granted. Those two criteria are: 1) the likelihood of success of the appeal;
and 2) the financial position of the appellant (
Duszynska v. Duszynski
,
2001 BCCA 155, 149 B.C.A.C. 153).

[6]

The chambers judge noted that on November 21,
2008, and on April 17, 2009, two justices of this Court found that Mr. Pearlman
did not meet the financial criteria for indigent status. The chambers judge
observed that she had before her substantially the same financial information
as was before the other two justices.     In Mr. Pearlmans affidavit in
support of his application for indigent (at page 47 of his motion book on this
application), and sworn on June 22, 2009, he deposed that he does not have
funds with which pay court fees, to swear affidavits, or to pay photo copying
expenses. In an earlier Affidavit sworn on May 20, 2009 (both before the
chambers judge), he itemized his income and expenses as follows:

Estimated net monthly income from all sources




Employment



Nil





Pension OLD AGE, CPP AND GIS



$1,338.48





Dividends



Nil





Interest



Nil





Other



Nil





Total



$1,338.48




ESTIMATED MONTHLY EXPENSES




Estimated monthly expenses related to housing RENT



$250.00





Estimated monthly
  expenses related to transportation



350.00





Estimated monthly
  expenses related to household expenses



350.00





Estimated monthly
  expenses related to medical and dental



143.48





Expenses



----





Estimated monthly
  expenses, not included in above, related to dependent children



N/A





Estimated monthly
  debt payments (specify) ICBC ($100.00),
CABLE ($60.00), PHOTOCOPYING ($245.00), HYDRO ($25.00), Parking ($60.00)









TOTAL (Estimated
  monthly expenses)



$1,338.48








[7]

He says he has no assets of any value. He
estimates his debts at $33,000.

[8]

The respondent on this appeal filed an affidavit
of Tina Robbins, defence counsels paralegal. Ms. Robbins deposed at para. 14
of her affidavit as follows:

I have been
informed by Mr. Critchley and verily believe that the Appellant has suggested
in this Appeal that he is indigent. I do know, however, that he was able to
come up with sufficient funds to pay the initial Jury fees in the Action as
well as the Jury fees for the 5 days of trial as requested by the Sheriffs
office.

[9]

As to the merits of the appeal, the chambers
judge said at para. 30:

Having read the
reasons for judgment, the materials filed on this application, as well as
Mr. Pearlmans submissions, I do not consider it at all likely that a
division of this Court could be persuaded to reverse the findings of the trial
judge.

[10]

Mr. Pearlman argues before this Court that Mr.
Justice N. Smith usurped the jurys function by granting the defendants
no-evidence motion at the conclusion of his case. Mr. Pearlman made the same
arguments before the chambers judge.

[11]

I am unable to apprehend any error on the part
of the chambers judge in concluding that there was no likelihood that a
division of this Court would be persuaded to reverse the findings of the trial
judge.

[12]

As to Mr. Pearlmans financial status, the
chambers judge examined his financial circumstances and reached the same
conclusion as the ones reached earlier by two other justices of this court. I
see no error in her conclusion that Mr. Pearlmans financial circumstances,
although constrained, are not such that he cannot pay the necessary filing fees
as indeed he has done on other occasions. In any event, the first ground, that
is the question of merits, is dispositive of this application.

[13]

In my view Mr. Pearlmans application for
indigent status fails on both grounds.

Security for
Costs

[14]

The issue before the chambers judge was whether
the appellant had established that the interests of justice require security
for costs not be posted (
Southeast Toyota Distributors, Inc. v. Branch
(1997), 45 B.C.L.R. (3d) 163, 99 B.C.A.C. 12). The chambers judge concluded
that the appeal had no reasonable prospect of success, that there was a serious
risk that the respondents would not be able to recover their costs if they were
successful on appeal, and finally, that the appellant had not satisfied the
onus upon him to establish that the interests of justice requires security for
costs not be posted.

[15]

In my opinion the chambers judge did not err in
her disposition of the respondents application.

[16]

Accordingly, I would dismiss the appellants
application.

[17]

HALL J.A.
: I
agree.

[18]

CHIASSON J.A.
: I
agree.

[19]

HALL J.A.
: The
application for review is dismissed.

The Honourable Madam Justice Garson


