ICBC Privacy Breach Class Action
ICBC Privacy Breach Class Action
ICBC Privacy Breach Class Action Background
ICBC is a Crown Corporation with a monopoly for automobile insurance in British Columbia. It also manages driver’s licencing for the Province. Therefore, every resident of British Columbia with a driver’s license or automobile insurance is required to provide personal information to ICBC. Literally hundreds of ICBC employees and agents have access to ICBC’s databank of personal information. ICBC is under a duty to protect the privacy of its customers. There have been numerous incidents of ICBC employees accessing individuals’ personal information for improper purposes.
What is this law suit about?
Beginning in 2010, 78 individuals had their personal information accessed by an ICBC employee unlawfully and without authorization. Many of those individuals had a connection to the Justice Institute of British Columbia and have been the targets of shootings, arson and other property damage. A class action has been filed by Collette Parsons Harris* Lawyers to obtain compensation for all individuals who had their personal information accessed by this ICBC employee, including compensation for the breaches of privacy under provincial privacy legislation, restitution of property damage and punitive damages.
What is a class action?
A class action is a law suit that allows one person, called a representative plaintiff, to start an action on behalf of himself/herself as well as all others who fit into the defined class, subject to the rights of class members to withdraw or opt-out. This means that a single person can commence a class proceeding on behalf of everyone who has suffered a similar harm. Class proceedings legislation allows greater access to justice by permitting groups of people who are similarly affected to join together in commencing legal action.
How can you get included in this action?
If you have had your personal information accessed as a result of this privacy breach, either ICBC or the RCMP have likely already contacted you and informed you that your private information was accessed for an improper and unauthorized purpose. We will be applying for certification of this class action and once the court certifies it as a class action you will automatically be included unless you opt out. If you opt out you may pursue your own individual law suit against ICBC at your own cost.
Please contact us at email@example.com, or call Guy Collette or Richard Parsons at 604-662-7777 for further information.
November 27, 2023 – Court sets date to determine aggregate damages to all Class Members and settle the individual issues litigation plan
On April 24, 25 and 26, 2024, Justice N. Smith will hear arguments from the parties on the appropriate quantum of damages which will be awarded to every Class Member for the breaches of privacy committed by Candy Elaine Rheaume (the “Aggregate Damages”) and to settle on a litigation plan for proving individual damages (the “Individual Damages”). Justice Smith will also settle who the Class Members are as ICBC takes the position that not all of the 78 individuals who received the apology letter from ICBC in the spring of 2012 for having their personal information unlawfully accessed by the ICBC employee (Ms. Rheaume) are Class members.
ICBC has been ordered to pay damages to every Class Member for Ms. Rheaume’s breaches of the Privacy Act. These damages have been referred to as “moral damages” which are payable in the absence of any actual damage sustained by the Class Members. As there is commonality in Ms. Rheaume’s use of her authority to unlawfully access the Class Members files with ICBC, all Class Members will receive the same compensation irrespective of any Individual Damages suffered. The amount each Class Member will receive will be set by Justice Smith. Any Class Members who believe they have not sustained Individual damages will be paid their proportionate share of the aggregate damages as determined the court and their involvement in the litigation will be concluded. The Class Members who believe they also sustain Individual Damages will receive their proportionate share of the aggregate damages but will also be entitled to claim the additional Individual Damages based on their particular circumstances.
The Individual Damages will be different for every Class Member and must be establish to the civil standard of proof. These damages may be non-pecuniary (awarded to compensate for intangible losses like pain, suffering and loss of enjoyment of life) and/or pecuniary (actual monetary losses). In order to claim the Individual Damages, proof will need to be submitted to the court which will determine how much should be awarded, if anything. At the April hearing the parties will make submissions on the process for claiming the Individual Damages. We will argue for different modes of proof based on the amount of the individual claims. For smaller claims it will be submitted that proof be established by the filing of affidavit evidence only without any additional discovery. For larger claims, discovery will be permitted and the largest claims could be determined at full trials. Fouteen premises of Class Members had there homes violently attacked in various ways and will likely be the Class Members with largest damages.
What should Class Members do at this time:
All individuals who had their ICBC files unlawfully accessed between, January 1, 2010 and December 31, 2011 (the “Identified Class Members”) and all residents of their premises at the time of the breaches (the “Resident Class Members”) will receive the aggregate damages and can claim Individual Damages. Only the Individuals Class Members have received written Notice of the privacy breaches and the Class Proceedings. Therefore, all of the Identified Class members should ensure that all the Resident Class Members are aware of the judgment so that they can contact our offices to ensure they receive their compensation. There are court orders in place which prohibit Class members from being identified publicly so Class Members will continue to have their identities protected. Only ICBC, the lawyers for the parties and the court will have access to that information.
All potential Class Members should contact Richard Parsons of our office at 604-662-7777, or email firstname.lastname@example.org so that we have all the Resident Class Members’ names and all Class members current contact information. All Class Member who believe they have Individual damages should provide a summary of what they believe the damages are. This will enable us to determine which Class Members have Individual Damages. Our office will respond to all Class Members and will assist in identifying the Class members who likely meet the threshold for an Individual Damage
October 14, 2022 – ICBC APPEALS JUDGMENT
On September 23, 2022 ICBC filed a Notice of Appeal seeking to appeal the judgment of Justice N. Smith, but did not serve it on our offices until October 3, 2022. A Notice of Appeal from a judgment must be filed and served within 30 days of the date of the judgment or else it is a nullity. The judgment against ICBC was rendered on August 24, 2022, so the Notice of Appeal was filed within 30 days, but as it was not served within 30 days it was a nullity. Therefore, in order for ICBC to pursue the appeal of the judgment, it needed to make an application to the Court of Appeal for an order extending the time for service. The application was filed last week set to be heard today. The representative plaintiff, Mr. Ari, instructed me to oppose the application. ICBC’s application was successful and so it can now proceed with its appeal. That means everything is on hold again until the reasons for judgment from the Court of Appeal are pronounced, likely in late 2023 or early 2024.
August 24, 2022 – JUDGMENT GRANTED AGAINST ICBC TODAY
The trial of the common issues in this class action was heard May 4 – 6, 2022. Reasons for judgment were delivered today ordering ICBC to pay damages to the class members. Reasons for Judgment
The amount ICBC will have to pay will be determined in further proceedings. Mr. Justice Smith made the following orders:
- Ms. Rheaume breached the class members’ privacy pursuant to the Privacy Act, R.S.B.C. 1996, c. 373, when she accessed class members’ personal information wilfully and without a claim of right from ICBC databases.
- Class members are entitled to general, non-pecuniary damages on a class-wide basis for the breach of the Privacy Act.
- Individual class members are entitled to pecuniary damages for losses suffered and expenses incurred due to Ms. Rheaume’s breach of the Privacy Act, as well as any individual non-pecuniary damages over and above that suffered by all class members, subject to proof of those damages in the individual issues phase of the class proceeding.
- ICBC is vicariously liable for the general damages and pecuniary damages caused by its employee’s breaches of the Privacy Act.
- The attacks were not unforeseeable intervening acts, and liability extends to the property damage that the subclass members suffered as a result of the attacks.
- Individual subclass members are entitled to damages over and above the general damages awarded to the whole class, subject to proof of those damages in the individual issues phase of the class proceeding.
- ICBC’s conduct in the circumstances does not justify an award of punitive damages against ICBC.
There are two aspects to the damages claim:
- Damages on a class wide basis – Compensation is awarded for breach of the Privacy Act in the absence of actual damage. All Class Members are entitled to receive this compensation. The amount Class Members will receive will be determined at a future hearing.
- Damages on a individual basis – Any class member can make a claim for pecuniary or non-pecuniary damages in addition to the damages awarded on a class wide basis. That means if any of the class members have suffered physical or psychological injury they can claim additional non-pecuniary damages beyond what they were awarded on a class wide basis. Additionally, provable pecuniary damages are recoverable. That means any money lost or to be lost in the future due to the privacy breach are recoverable. This would include costs of counselling, medications, income loss past and future, moving expenses, additional security expenses, etc..
All Class Members will receive the class wide compensation. However, any class members who have individual claims should contact our offices as soon as possible so that we can determine their additional compensation.
August 15, 2023 – BC Court of Appeal Upholds ICBC’s Liability
Today the BC Court of Appeal dismissed ICBC’s appeal of the judgment against it in this class action. Reasons for Judgment
The Appeal Court confirmed the Trial Judge’s ruling that:
Information the ICBC employee accessed was private within the meaning of the Privacy Act;
- It was a breach of the Privacy Act for the employee to have willfully accessed the Class Members’ files without a legitimate business purpose;
- Aggregate damages can be assessed to all Class Members on a class wide basis for the breach of privacy;
- The aggregate damages will be a baseline assessment that does not require individual proof (all Class Members are entitled to these damages);
- In addition to the aggregate damages awarded, any class member can pursue additional damages through individual damage assessments in addition to the baseline damages awarded (this will require proof of damage on an individual basis); and
- ICBC is vicariously liable (responsible) to pay the damages awarded.
The next step will to go back before the trial judge to have the aggregate damages assessed and formulate a plan for proving and assessing the additional individual damages. Further developments will be posted on this website.
ICBC Privacy Breach Class Action Update April 30, 2021
On July 3, 2018 ICBC filed a court document (Third Party Notice) which added Ms. Rheaume and a number of the individuals who were involved in perpetrating the attacks on Class Members homes and property as parties in the Class Action. We opposed having those individuals involved in the class action and applied to the court to have them removed. One of the added parties retained counsel and filed his own motion to have the Third Party Notice struck. The applications were heard by the newly appointed case management judge, Mr. Justice Nathan Smith. On July 23, 2020, Mr. Justice Smith rendered reasons setting aside the Third Party Notice and dismissing ICBC’s application to have a separate law suit filed by ICBC against the Third Parties heard at the same time as the Common Issues in the Class Action (full reasons below). ICBC appealed those decisions. Today the Court of Appeal dismissed ICBC’s appeal (full reasons below). As a result, we now have a case management conference set before Mr. Justice Smith on May 31, 2021. At the case management conference we will be seeking to set dates to have all or most of the Common Issues determined by Summary Trial. A Summary Trial is a process where the court determines the issues in dispute based on a written record rather than with in person witnesses. We will post a further update after the case management conference.
ICBC Privacy Breach Class Action Update May 8, 2020:
Subsequent to the Court of Appeal rendering its decision on certification last May 2019, we had the new Certification Order and Notice of Certification approved by the case management judge on December 3, 2019 and entered on February 20, 2020. ICBC was ordered to mail out the Notice of Certification to the 78 individuals whose personal information was wrongfully accessed by the ICBC employee. On April 23, 2020 ICBC’s Senior Legal Counsel ICBC Corporate Law mailed the Notice of Certification to the 78 individuals whom ICBC identified as having their personal information wrongfully accessed. The Notice of Certification is deemed to be received by you five days after the date of mailing. Unfortunately, ICBC sent out the Notice of Certification with a significant error on it. Under the paragraph “How Do I Participate?” the correct paragraph is different than the paragraph that was approved by the court. Due to an amendment to the Class Proceedings Act individuals have the same rights to participate in the action irrespective of whether they live in British Columbia or not. Below is the correct paragraph that should have been in the Notice of Certification:
How Do I Participate?
If you fall within the definition of the class you do not need to do anything to participate, you are automatically included in the class action. If you do not want to be part of this lawsuit you must opt out of the class by completing the Opt-Out Form attached to this notice and return it to Collette Parsons Harris on or before 90 days from the date the Class are notified. Class Members are deemed to be notified 5 days after the date of mailing this notice. . If you are a Class Member and do not exclude yourself by that date you will be included in this lawsuit and will be bound by the court’s judgment on the common issues, whether favorable or not.
The full correct Notice of Certification is available on the link below:
Additionally, it is important to understand that the Notice of Certification was only sent to the 78 individuals who actually had their plates searched as they are the only class members that are readily identifiable from ICBC’s records. However, everyone who was resident with any of the 78 identified individuals at the material times are also class members. Everyone who received the Notice of Certification should advise everyone who was resident at their residence about the Notice of Certification. While none of the class members has to do anything to participate in this action, I would appreciate it if all the prospective class members contact my office by completing the Contact Us field at the end of this page so that we can determine the total number of potential class members. Knowing how many potential class members there are will assist us in quantifying the potential compensation class members may be entitled to.
ICBC Privacy Breach Class Action Update May 28, 2019:
We were successful today the in the British Columbia Court of Appeal. The court allowed our appeal of the Supreme Court’s decision declining to include in the class the family members and other residents at the premises of the 78 individuals whose license plates were searched by Ms. Rheaume and declining to include the question of whether ICBC is liable for punitive damages arising from Ms. Rheaume’s actions. That means all of the family members and other residents of the homes Ms. Rheaume illegally searched are now included in the class action and may be entitled to financial compensation from ICBC including punitive damages. The next step to is to amend the Notice of Certification to include the expanded class and providing the notice to all class members. To date ICBC has not provided any of its documents and we will be pursuing full disclosure of its documents which will assist us in starting to assess the class members potential compensation. Additionally, we will seek to amend the certification order in accordance with the Appeal Court’s judgment by consent or by further application to the Supreme Court. The full reasons of the Court of Appeal are available on the link below.
ICBC Privacy Breach Class Action Update March 7, 2018:
On December 28, 2017 we filed an appeal of Certification Order with respect to the court’s decision declining to include in the class the family members and others residents at the premises of the 78 individuals whose personal information was illegally accessed by Ms. Rheaume and declining to include the question of whether ICBC is liable for any punitive damages arising from Ms. Rheaume’s actions as a common issue.
On January 10, 2018 ICBC filed a Cross-Appeal seeking to overturn the court’s decision certifying the class action respecting the 78 individuals who have been identified by ICBC as having their personal information accessed for non-business purposes by Ms. Rheaume.
Counsel for both parties have agreed, with the court’s approval, to having the Certification Order held in abeyance pending further agreement between the parties on how to proceed or pursuant to an application to the Court of Appeal for a stay pending appeal.
In the meantime, it would be helpful for the action if all the potential class members who have not yet contacted Class Counsel would do so at this time to provide information relating to the harms and losses they have suffered, including losses and expenses covered through private insurance policies.
All potential Class Member’s may contact Class Counsel in confidence at email@example.com, or call Guy Collette or Richard Parsons at 604-662-7777. ICBC
Privacy Breach Class Action Update December 11, 2018:
On November 6, 2018 ICBC abandoned its Cross-Appeal of the Certification Order. Therefore, the case for the 78 individuals who have been identified by ICBC as having their personal information accessed for nonbusiness purposes by ICBC employee, Candy Elaine Rheaume, will proceed. The plaintiff’s appeal of the court’s decision not to include in the class the family members and other residents at the premises of the 78 individuals whose license plates were illegally searched by Ms. Rheaume and declining to include the question of whether ICBC is liable for any punitive damages arising from Ms. Rheaume’s actions has been set to be heard on March 15, 2019 in Vancouver.
ICBC Privacy Breach Class Action Update December 1, 2017:
The British Columbia Supreme Court rendered reasons for judgment certifying this action as a class action on December 1, 2017. Class Members will be entitled to the benefit of a successful judgment on the common issues. If the action is not successful on the common issues, no Class Member will be responsible for legal fees or costs. If this action is successful at the common issues trial,individual Class Members will be entitled to monetary compensation. At the compensation stage each individual’s losses will have to be determined. If you are a potential Class Member you can contact Collette Parsons Harris for further information about how this class action may affect your rights.
The class has been defined as the 78 individuals who have been identified by ICBC as having their personal information accessed for non-business purposes by ICBC employee, Candy Elaine Rheaume.
The court declined to include in the class the family members and others residents at the premises of the 78 individuals whose personal information was illegally accessed by Ms. Rheaume.
The class consists of the 78 individuals who have been identified by ICBC as having their personal information accessed for non-business purposes by Ms. Rheaume (the “Class Members”) and a sub-class of the 13 Class Members who have been identified by ICBC as having had their personal information accessed for non-business purposes by Ms. Rheaume and whose premises received property damage caused by the third party Attacks. The certified common issues include whether the Class Members are entitled to compensation for the breach of their privacy, reimbursement of losses suffered and expenses incurred due to the breach of privacy and whether ICBC is liable to pay that compensation.
The court did not certify the question of whether ICBC is liable for any punitive damages arising from Ms. Rheaume’s actions.
ICBC must notify the Class Members within 60 days after the certification order (January 30, 2018). ICBC is aware of the names of all the individuals who had their license plate unlawfully searched by Ms. Rheaume and it will notify the potential Class Members by mailing the court approved Notice of Certification to each individual at their last known address by regular mail .
Persons who are resident in British Columbia on the date of certification and who wish to opt out of this class proceeding may do so by delivering the court approved opt out form to class counsel on or before 90 days from the date that the Class Members are notified. Class Members will be deemed to have been notified 5 days after the date of mailing of the Notice.
You can get updates on the progress of this action on this website.
A Sealing Order and Publication Ban was granted in this action on April 20, 2017 a copy of which is available on this website. Therefore there are limits on the material that can be disclosed publically. The important court documents which do not contain restricted material are reproduced below:
ICBC Privacy Breach Class Action Update November 17, 2015:
The British Columbia Court of Appeal rendered reasons for judgment upholding the British Columbia Supreme Court’s decision that the plaintiff’s claim that ICBC is vicariously liable for breaches of thePrivacy Act, R.S.B.C. 1996, c. 373 by its employees can proceed. However, it also upheld the Supreme Court’s ruling that public bodies including ICBC cannot be sued for damages for breaches of privacy that occur due to their negligence pursuant to s. 30 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165. The court ruled that the Freedom of Information and Protection of Privacy Act is a comprehensive statutory framework for dealing with this issue and that a private law duty of care should not be recognized for public policy reasons.