Carfra Lawton LLP | Victoria BC

Proof of Intoxicating Nature of Substance Required for Denial of Coverage

In Venkataya v. ICBC 2015 BCSC 1583 the plaintiff sought replacement of his vehicle under his collision policy. ICBC denied coverage, arguing that the plaintiff breached the conditions of his insurance policy by consuming a traditional Fijian root drink, called Kava, which allegedly rendered him incapable of proper control of his vehicle. Coverage was also denied on the basis that the plaintiff provided a willfully false statement to ICBC about his consumption of drugs in the 12 hours prior to the accident.

On the evening of the accident the plaintiff consumed 1-2 bowls of Kava at a friend’s house. On his way home he “blacked out” and drove erratically across traffic, into poles, signs, trees, a fire hydrant and flower bed and finally into the wall of a Taco Time restaurant. The accident was witnessed by police. The plaintiff was given a 24 hour driving suspension and initially charged with driving while impaired. He later pled guilty to driving without due care and attention, and paid a fine.

ICBC argued that absent any evidence of medical incapacity and having regard to the aberrant and extreme nature of his driving, the plaintiff must have been impaired by the Kava he drank. ICBC sought to establish that Kava was an intoxicating substance, but was ultimately unable to meet the onus of proof. The court found that ICBC’s expert pharmacology evidence did not meet the admissibility test established in R. v. Mohan, because the expert did not have the proper expertise to opine on all of the issues addressed, his report was “a common sense response” based on the weighing of evidence, and that it relied extensively on various non-scientific Internet sources. Further, the expert merged conclusions from scientific materials with various other untested and less reliable sources, although the conclusions from each were inconsistent.

ICBC also argued that the plaintiff had made a willfully false statement in respect of whether he had consumed drugs in the 12 hours before the accident. In his statement to ICBC the plaintiff denied having taken any drugs, “prescription or otherwise,” but he had told police and hospital personnel that he took Tylenol or Benadryl at some time on the day of the accident. The court ultimately found that the plaintiff did not intend to mislead or make a false statement to ICBC, finding that he had previously “unhesitatingly” told police and hospital personnel about taking the medication. Furthermore, it was not clear that the plaintiff’s misstatement was “material” as it was “hard to imagine that an insurer would view an insured’s use of an off-the-shelf allergy medication, within normal or recommended dosages, some 8 to 12 hours before an accident, as material to the claim being advanced by that insured.”

The plaintiff was awarded judgment in the amount of the replacement cost of his vehicle.

Case law summary by: Caroline Alexander