B.C. court finds man may have attempted to defraud ICBC

The B.C. Court of Appeal has dismissed a man's claim for damages after he was rear-ended in Surrey in 2017, finding that his testimony was not credible and he may have attempted to defraud the provincial auto insurer in the process.

The case shows how a lower court decision can be flawed, according to the appellate court, when it relies on expert evidence that was itself based on unreliable information.

Alasdair Girvan was seeking hundreds of thousands of dollars in damages and costs of future care, after the accident involving a car driven by Eleanor McGlue in July 2017.

Girvan claimed he felt extreme pain after the accident and "seized up." He provided expert evidence stating the accident may have exacerbated previous injuries he suffered and caused him psychological distress.

However, despite a B.C. Supreme Court judge finding his testimony unreliable when passing judgment on his case last year, he was awarded damages based on the "evidence as a whole" that was submitted. Girvan was awarded more than $630,000 in the case by the lower court.

McGlue appealed the decision, saying the judge made an error by awarding damages when there was no proof of the injuries.

Now, the province's highest court has agreed with her, and dismissed Girvan's claim outright.

"I see the adverse credibility findings as being fatal to Mr. Girvan's claim of injuries caused by the accident — given that there was no objective evidence to support his claim," wrote Justice Sunni Stromberg-Stein in a decision released Monday that was concurred in by two other Appeal Court judges.

A $20K offer

On July 18, 2017, both McGlue and Girvan were travelling south on Surrey's 176 Street, near the intersection with Fraser Highway, when the accident occurred around 5 p.m. PT.

McGlue told the court that she was driving between 40 and 60 km/h at the time, and could not slow down in time before she rear-ended Girvan's SUV.

Both parties agree about what happened in the immediate aftermath, according to the judgment. Girvan came out of his car and appeared "calm and collegial" in the moment.

"Ms. McGlue was very relieved that he was not angry with her," the judgment reads. "She apologized profusely to Mr. Girvan, who told her not to worry and that he had not even felt the impact. Ms. McGlue was firm in her evidence on that point."

A stock image of a rear-ender crash, which involves one car's front colliding with the back of another car. McGlue rear-ended Girvan in the accident in July 2017. (Robert Crum/Shutterstock)

Girvan then helped McGlue call a tow truck, according to the judgment, and then drove off after exchanging phone numbers.

Soon after, as she waited for the tow truck, McGlue got a call from Girvan, she testified.

"On that call, Mr. Girvan told her that he had spoken with a friend who said that if they called the paramedics to the scene of the accident, they could each get $20,000 from the Insurance Corporation of British Columbia (ICBC) for an injury claim," the judgment reads.

"Ms. McGlue testified that she responded that she was not injured and did not want any part of that."

Girvan initially said he did not recall the phone conversation and then denied it happened outright — even as McGlue presented evidence showing the call in her phone call logs.

The lower court judge agreed with McGlue's assessment of what happened, and found that Girvan's denial of the phone call was "simply not credible."

Expert evidence relied on self-reporting

Girvan claimed that he eventually had to call first responders as he felt a spike of pain after the accident, and was subsequently taken to hospital.

While the lower court found his evidence generally not credible, the judge eventually agreed that Girvan had exacerbated pre-existing injuries and chronic pain due to the 2017 rear-ending.

The B.C. Supreme Court judge based this on "evidence as a whole," taking into account evidence submitted by Girvan's doctors and psychiatrist.

However, the Court of Appeal found that the expert's evidence was itself relying on Girvan's self-reporting of his injuries, and there was no objective evidence cited by him that detailed the injuries he suffered.

"Despite acknowledging the relevant principles, the judge inexplicably concluded, with no additional analysis, that Mr. Girvan had proven causation for the bulk of his alleged injuries despite his lack of credibility and the resulting lack of weight that could be given to the experts' opinions," the appellate court judgment reads.

"In my view, the judge made a palpable and overriding error in making a finding with respect to causation," the judgment concludes.

Maurice Mirosolin, who represented McGlue in the case, said his client is "quite pleased" with the Court of Appeal's decision.

"I am certainly of the view that public confidence in the administration of justice was maintained by the Court of Appeal's decision to overturn a flawed judgment and dismiss the respondent's claim in its entirety," Mirosolin wrote in an email to CBC News.