INSURANCE COUNCIL OF BRITISH COLUMBIA Mohamed Alie Jalloh (the “Licensee”) Pursuant to section 242(1) of the Financial Institutions Act, the Licensee appealed the Insurance Council of British Columbia’s (“Council”) order of May 17, 2012 to the Financial Services Tribunal (the “Tribunal”).
After reviewing written submissions of the Licensee and Council, the Tribunal published its decision on December 7, 2012.
A copy of the Tribunal’s decision of December 7, 2012, Council’s order of May 17, 2012, and Council’s Report of the Hearing Committee of May 8, 2012 can be found below.
Dec. 7. 2012 2:20PM EAB/FAC Financial Services Tribunal
DECISION NO .. 2012-FIA-002(a) . . In the matter of an.appeal unc,ler.section 242(1) of the Financial Institutions Act, R.S.B.C. 1996, c. 141. BETWEEN: Mohamed Alie Jalloh . APPELLANT AND: · Insurance Council of British Columbia. RESPONDENTS Financial Institutions Commission BEFORE: A Panel of the Financial Services Tribunal Patrick 'F. Lewis, Panel Chair
DATE: · Conducted by way of written submissions concluding on November 13, 2012
APPEARING: For the Appellant: Gerhard A. Pyper,· Counsel For the Respondent Council: David T. McKnight, Counsel For the Respondent ComrJ:1ission: . Sandra A. Wilkinson, Counsel INTRODUCTION [1l This is an appeal of an Order of the Insurance Council of British Columbia· ., dated May 17, 2012, by which a li<::ensee's general insurance licence was "cancelled for four years 11 and he was ordered to pay investigative and hearing costs totalling $28,547.46.
[2] I will refer to the llcensee in this case, Mohamed Alie Jalloh, as the Appellant. I will refer to the Insurance Council of British Columbia, in its capacitY. as a party to this appeal, as the Respondent, though in its earller investigative capacity In this matter as Council. Finally, I will refer to the three person pa-nel that presided over the hearing below as the Hearing Committee.
[3] The Order below was made pursuant to sections 231 and 241.1 of the Financial Institutions Act, RSBC 1996, c. 141 ("the Act"), meaning that an appeal may be taken to the Financial Services Tribunal pursuant to section 242(1)(a) of the Act.
[ 4]. · The powers of this tribunal on such an appeal are set out in section 242.2(11) of the Act: . ''242.2 (11) Th.e member hearing the appeal may confirm, reverse or vary a decision under appeal, or may send the matter bacl( for · .!
No.4114 P. 3/19 Fourth Floor 747 Fort Street Viet.oria Briti&h Columbia Tele~hona: (250) 387-3464 Facsimile: (250} 356-9923 tvleiling Aoore~; PO Sox Q426 Stn Prov Govt Vlctorla BC V8W 9V1
Dec. 7. 2012 2:21PM EAB/FAC No.4114 P. 4/19 DECISION NO. 2012-FIA-002(a) Page 2 · reconsideration, W.ith or without directions, to the person or body whose decision Is under appeal."
[5] As is generally the case in these matters, the submissions made by the parties to the appeal have been entirely in writing, consisting of an initial submission by the Appellant, a submission by the Respondent, and a reply by the Appellant. That part of the process was complete on September 24, 2012. Pursuant to section 242(3) of the Act the Financial Institutions Commission (FICOM) is a party to an appeal of a decision of Council to the tribunal. FlCOM appeared by counsel on the appeal and adopts and. relies upon the entirety of the submissions ·submitted by' the Respondent. · [6] · On November 6, 2012, I requested further submissions on the narrow question of the meaning of the four year cancellation of the Appellant's licence, as ordered by Council. By November 13, 2012, those· supplementary submissions had
been provided.
[7] The background facts include the following. [8] The Appellant was first licenced as a level one General Insurance Salesperson in June 2005. He was upgraded to a level two General Insurance Salesperson in June 2007.
(9] In May 2011 the Insurance Corporation of British Columbia ("ICBC") advised Council that the Appellant had inappropriately accessed the ICBC database system on June 28, August 4 and September 21, 2010, and had viewed personal. information pertaining to a person with the initials YB. This resulted in Council's investigation of the Appellant.
[10] During that period of June to September 2010 the Appellant was facing. criminal proceedings relating to an alleged assault upon YB, who was his former girlfriend. Within those proceedings he had given an Undertaking not to communicate directly or indi'rectly with YB .. That Undertaking was in place during the alleged wrongful access of the ICBC database.
[11] Following its investigation, on November 17, 2011, Council. issued an Order pursuant to section 231(1) of the Act resulting in a condition being placed on the Appellant's general insurance licence, prohibiting direct or indirect access 'to the ICBC database and requiring him to be directly supervised· by the nominee of any insurance agency he represents. · [12] On December 14, 2011, Council gave an Intended Decision pursuant t9 section 237(2) of the Act1 in relation to allegations that the Appellant failed to act in a trustworthy and competent manner, in good faith and in accordance with the usual practice of the business of insurance by:
a) improperly obtaining a third party's confidential information from ICBC's database without the third party's consent; and
Dec. 7. 2012 2:21PM EAB/FAC No.4114 P. 5/19 DECISION· NO. 2012~FIA-002(a) Page 3 b) improperly obtaining a third party's· confidential information from ICBC's database during a period when he was subject to an undertaking with the Royal Canadian Mounted Police to abstain from communicating either directly or indirectly with the same third party.
[13] The Intended DeCision provided that the Appellant 1 s general insurance licence would be cancelled for two years and that he would be required to pay Council's investigation costs of $1 1 125. [14] The Appellant did not accept the In'terim Decision but rather exercised his right under section 237(3) of the Act to require a. hearing. [15] The hearing occurred on February 15, 16 and 17, 2012. Council called seven . wltnesses 1 including an ICBC analyst, an ICBC .investigator, two members of :insurance agencies where the Appellant had worked, two Council investigators, and YB. The Appellant called a single witness, being a car salesman who had had dealings with th.e Appellant and YB, and whose Affidavit was in evidence. An Affidavit of a co-worker of the Appellant was also in evidence.
[16] The record before the Hearing Committee, all of which· is before this tribunal together with the transcripts .of the viva voce evidence at the hearing/ included numerous·documents.
[17] The Hearing Committee found that the Appellant accessed the ICBC database . and in particular YB's personal information thereon, withou~ her consent and for . reasons other than to conduct an insurance transaction, on each of June 28, August
4 and September 21, 2010. · While the Appellant did not testify before the Hearing CoiT,lmittee, it w.as found that in interviews of him by an ICBC investigator and then · Council.investigators he acknowledged having accessed YB 1 s personal information on the database on those dates. His explanation was that he did so on June 28, 2010 as he was trying to learn YB 1 s address so he could return apartment k!=ys to her, and did so on August 4 and 21 1 2010, at her request relating t6 insurance coverage. [18] The Hearing Committee reported to Council and recommended that the Appellant!s general insurance licence be cancelled for four years and that he pay investigative and hearing costs in the aggregate amount of $28,547.46. Council
accepted the recommendation and made an Order accordingly.
ISSUES ON APPEAL [19] While the Notice of Appeal filed June 18, 20121 lists eight separate grounds of appeal, only some of those were taken up in the Appellant's subsequent written appeal submission. I agree with counsel for the Respondent that those grounds not pursued ln submissions must be taken as having been abandoned.
[20] The Appellant 1 S submissions are made pithilyi with ·minimal reasoning or development. From his Notice of Appeal and appeal submissions, I extract the following positions:
Dec. 7. 2012 2:22PM EAB/FAC No. 4114 P. 6/19 DECISION NO~ 2012-FJA. . Q02(a) Page 4 (a) he was denied natural justice, and/or the Order cannot be supported, . given that:
(i.) Council's case was based on hearsay evidence in the form of unsworn statements by the Appellant; and
(ii) the Hearing Committee wrongly drew a negative inference from the Appellant's failure to give .evidence before it.
(b) the Hearing Committee erred and was punitive in taking into account the Undertaking given by the Appellant to a peace officer, which he did not breach; and
. . . . (c) the four year "suspension" is "shocking and manifestly inappropriate it! the circumstances". · STANDARD OF REVIEW t21] The Appellant has said nothing of standard of review, either in his initial appeal submission ·or in his reply. · [22] The Respondent submits that the applicable standard on the issues raised on this appeal is reasonableness. Citing Dunsmuir v. New Brunswick1 [2008] 1 S.C.R. 190 and Brewers; Distributor L.td. v. Brewery Winery and Distillery Workers, Local 300 and Superintendent of Pensions (Financial Services Tribunal) 2010-PBA-001 1 it argues that the issues on appeal are a combination of law and fact with elements of·
discretion and were within the expertise of the. Hearing Comm1ttee 1 thereby calling for a measure of deference. [23] It may be argued that the language of "correctness" and "reasonableness" is not really apt when the issue Involves the ·assessment of natural justice and pro.cedural fairness: Djakovic v. British Columbia (Workers Compensation Appeal Tribunal), 2010 BCSC 1279 at para. 37. The issue Is simply w~ether the procedure was fair ln all the circumstances, taking into account the various factors outlined ln Baker v. Canada, [1999] 2 S.C.R .. 817. I do·not need to finally decide that point in this case, mainly because I do not think the error on this ground· is properly characterized as being an error of natural justice. In asserting that the evidence was hearsay and an adverse inference was wrongly drawn from his failure to testify, the Appellanfs underlying point must be that the evidence did not support the Order made, a position in my.view that attracts a reasonableness standard. In advancing that position the Appellant cites mixed fact and ·law, as the Respondent has submitted.
[24] Similarly, and while the Appellant in the. opening part of his. first appeal submission refers to constitutional principle in relation to the irT)portance of livelihood, he does not develop a constitutional argument ·at all (leaving aside whether one could even be available), and must be taken to simply be emphasizing the deprivation he suffers by the cancellation of his insur;;;~nce licence; certainly r he does not even i.n ~hat opening statement challenge the constitutiona.lity of the
Dec. 7. 2012 2:22PM EAB/FAC No.4114 P. 7/19 DECISION NO. 2012-FIA-002(a) Page 5 provisions of the Act permitting such cancellation. I take those opening words to amount to an attack on the four year period that is the subject of the Order made, which is indeed one of the positions he takes on appeal. The .appropriateness of the . penalty was a matter within th.e discretion of the Hearing Committee andr at least ih the absence of any submission of the Appellant to the contrary, is one I will regard as subject to the reasonablenessstandard of review.
[25] · Accordingly/ I accept the Respondenfs submission that the reasonableness standard is to be applied to all issues pursued on appeal.·
. SUBMISSIONS ON APPEAL [26] · I will take the Appellant's submissions in turn. (a) Whe.ther DeCision Based on Hearsay Evidence [27] At paragraph 9 of the Appellant's primary appeal submission, lt is stated that:
"The Insurance Council essentially found the appellant guilty on hearsay evidence derived from interviews by an ICBC investigator and co·uncillnvestigators".
[28] In his reply submission, the Appellant argues that where a tribunal relies almost entireiV on hearsay evidence to rea:ch its decision it will generally breach the duty of fairness, citing Bond v. New Brunswick (Board of Management) (1992), 95 D.L.R._(4th) 733, 8 Admin. L.R. (2nd) 100.
[29] I pause to note that I have taken the Appellant's entire reply submission into consideration 1 even though much or all of it is not proper reply as it simply furthers his primary argument wlth little relation to the submission made by the Respondent.
[30] The threshold difficulty with the Appellant's hearsay argument is that the statements he himself made to investigators prior to the hearing would, certainly as a matter of general practice, be considered admissible in evidence, given that he is -, a party to the proceedil)g. It may be that a question of vo!untariness could arise ,,·' ~: ) but this was not raised on appeal (nor do I suggest it would have been a· meritorious argument; I note it was attempted before and rejected by the Hearing Committee). But to suggest that the Appellantfs own pre-hearing stC3tements, sworn or unsworn, could not amount to proper evidence at the hearing is fundamentally mistaken. While there may be some debate as to whether a pre-trial (or pre-hearing) admission by a party constitutes hearsay at all or1 rather, should be seen as an exception to the hearsay rule 1 it ls well-entrenched in our law that such voluntar-Y statements are admissible in a subsequent trial (or hearing) against the party who made them. The point has ·been summarized as follows:
Dec. 7. 2012 2:22PM EAB/FAC No.4114 P. 8/19 DECISION NO. 2012~FIA-002(a) Page6 "6.396 Traditionally, out-of-court assertions made by a party to the proceedings have been regarded as admissible at the instance of the opposite party as an exception to the hearsay rule. ... ·. . . 6.398 Although there is a consensus among the noted writers on the subject of evidence that an admission constitutes admissible evidence, they disagree as to its rationale and Its use. According to Morgan, admissions properly fall within an exception to the hearsay rule because prima facie they fit within the definiti.on of hearsay, being out-of-court statements, not subject to cross~examlnatlon, and Introduced as evidence of the truth of the facts contained therein. He added that an exception is . justified, not on the usual ground of trustwo.rthiness, but· because of the general advers.ary theory: · The admissibility of an admission made by the party himself rests not upon any notion that the c;ircumstances in which it was made furnish the trier means of evah.1ating it fairly, but upon the adversary theory of litigation. A party. can hardly objeet that he had no opportunity to cross-examine or that he Is unworthy of credence save when speaking under the sanction of an oath .. ·
Wigmore, on the other hand, does not think that any exception is ·necessary to permit admissibility of ad.rnissions because the mischief, which the hearsay rule was designed to prevent, Is non-existent, Wigmore's and Morgan's . reasonings, however1 follow the same.pattern. The main objection to hearsay evidence is that the declarant is not in court under oath and not subject to cross-examination. n· is 11/oglcal to suggest that )tis objection8ble for the admission to be received because there Is no opportunity to cross-examine
the declarant. If the party made the statement, the paity cannot argue that he or she has lost the opportunity ot cross-ex:8mining himself for herself, nor complain. about the lack of personal oath. Moreover, it is always open to that ·party to take the witness box and testify either that he or she never made the
admission or t(J qualify it In some other way. Strahorn articulated a different basis of admissibility. To him, admissions are evidence of conduct and are offered as clrcumstantial1 rather than assertive, evidence. These theories are not mutually exclusive. Elements of trustworthiness and the adversary theory and original evidence .all combine together to justify' the reception of this kind of evidence."
Sopinka, Lederman & Bryant, The Law of Evidence in Canada; 3rd ed.1 20091 at .. pages 361-363 (emphasis added) [31] To demonstrate that the Hearing Committee erred in admitting the investigators' evidence of what they had been told.by the Appellant himself would have required a careful and very cqnvincing legal analysis, and certainly more th!;ln wh.at has been presented on this appeal. · [32] Whether to take the stand at the hearing, and perhaps explain, place in context, elaborate on or distance himself from the statements he had made to the investigators, was entirely the Appellant's prerogative. He appears to assert on
Dec. 7. 2012 2:23PM EAB/FAC No.4114 P. 9/19 DECISION NO. 2012·FIA-002(a) Page 7 appeal that Council was required to.call him as a witness to rectify the hearsay. nature of his pre-hearing statements; if indeed he makes that submission, I reject it. Assuming that Council had the right to compel the Appellant to testify, which. I think likely but is a point I need not decide, there is no basis for asserting its · oblig·ation to do so - not even a practical obligation, iri the sense of whatwas needed to prove its case, given th·e clear admissibility of the Appellant's -out-of-hearing statements (again, short of a problem with voluntariness) through the evidence of ·others.
[33] In light of my conclusion on this issue, I do not need to consider the- abilities of a tribunal such as the Hearing Committee to _admit pure hearsay evidence, though I agree with the Respondent that the law generally affords an administrative ·tribunal greate~ flexibility on that score than it does the Courts.
(b) Whether Adverse Inference Drawn [34] As stated 1 _the Appellantargues that the Hearing Committee erred in drawing an adverse inference· from his failure to testify. The first question to consider is whether it in fact drew such an inference .
. [35] The following are the Hearing Committee's' references to the Appellant failure -to testify (I note that Mr. Elworthy was the Appellant's counsel below~:
"With regard tO the evidence provided by the ICBC Investigator and Counc:;il investigators concerning their resp.ectlve Interviews, Elworthy presented no evidence to explain or refute the Licensee's statements to the investigators• ... (at page 6). · "Eiworthy's principal argument was the thlrd party was the instigator in this ·matter and she was tryir,g to get even or frame the Licensee. Elworthy also implied the third party had attempted similar actions previously with. another boyfriend. Unfortunately, Elworthy provided no evidence to support this premise and elected not to have the Licensee· give evidence directly at the Hearing (at page 7).
The Hearing Committee heard no direct evidence from·the Licensee to explain. his statements to ICBC and Council. In fact, the position put forward by the Licensee was that he was deceived by the third party into accessing her data, in a plot by the third party to get even with him. Unfortunately, the Licensee elected riot to testify at the hearing, ·resulting in the HeC~ring Committee being left with two different scenarios: one scenario supported by the testimony of a number of witnesses, and another implied by the Licensee (at page 8).
The Hearing Committee wished It could have heard directly from the. Licensee, particularly in light of the compeJilng evidence presented
against him. Based on the above, the Hearing Committe.e found the Licensee had accessed the third party's personal information on i.CBC's
1 S
Dec. 7. 2012 2:23PM EAB/FAC No.4114 P. 10/19 DECISION NO. 2012-FIA-002Ca) Page 8 database, without the third party's consent- and for reasons other than to conduct an insurance transaction. While such access was inappropr~ate;. it was even more egregious because the Licensee was the subject of a voluntary restraining order {at page 8).
In making reference to the hearing c:osts, the Hearing Committee acknowledged the Licensee was subject to a 238 Order. Under these circumstances, Council has generally been reluctant to assess hearing c:::osts. In this matter, the Hearing Committee found the Licensee provided no evidence which assisted to a better understanding of the events that resulted in the Intended Decision, nor had he acknowledged the seriousness of his actions. Instead, the Licensee chose to suggest or imply other motives were at play, without producing any credible evidence to support his position {at page 10).
The Hearing ·Committee felt this failure on the part of the Licensee to . make a reasonable case should have bearjng as to whether he should be assessed some or all of council's hearing costs. If Council decides hearing costs should be assessed, additional time should b.e given to both parties to make submissions on hearing costs" {at page 10).
{emphasis added)
[36] The· Respondent's submission on this issue is twofold. First, citing O'Connell v. Yung, 2012 BCCA 57 it argues it is permissible for a Court or tribunal to ·infer that the reason a party has not testified is that their evidence would have harmed their case. Second~ it argues that, even thoughthe Hearing Committee·in this case therefore may have been permitted to draw that inference, ·it in fact did not do so, but rather was simply commenting on the practical circumstance in which it was left .on the available evidence given the Appellant's failure to testify ..
[37] I agree with the sec~nd of these points. There is no proper basis for concluding that th.e Hearing Committee inferred the Appellant's evidence would have harmed his case. It expressed plainly enough that it would have preferred the Appellant to have testified., but that is not the same· as suggesting that his evidence· would have been contrary to his interests. Where an adverse inference from a failure to testify is drawn, the language to that effect is typically plain and unmistakable. There is·no such langu.age here.
[38] · The Hearing Committee observed that the p.. p pellant's defence" ... consisted primarily of an argument that there was a conspiracy to frame him" (page 7). As can be seen from the above $xcerpts, the position taken by the Appellant's counsel at the hearing (who is not his lawyer on this appeal). was that YB instig·ated this· matter and was behind the alleged framing, It was in that context that the Hearing Committee noted more than once the Appellant's failure to testify or, indeed, to call any evidence to support this defence theory. In light of the evidence against the Appellant in this case, one can readily see that such a theory would have needed persuasive evidence from the defence side, and very likely from the Appellant himself in order to be seriously entertained. As it was, the only witness called by
Dec. 7. 2012 2:24PM EAB/FAC No.4114 P. 11119 DECISION NO. 2012-FIA-002(a) Page 9 the defence was a person who spoke of YB's demeanour during discussions around the purchase of a car, and if the transcript .Is anything to go by, this evidence did nothing to advance the defence. · [39] I reject the Appellant's argument that the Hearing Committee .drew an adverse inference from his failure to testify. Therefore, the question 'of whether it did so wrongly, of which I would have serious doubt, does not arise.
(c) Undertaking to the RCMP [ 40] The Appellant submits that the Hearing Committee was punitive and improper In its references to his access to the ICBC d!=ltabase occurring after he had undertaken to a peace officer to refrain from direct or indirect. contact with YB.
[41] T~e finqings of th~ Hearing Committee indude the foflowing: ''The Hearing .Committee found the evidence and testimony tQ be overwhelmingly against the Licensee. The Hearing Committee found the Licensee did or attempted to access the personal information of a third party for reasons other than to 'complete an insurance , transaction on three separate occasions. These attempts, while serious in themselves, were evera more serious as the Licensee was subject to a voluntary undertaking not to have any direct or Indirect contact with the third party,"
[42] Similar statements are made at two later points of the Reasons, the last being in the context of penalty.
' ' ' [ 43] The Respondent argues in part that the Hearing Committee did not express any finding that the Undertaking had been breached. I· agree that it did not do so.
[44]. It did, however, regard the existence of the Undertaking, even if not · breached 1 as an aggravating circumstance in considering the Appellant's wrongful actions in accessing information about YB. [45] I do riot think it unreasonable for the Hearing Committee to have viewed the matt.er in that way. Indeed, I believe it was correct to do so. While the Unde,rtaking is certainly no proof in itself that the Appellant had previously acted inappropriately in relation to" YB, it was an important interdiction, closely related in time and subject matter to the wrongful accessing of YB's personal information, and it called for particular circumspection on the part of the Appellant. No argument has been directed to whether accessing YB 1 S personal information on the database . could amount to an indirec~ attempt to conta~t her, or could have been a precursor to contact or attempted contact with her, but the Undertaking and the· Wrongful access are not such distinct events that it was unfair to consider them alongside .. each other. counsel f.or the Respondent rightly points out that the requirement of 'trustworthiness in a licensee extends beyond insurance business activities, as set out in section 3 of Council's Code of Conduct. The Undertaking and the dissolution . · of the relationship between the Appellant and YB were .part of the Immediate backdrop to his having thrice wrongfully looked at het confidential information in
Dec. 7. 2012 2:24PM EAB/FAC No.4114 P. 12/19 DECISION NO. 2012-FIA-002(a) Page 10 . breach of his professional duti·es. The tribunal. members were entitled, and indeed should be expected, to consider such circumstances surrounding the Appellant's improper actions.
(d) Canc_ellatlon for a Fixed Term · [46] The crux of the Order made by Council following the report ofthe.Hearing Committee was that the Appellant's general.insurance licence be "cancelled for four years", The Appellant submits on appeal that the initial determination in the Interim Decision of a two year "suspension" (it was in fact said to be a cancellation) should not have been changed, and that four years is shocking and manifestly inappropriate. · · [ 47] In Its discussion of penalty the Hearing Committee referred to three prior decisions made by Council, being Derek David Henneberry, May, 2007 1 Jagjit Singh Cheema, Julyr 2006, and Meredith Holly Phendler, May, 2009, all involving wrongful access to the ICBC database by a licensee where the resultant order wa~ that the licence was cancelled for a minimum period of two years. The Hearing Committee noted that those matters all featured a single instance of wrongful access, in contrast to the present case which involved three such incidents. It also referred to the Undertaking not to have contact with YB and to the Appellant's refusal "to · acknowledge his actions and failure to give evidence of remorse or appreciation for the ·seriousness of what he had done' 1 (at page 1_0). [48] The Respondent refers additionally in its submissions to C:ouncWs decision in · Jaswinder Singh Gill, March, 2011 1 also Involving a single instance of wrongful access to the ICBC database1 and where an Order was made for a one year licence suspension . .[ 49] In the present case the language used by both the Hearing Committee in its Reasons and Council in lts Order is different from that used in these prior decisions, and not simply in relation to tlm~ period. Relative to the other authorities mentioned 1 the notion of a cancellation of licence for a fixed period is unique. The Hearing Committee had recommended that Council consider a four year licence cancellation without discussion of where the matter would stand at the end of that term. Council followed that recommendation, ordering simply that the Appellant's licence be cancelled. for four years from the date of the Orderr without elaboration. All of this contrasts with the language used in Henneberry, Cheema and Phendler, where the Order referred to cancellation for a minimum period, and that in Gil/ where.the Order called for a one year suspension. · .. [50] In their main submissions on this appeal both parties referred to the Order below being for a suspension rather than cancellation·. The Respondent 1 for instance, submitted (at its paragraph 83) ·that the" ... 4 year suspension is reasonable ln the circumstances 11 , [51] Certain questions arise from this, the most important being whethE;!r the effect of Council's Order Is that the Appellant would again be licenced at the expiry of the four years, or perhaps would simply be eligible to seek reinstatement. The
_, 1 I
Dec. 7. 2012 2:24PM EAB/FAC DECISION NO. 2012·FIA·002(a) . point is of course important to the parties and it is one that needs to be clear as ·this appeal is adjudicated .. For lnstance1 penalty imposed upon the 'Appellant is considered against those imposed upon other licencees in relevant prior cases. Accordingly'/ I gave the parties the opportunity to make a supplementary submission in relation to the meaning here of the four year cancellation.
. . [52] The.Appellant's position is that the Order made should be construed as a four year suspension 1 as both parties seemed to do when making their initial appeal submissions. He submits that the four year time limitation cleariy indicates a temporary state of affairs1 and the absence in the Order of reference to a minimum 'I perfod (as, apparently, occurs in some cases) and any need for the Appellant to I reapply for his licence means that, when the four years has elapsed/ he' must be placed in the position he was in before the Order was made. The Appellant argues that it would be wrong and speculative to add restrictions to the Order that Council itself did not impose.
[53] The Respondent submits that Council's decision to cancel rather than suspend the Appellant's licence indicates it wishes the Appellant to have to reapply for hls lrcence at the end of the penalty period, and that he will then have to . demonstrate that he meets Council's education requirements. It also submits that the Appellant's suitability would need to be considered, though this would be limited to conduct occurring following CouncWs decision and Order. In contrast, the Respondent says that a suspension of the Appellant's licence would have entitled · him to automatic reinstatement at the end of the period of suspension, provided he had made his annual filings a-nd fulfilled .his continuing education requirements. However, ln the Appellant's favour, the Respond,ent states that the absence of reference to a minimum period means that a re-application by the Appellant would not have to be brought b~fore Council for approval unless new information calls his suitability ·for licencing into question. S.hort of that, a re-application could simply be processed by Council staff in accordance with general licencing requirements.
[54] The Respondent did not comme.nt in its supplementary submission on why in its main appeal submission it referreq to a four year suspension of the App.ellant's licence/ but clearly it does not maintain that characterization.
[55] The cancellation Order in this case was made pursuant to section 231 of the Act. In particular/ section 231(1)(g) confers power on Council to "su~pend or cancel the licence of the licencee", While neither counsel referred to them, since inviting submissions on the meaning of the four year cancellation I have noted subsections 231(2) and 231(3.1), which provide:
(2) A person whose licence·is suspended o.r c::anc;:elled under this section must surrend~r the llcer'ice to the council immediately. . ... (3.1) On application of the person whose licence is suspended under subsection (l)(g), the council may reinstate the licence if the deficiency
that resuhed in the suspension is remedied".
No.4114. P. 13/19 Page 11 . ' the point needs tq be clear when the
Dec. "7. 2012 2:25PM EAB/FAC No.4114 P. 14/19 DECISION NO. 2012-FIA~002(a) Page 12 ' ' [56] Looking at those subsections together, it is clear that a licence surrendered as a result of suspension may on application by the licencee be reinstated,. assuming the deficiency resulting in the suspension is considered to be remedied. There is no provisi0n, however, to seek reinstatement of a licence surrendered as a result of cancellation. That makes sense, given that. the ordinary meaning of the word cancellation would connote that the thing ceases to· exist. The notion of cancellation for four years ·seemed on its face internally contradictory, which is in part what prompted my invitation for supplementary submissions.
[57] Based on this case and at least three earlier cases, ·it is clear that there is a pract'ice by which Council sometimes orders cancellation of insurance licences for · particular time periods, whether minimum or, as in this case, fixed. With respect, I would have preferred that counsel discuss in their supplementary submissions how . the legislation, and in particular section 231 of the Act, bears on that practice.
Their.not havi.ng done so, and in the absence· of full submissions on the point, I am reluctant to make a general pronouncement that Council's practice in this regard is flawed. Perhaps, for instance, while it appears from .section 231 that a cancelled licence cannot be reinstated 1 a pers.on whose licence has been cancelled can apply afresh for anothe·r licence, and. perhaps what Council is indicating in these types of Orders is that it will not permit such an application until a c~rtain time period has passed. If that is the intention in these Orders, in m·y view the language should plainly reflect that. Indeed1 I r.espectfully recommend that Council review its practice in th.is regard, consider whether such Orders are compliant with the legislation and, if they are considered to be, henceforth use clear language to convey to licensees the effect of any such Order mad·e.
[58] With respect, I do not find either of the supplementary submissions . especially helpful. Firstly, in submitting that he is entitled to automatic · reinstatement at the end of the four years as the Order was effectively for a suspension 1 the Appellant does not address section 231(3.1) which, regardless of the ultimate view taken of its meaning, must enterthe discussion. ·[59] Secondly, I c~nnot accept the Respondenfs argument that the Appellant is required to reapply for "his licence" at the end of the penalty periqd, as the legislation does not seem to recognize reinstatement of a cancelled licence, at all. Further, while the Respondent contrasts cancellation with suspension, submitting that the latter would entitle a licensee to automatic reinstatement at the end of the· term (subject only to annual filings and continuing education), like the Appellant · the Respondent does not account, ohe way or another, for the language· of section
2~1(3.1).
[60] I say "one way or another" because it occurs to me that sec;:tion 231(3.1) may possibly be· applied in different ways. Council may consider at the end of a suspension term whether the deficiency that led to the Order has been remedied. Alternatively, Council may do that at the onset, immediately determining the passage of time-needed for remediation of the deficiency to ·occur, presumably meaning that, subject perhaps only to administrative matters, an effective right to reinstatement would arise when the time expired.
Dec. 7. 2012 2:25PM EAB/FAC No.4114 P. 15/19 DECISION NO. 2012~EIA-002(al Page 13 [61] In other words, it may well be that the consideration of remediation pu.rsuant to the section can occur prospectively·.or retrospectively. I deliberately use tentative language here as I have not had the. benefit of argument on the point.
[62] What has been stated in argument here ls the position of Council that a somewhat limited inquiry is intended in this case as to the Appellant's suitability for reinstatement when the four years have passed; that is a simple paraphrase of the supplementary sub.mission of the Respondent described in paragraph 53 above. · This suggests ·a review less comprehensive than what I expect could be undertaken on the strength of the language of section 231(3,1), and therefore seems more consistent with the view that Council has already determined what is needed here for the Appellant's remediation, rather than reserving to itself the right to do ·so in four years 1 time. On the material I have, that is the best interpretation I can give to the matter. While it would be for Council in the end to consider reinstatement as appropriate and with.in the bounds of its legislative mandate, the Appellant may take some c(Jmfort that the supplementary submission of the Respondent on this appeal portends/ as I have said, a limited review of that question. ·
[63] While, agaii1 1 I will not in these circumstances pronounce on the propriety of CouncWs practice of sometimes ordering cancellation for a particular period/ I will now consider whether the Order to this effect was reasonable in this case.
[64] . I have concluped it was not reasonable to so order in this case and that a suspension should be SLJb.stituted here for can-cellation, for these reasons:
a) licence cancellation for four years, to the extent the phrase contemplates · possible reinstatement of a cancelled licence, appears inconsistent with section 231 of the Act;
b) the meaning of a licence cancellation for four years is at best unclear and this term of the Order is therefore problematic; · · c) as explained above, I cannot accept either of the parties' supplementa·ry submissions attempting to clarify the point; and
d) an Order for suspension .will be much clearer in its articulation and · 'implementation than the Order made. · · [65] I would vary the cancellation term of the Order accordingly. The remaining question to consider is whether the four year period is reasonable.
(e) Reasonableness of the Four Year Period ' . [66] I will begin by considering the cited case law in more detail. [67] In Henneberry~- supra, the licencee accessed the·ICBC database t;Jt the r~quest of someone he had known since childhood and who asked him to check on a licence plate of a vehicle he was thinking of purchasing. Jhe licencee did not question the request and provided the information; assuming it would not be use.d
Dec. 7. 2012 2:26PM. EAB/FAC No.4114 P. 16/19 DECISION NO. 2012-EIA. . 002(a) Page 14 for an unlawful purpose, despite his knowledge that the other Individual had some prior involvement with law enforcement a.uthorities. Also, and entirely separately, the licen~ee over a period of about two years processed a.t least seventeen · transactions, two for himself and about fifteen for friends and acquaintances, in the form of altered ratings of motor vehlcles to improperly a'void the need for an · · AirCare inspection. Council noted that these transactions prejudiced ICBC and equid have·been detrimental to the policyholders had claims arisen, as material misrepresentations had been made to the insurer. Council referred to the licensee's .conduct as amounting to a serious breach of trust. As in the present case, Council found that the licencee was not forthright when questioned and showed no remorse; In the form of an Intended· Decision, Council found that the licencee was . not SL!ltable to hold an insurance licence for a minimum period of two years (and that costs be paid). It also noted that, combined with an earlier period in which the licencee did not hold his licence following its cancellation by his employer, the total period in which he would not have a licence would be a minimum of about three years/ which Council indicated. it hoped would be sufficient for his rehabilitation.
[68] Council in Henneberry stated that the facts there· were more serious than in Cheema, supra·. The Hearing Committee in the present ca!;je noted thatr in Cheema 1 the licencee had accessed ICBC's database to obtain information on a vehkle with the intention of sharing it with an acquaintance known to be involved in criminal activity and further that, while the information was not ultimately shared· with that person, this was only because the licencee noticed that the vehicle was registered to ICBC itself~ In Henneberry, it was noted that the acqu·aintance in the Cheema case had·.recently been released from prison for a weapons offence and had been convicted of other criminal offences in the past (I note that the parties to this ·appeal have not submitted a copy of the decision in Cheema, other than the decision of the Financial Services Tribunal overturning an initial outright cancellation of the licence essentially due to the lack of reasons given/ before remitting the matter for reconsideratiOn by Council).
[69] ·Phend/er, supra, also involved a single instance of -access to the ICBC database/ in that case for the purposes of the licencee herself after she had been .·involved in a road rage incident. A number of facts were in co.nflict and the complainant's version of them was accepted over that of the licencee .. While the licencE;,le did show remorse, Council thought the matter roughly analogous to the facts In Cheema, in part because in both cases the information acce·ssed was not ultimately used.
[70] The misconduct in GW, supra, was clearly less serious, as reflected by the Order for a one year suspension. There/ the licencee provided confidential information from !CBC's database to a person to whom a client had introduced him and· who said he wanted the information to place· a lien on a vehicle. The licencee · was not aware of any improper purpose to which the information would be put, had no personal interest in acces~ing the information/ said that he had been caug.ht off guard by the request and was found to be remors,eful.
Dec. 7. 2012 2:26PM EAB/FAC No.4114 P. 17/19 DECISION NO. 2012-FIA-002(a) · Page 15 [71] ·· The misconduct in .the present case was certainly serious. The Hearing Committee noted the following aggrava~ing factors in relation to the Appellant's behaviour: · ·. (a} he wrongfully accessed the ICBC database on three occasions over a period' of roughly three months;
(b) the private information he accessed on those occasions concerned YB, a former girlfriend of the Appellant, after the relationship h;:td ended very badly and while a criminal charge against the Appellant in relation to his behaviour toward YB was pending;
(c)· all of that occurred when an Ur{dertaking he had given to ·a peace officer to refrain from any kind of contact with YB was in effect; and
(d) The Appellant was distinctly lacking iri remorse, accusing YB (through · counsel) of having framed him, which allegation was baseless.
[72] In considering penalty, the Hearing Committee noted that trustworthiness is a fundamental element of the professional requirements' set out in Council's Code of Conduct. It also discussed the need for licencees to adhere to strict standards regarding personal integrity, reliability and honesty, and that it is a cornerstone of the insurance industry that when members of the public provide private information to licencees and .insurers, they must be ·able to do so with confidence that the information will be protected. None of those propositions can be disputed 1 nor have been disputed by the Appellant. [73] Apart from challenging the relevance of the Undertaking, a point on which I have already expressed my views in paragraphs 40 to 45 above, the Appellant emphasizes in relation to the· four year penalty period that lt was a substantial Increase over the two. year period set out in the Intended Decision, which he chose not to accept. He does not go so far as to say that a hearing panel cannot impose a penalty greater than that contained in an Intended Decision. While the licencee has the undoubted right to reject an Intended Decision and have his or her day in Court/ so to speak1 what comes with that is the possibility that the hearing committee,· which is mandated to render a fair and just decision in light of the evidence and submissions given before it, will ultimately take a .sterner view of the licencee's conduct than did Council at the pre-hearing 1 Intended Decision stage. If there was a rule that a hearing committ~e could not impose a result less favourable ·to the licencee than an earlier Intended Decision, there would be little for the licencee to lose (oti'Yer than time ·and cost, perhaps) in requiring a hearing,' and such hearings would presumably become far more common than they are presently.
[74] In fairness to the Appellant{ it should be pointed out that there does not appear to have been any evidence that he actually used the information he wrongfully reviewed on the ICBC database., His reason for accessing the · information is unknown 1 as the explanation he gave to investigators (essentially/ to. know where to return keys and later at the request of YB) was not accepted by
Dec. 7. 2012 2:27PM EAB/FAC No.4114 P. 18/19 DECISION NO. 2012-FIA-002(al Page 16 either the. investigators or the Hearing Committee, and there of course was no evidence from the Appellant on the point. Whether revi~wing the information was preliminary to intended contact with YB, or arose from.mere curiosity as to where sh~ was living, or was driven by some other purpose, is pure conjecture. What is clear, however, is that these reviews were repeated and were serious breaches of duty on the part of the Appellant. .His lack of remorse and unfounded allegations against YB at the hearing only compounded matters for him.
[75] But is the four year penalty period reasonable? Based on the prior cases submitted by counsel it would seem to ·be the high water mark for penalties in matters of this kind. The misconduct in this case is more serious than that in all of the cases cited, with the arguable exception of Henneberry, in which the licencee wrongfully accessed the ICBC database on only o.ne occasion but oh a'bout seventeen other occasions· dishonestly processed altered vehicle ratings. That was, as Council noted in that case, misconduct of a very serious kind, even without the overtones as in this case of crimlna·l assault proceedings and an Undertaking to stay away from the very person whose privacy was violated. Reasonable people could · differ over which of the two cases features more egregious conduct ..
[76] As indicated earlier, Council in Henneberry considered that the cumulative period of time within which the licencee would not be pr·acticing insurance, both before and after the Order was made, was three years: The implication is that but for the pre-Order period without a licence the Order woulq have stipulated a penalty period of greater than two years. That is consistent with Council's expressed view in Henneberry that the facts were more serious than in Cheema, where the imposed penalty period was two years. Henneberry can fairly be seen as in effect featuring a three year penalty period.
[77] There are two other points of distinction between Henneberry and the present case. The first is that Henneberry was ·an Intended Decision, made without the benefit of a full hearing. What would have resulted had there been a hearing in that case is of course unknown. Secondly1 ·the penalty period in Henneberry was a mini'mumf the possibility. of a longer prohibition period therefore clearly contemplated. Whether, in the· end, the prohibition period would have spanned the intended minimum aggregate of three years, four years or more, is also unknown.
[78] All of that being so, I do not regard the four year period in the present case as necessarily any greater than the penalty period in Henneberry. Apart from that, while previous similar cases certa.inly provide guidance as to appropriate penalty, :·l circumstantial di~tinctions will always exist; the process of comparing and applying ) penalties is. certainly not, and is not intended to be, a precise exercise. Having taken the guidance offered by those earlier decisions, and on consi'deration of the circumstances of the present case, including the factors listed in paragraph 71 above, I consider the four year p.edod to be within the bounds of what is reasonable.
Dec. 7. 2012 2:27PM EAB/FAC No. 4114 P. 19/19 PECISION NO~ 2012·FIA·002(a) Page -17 DISPOSITION [79] Accordingly, I confirm the decision of Council in this case except for the variation from a cancellation to a suspension. The paragraph numbered 1 in Council's Order of May 17, 2012 shall therefore be changed to:
"1. The licensee's general insurance licence is suspended for four years from the date of this Order," · and the balance of the Order Is unchanged . . [80] Whlle my present inclination is that no costs of this appeal should be awarded, if either party wishes to make a submission on ·costs they may do so by December 21, 2012.
Patrick F. Lewis, Panel Chair Financial Services Tribunal
December 7, 2012
In the Matter of The FINANCIAL INSTITUTIONS ACT (RS 1996, c.141) (the "Act")
and INSURANCE COUNCIL OF BRITISH COLUMBIA ("Council")
and MOHAMED ALIE JALLOH (the "Licensee")
ORDER In accordance with section 23 7 of the Act, Council convened a hearing at the request of the Licensee to dispute a Council order pursuant to section 238 of the Act, dated November 17, 2011, and an intended decision of Council dated December 14, 2011, pursuant to sections 231, 236 and 238 of the Act.
The subject of the hearing was set out in a Notice of Hearing dated January 10, 2012. A Hearing Committee heard the matter on February 15, 16 and 17, 2012, and presented a Report ofthe Hearing Committee to Council at its May 15,2012 meeting.
Council considered the Report of the Hearing Committee, as well as subsequent submissions regarding the assessment of hearing costs and made the following Order pursuant to sections 231, 236 and 241.1 ofthe Act:
1. The Licensee's general insurance licence is cancelled for four years from the date of this Order.
2. The Licensee is assessed Council' s investigative costs of$1,975.00. 3. The License is assessed Council's hearing costs of$26,572.46. 4. As a condition of this Order, the Licensee is required to pay the above-ordered investigative and hearing costs no later than August 17, 2012.
This Order takes effect on the 17th day of May, 2012.
B.Comm, CFP surance Council ofBr· ish Columbia
INSURANCE COUNCIL OF BRITISH COLUMBIA ("Council")
REPORT OF THE HEARING COMMITTEE IN THE MATTER OF THE FINANCIAL INSTITUTIONS ACT (S.B.C. 1996, c. 141) (the "Act")
AND MOHAMEDALffiJALLOH (the "Licensee")
Date: February 15, 16 and 17, 2012 9:30a.m.
Before: Barbara MacKinnon Chair Brett Thibault Member Frank Mackleston Member Location: Suite 1650, 885 West Georgia Street Vancouver, British Columbia
Present: David McKnight Counsel for Council Scott Harcus Counsel for Council Mohamed Alie Jalloh Licensee Stewart Barrington Elworthy Counsel for Licensee Ian Giroday Counsel for Hearing Committee Background and Issues On November 17, 2011 , Council issued an Order with respect to the Licensee, pursuant to sections 231 and 238 of the Act, resulting in a condition being placed on his general insurance agent's licence prohibiting direct or indirect access to the Insurance Corporation of British Columbia's ("ICBC") database and a condition requiring the Licensee be directly supervised by the nominee of any insurance agency he represents.
. . ./2
Report of the Hearing Committee Mohamed Alie JalJoh 163889-!1024 Page 2 oflO
On December 14, 2011, Council issued an Intended Decision, pursuant to sections 231, 236 and 241 of the Act, notifying the Licensee that Council intended to take additional disciplinary action. Council's Order and Intended Decision stemmed from allegations the Licensee failed to act in a trustworthy and competent manner, in good faith and in accordance with the usual practice of the business of insurance by:
1. improperly obtaining a third party's confidential information from ICBC's database without the third party's consent; and
2. improperly obtaining a third party's confidential information from ICBC's database during a period when the Licensee was subject to an undertaking with the Royal Canadian Mounted Police to abstain from communicating either directly or indirectly with the same third party.
The purpose of the Hearing was to determine if the Licensee is able to carry on the business of insurance in a trustworthy and competent manner, in good faith and in accordance with the usual practice, as required under Council Rule 3(2) and pursuant to section 231(1)(a) of the Act. If the Hearing Committee determined the Licensee acted in a manner which brought into question his suitability, it may recommend to Council appropriate disciplinary action in the circumstances.
The Hearing Committee is constituted pursuant to section 232 of the Act. This is a report of the Hearing Committee, as required by section 223(4 ) ofthe Act.
Voir Dire Before the hearing commenced, the Licensee's legal counsel, Stewart Barrington Elworthy ("Elworthy") sought to address the admissibility of proposed evidence relating to three interviews conducted by both ICBC and Council investigators with the Licensee. Elworthy argued neither ICBC nor Council advised the Licensee of his right to legal counsel prior to being interviewed and this represented a breach of section 1O (b) of the Canadian Charter ofR ights and Freedoms ("Charter"). Elworthy further argued that, as a result, any statement the Licensee may have made may not have been voluntary and, arguably, under duress. As a consequence, none ofthis evidence should be considered by the Hearing Committee.
In presenting his arguments, Elworthy referred to a number of decisions (Wiegand, Paternak, Voss, and Thompson) . Each of these cases involved criminal matters and addressed tl1e right of an individual to legal counsel and the validity of an individual's statement when collected by an agent of the state, as a result of threats or coercion. Elworthy argued the Licensee had not attended these interviews voluntarily and, had he known what was to be discussed, he may have chosen not to be present, or at least attended with legal counsel.
Report of the Hearing Committee Mohamed A lie Jalloh 163889-Il024 Page 3 of 10
Council's legal counsel, David McKnight ("McKnight"), argued there was no evidence to support the Licensee was coerced, threatened or induced to give a statement that was not voluntary. McKnight noted Council's first interview with the Licensee occurred nine days following the ICBC interview. While the Licensee may have attended the ICBC interview without specific knowledge of what was to be discussed, the same cannot be said about Council interviews. It is not reasonable to believe the Licensee had no idea of the purpose of the first meeting at Council's office and certainly had to understand to purpose of the second meeting. Yet, the Licensee did not seek to consult or bring legal counsel.
McKnight noted Council is an administrative tribunal, not a court of law, and the rules of evidence differ from that of a court of law. McKnight argued the cases referred by Elworthy all relate to criminal cases. Of specific interest was McKnight's reference from Sopinka's Law ofE vidence in Canada, which clearly differentiates the rules of evidence as it applies to a court of law and administrative tribunals.
In addition, McKnight argued all individuals involved in obtaining statements from the Licensee were attending the hearing to give evidence and would be open to cross-examination. To consider the weight or appropriateness of the Licensee's statements to ICBC and Council before hearing this evidence would not be appropriate in the circumstances.
After considering both parties' arguments, the Hearing Committee did not accept the Licensee's arguments. In regard to Elworthy's position that the Licensee's Charter rights were ignored, the Hearing Committee did not find his arguments compelling.
Council is an administrative body, established by provincial statute, responsible for the regulation of insurance agents, adjusters and salespersons. Council does not engage in criminal or quasi-criminal proceedings, and therefore the Licensee's Charter argument does not apply.
In reaching its decision, the Hearing Committee took direction from Wigglesworth and Scott vs. Ontario Racing Commission. It found the references made to the Charter breaches were not applicable in the circumstance, as this Hearing is neither a criminal nor a quasi-criminal proceeding.
The Hearing Committee concluded the Licensee's statements were voluntary. Even if the Licensee attended the first meeting at ICBC without specific knowledge of its purpose, the Hearing Committee noted the Licensee went on to attend more meetings at Council, without legal counsel qr even having consulted a lawyer. There was no evidence the Licensee was detained, either physically or psychologically. The Hearing Committee heard no evidence to suggest the Licensee was not free to leave any of the interviews at any time.
Report of the Hearing Committee Mohamed Alie Jallob 163889-11024 Page4 oflO
The Hearing Committee concluded, as an administrative tribunal, hearsay evidence is generally admissible and the arguments by McKnight were more compelling than those ofElworthy. The Hearing Committee acknowledged it would keep Elworthy's arguments in mind. As evidence was introduced, it will consider its admissibility and where necessary, determine the appropriate weight.
Evidence Evidence reviewed by the Hearing Committee in consideration of this matter: Exhibit 1: Book of Documents of Council Exhibit 2: Book of Documents of the Licensee McKnight's Evidence The case against the Licensee involves allegations that, on three different occasions, he attempted to access a third party's confidential information on ICBC's database for purposes other than to conduct an insurance or vehicle transaction. The third party was an individual who had previously been in a relationship with the Licensee. At the time the accesses of information occurred, he was the subject of a voluntary undertaking not to have any contact with the third party, either directly or indirectly.
ICBC identified three occasions where someone had accessed the third party's information for reasons that did not relate to an insurance or vehicle transaction. On the three occasions when accesses occurred, ICBC was able to identify the location from which the accesses occurred. In all three cases, access was from a terminal in an agency office which employed the Licensee.
The Hearing Committee heard evidence from the Licensee's respective manager or employer confirming at the times these accesses occurred, the Licensee was working at the same location. It was noted employees do not have their own specific passwords to access ICBC's database and it was possible for somebody to access ICBC's database using the Licensee's name or initials.
Evidence was heard from an ICBC employee whose duties involve working with ICBC's database, which include being able to identify accesses to ICBC's database by insurance licensees. The ICBC employee demonstrated, through recreations of the screens accessed, the third party's information was accessed from the agency office locations where the Licensee was employed. This information included specific dates and times.
The ICBC employee also addressed the other accesses to the third party's information during the same period. These other accesses were explained as (non-licensee) programs relating to ICBC operations and requests by other parties (i.e., police). The Hearing Committee heard testimony by the ICBC investigator and Council investigators, regarding their interviews with the Licensee in May 2011.
Report of the Hearing Committee Mohamed Alie JaJloh 163889-11024 Page 5 oflO
The ICBC investigator testified that during her interview with the Licensee, he freely acknowledged accessing the third party's information on June 28,2010. The Licensee's explanation was he wanted to return keys for an apartment he shared with the third party as the lease was expiring at the end of the month. The Licensee explained he was trying to determine whether the third party had moved. During the ICBC investigator's interview with the Licensee, the Licensee did not indicate he accessed ICBC's database at the request of the third party.
The Licensee's statement to the ICBC investigator was in contradiction to what he subsequently told Council investigators. During his interview with Council investigators, the Licensee acknowledged attending his apartment on June 13, 2010, where he and the third party had lived, accompanied by an RCMP officer. At this time, the Licensee learned the third party had moved out and left her apartment keys. Consequently, the Licensee knew the third party had moved out 15 days prior to his access of the third party's information.
Regarding accessing ICBC's database on August 4, 2010 and September 21, 2010, the Licensee initially stated to the ICBC investigator that he had accessed ICBC's database on August 4, 2010; however, changed his response indicating he might have accessed it. The Licensee did not acknowledge he accessed ICBC's database on September 21,2010 during his interview with the ICBC investigator.
In the interviews with Council investigators, the Licensee again acknowledged he accessed ICBC's database on June 28, 2010, although he explained it was done at the request of the third party. The Licensee explained he was forwarded a telephone call from the third party when he was working at the agency as she was his client. The Licensee advised the third party asked him a question about her car insurance and he accessed ICBC's database to provide an answer. The Licensee indicated the third party also requested a change of address.
In his meeting with Council investigators, the Licensee also acknowledged accessing ICBC's database on August 4, 2010 and September 21, 2010; however, he stated it was at the request of the third party. The Licensee stated on August 4, 2010, the third party contacted him regarding whether or not she had the Road Star or the Road Star Plus packages as she was planning a trip and was going to rent a car. On September 21, 2010, the Licensee stated the third party initially contacted him in an attempt to extort money. When she was unsuccessful, she asked to have her third party vehicle liability coverage changed from $1,000,000.00 to $2,000,000.00.
The ICBC investigator and Council investigators all stated the Licensee was never prevented from leaving their respective interviews. All parties testified the Licensee was offered water and was permitted to use the washroom at any time during the interviews. In all three cases, the Licensee attended the interviews voluntarily. The Hearing Committee heard from the third party, whose information was accessed on ICBC's database. She described a relationship that had become abusive, and ultimately involved contacting the police. As a consequence, in June 2010, the Licensee provided a
Report of the Hearing Committee Mohamed Alie Jalloh 163 889-11024 Page 6 of 10
voluntary undertaking not to have any further contact with the third party, either directly or indirect! y.
The third party testified she did not attempt to contact the Licensee at any time following the involvement of the police. After contacting the police, the third party took steps to relocate and move forward with her life. The third party also obtained a vehicle she had gifted to a family member. In doing so, she went to an insurance agency other than the agency where the Licensee was employed.
Elworthy's Evidence Elworthy's evidence consisted primarily of alternate theories to what was presented through testimony.
In the evidence provided by the Licensee's former manager, it was suggested she wanted the Licensee to give her a car for her daughter when the Licensee still worked for the former manager. The former manager admitted to looking for a car for her daughter and had asked for the Licensee's assistance in helping her fmd a car. The former manager categorically denied ever asking the Licensee to give her a car. Elworthy provided no evidence to support his position.
With regard to the evidence provided by the ICBC investigator and Council investigators concerning their respective interviews, Elworthy presented no evidence to explain or refute the Licensee's statements to the investigators. Instead, it was proposed the Licensee did not provide his statements voluntarily, was denied legal advice, was interviewed in a "locked room" and denied the freedom to leave when and if he wanted. This position was pursued although the Licensee attended three different meetings voluntarily and, on at least two occasions, knew the purpose of the meetings prior to his attendance. Additionally, evidence was presented demonstrating the rooms where the interviews took place did not lock.
Regarding the evidence provided by the third party, Elworthy pursued a line of questioning to suggest she had set out to frame the Licensee by telephoning the Licensee at his place of work and getting him to access her personal information in order to subsequently file a complaint about him. This was position was not supported by any evidence. A review of the third party's telephone records indicated no evidence ofher contacting the Licensee or his place of work.
Report of the Hearing Committee Mohamed Alie Jalloh 163889-11024 Page 7 oflO
Elworthy called only one witness; a car salesman who conducts regular business with the Licensee. This included a vehicle transaction of the Licensee purchasing a vehicle for the third party' s use. The purpose of this testimony appeared to be to bring into question the integrity of the third party by suggesting she was out for anything she could get.
Elworthy' s principal argument was the third party was the instigator in this matter and she was trying to get even or frame the Licensee. Elworthy also implied the third party had attempted similar actions previously with another boyfriend. Unfortunately, Elworthy provided no evidence to support this premise and elected not to have the Licensee give evidence directly at the Hearing.
Findings of the Hearing Committee The Hearing Committee found the evidence and testimony to be overwhelmingly against the Licensee. The Hearing Committee found the Licensee did or attempted to access the personal information of a third party for reasons other than to complete an insurance transaction on three seperate occasions. These attempts, while serious in themselves, were even more serious as the Licensee was subject to a voluntary undertaking not to have any direct or indirect contact with the third party.
The Licensee's defence consisted primarily of an argument that there was a conspiracy to frame him. The Hearing Committee was expected to accept not only that the third party contacted the Licensee on three occasions to have him access her personal information in order for her to subsequently deny and use as a basis for a complaint against the Licensee, but also accept the third party had done something similar to a previous boyfriend. In making these implications, no evidence was presented to the Hearing Committee to support these arguments.
This Licensee' s position was countered by the evidence presented by the ICBC investigator and Council investigators, based on their respective interviews with the Licensee. During these interviews, the Hearing Committee heard the Licensee acknowledged accessing the third party's personal information on one or more occasions, although he provided different explanations for doing so.
The Licensee argued the content of these interviews should not be considered by the Hearing Committee, stating they were conducted under duress. The Hearing Committee found the Licensee attended the interviews with ICBC and Council willingly. The Hearing Committee also found the Licensee was treated fairly and reasonably during each interview, and the evidence contained in his statements to ICBC and Council to be telling and relevant.
Report of the Hearing Committee Mohamed Alie Jalloh 163889-11024 Page 8 of 10
The Hearing Committee noted there were three interviews in total, one with ICBC and two with Council. After his initial meeting with ICBC, there is no doubt the Licensee was aware of the purpose of the subsequent meetings. Yet, the Licensee attended the subsequent meetings freely, without conditions or legal counsel.
The Hearing Committee heard no direct evidence from the Licensee to explain his statements to ICBC and Council. In fact, the position put forward by the Licensee was that he was deceived by the third party into accessing her data, in a plot by the third party to get even with him. Unfortunately, the Licensee elected not to testify at the hearing, resulting in the Hearing Committee being left with two different scenarios: one scenario supported by the testimony of a number of witnesses, and another implied by the Licensee.
The Hearing Committee also heard directly from the third party, fmding her testimony both consistent and credible. The Hearing Committee found the third party to be forthright on the events relating to her relationship with the Licensee and subsequent breakup. The Hearing Committee accepted the third party's evidence that she did not have contact with the Licensee following their breakup and she never contacted him or the agency office in which he was working regarding ICBC transactions.
The Hearing Committee wished it could have heard directly from the Licensee, particularly in light of the compelling evidence presented against him. Based on the above, the Hearing Committee found the Licensee had accessed the third party's personal information on ICBC's database, without the third party's consent and for reasons other than to conduct an insurance transaction. While such access was inappropriate, it was even more egregious because the Licensee was the subject of a voluntary restraining order.
The Hearing Committee found the Licensee did, for reasons known only to him, access the third party's personal information on multiple occasions. The Licensee did not appear to be prepared to accept responsibility for his actions and instead attempted to question the motive and integrity of everyone involved in the investigation.
The Hearing Committee found the actions of the Licensee brought into question his suitability to hold a licence. Specifically, the Hearing Committee found the Licensee had not acted in a trustworthy manner, in accordance with the usual practice of the business of insurance, or in good faith, contrary to Council Rule 3(2).
In determining an appropriate penalty, the Hearing Committee reflected on the principle of trustworthiness, which is a fundamental element of each of the professional requirements defmed in Council's Code of Conduct. Licensees must adhere to a strict standard of personal integrity, reliability and honesty. The use of confidential information for a purpose other than intended qualifies as misconduct contrary to the principle of trustworthiness. In particular, it is a cornerstone of the insurance industry that when members of the public provide private information to licensees and insurers, they do so with confidence that it will be protected.
Report of the Hearing Committee Mohamed Alie Jalloh 163889-11024 Page 9 of10
Ultimately, Council treats breaches of privacy very seriously and it has adopted disciplinary measures of commensurate gravity when it fmds that a licensee has violated the privacy rights of a member of the public.
In considering the appropriate parameters for discipline, Council reviewed the following cases involving analogous breaches of the Act. In Henneberry, the agent improperly accessed ICBC's database to obtain personal and confidential information regarding the registered owner of a vehicle and conveyed this information to a third party who used it to threaten the vehicle owner during a road rage incident. Council noted the licensee had been fully aware that disclosure of the information to a third party was contrary to ICBC guidelines as well as the agency's own procedures, yet chose to disregard these rules. In this case, providing the information to the third party could have led to serious ramifications for the driver of the vehicle. Council noted the potential risk to the public in accessing the personal information was manifested when a member of the public was victimized. The licensee did not admit to his misconduct until he was certain he would be found out. Once he admitted to the misconduct, the licensee was not forthcoming with additional information throughout the investigative process. Pursuant to an order from Council, the licensee was deemed not suitable to hold a licence for a minimum of two years and assessed the costs of the investigation.
In Cheema, the licensee had accessed ICBC's database to obtain information on a vehicle, with the intention of sharing the information with an acquaintance known to be involved in criminal activity. Ultimately, the licensee did not disclose the information. He noticed the vehicle was registered to ICBC and advised his friend that he could not access the information he had requested. Council nonetheless found that, on a balance of probabilities, had the vehicle in question not been registered to ICBC, the licensee would have carried out the plate inquiry as intended and conveyed the information to his friend. Similar to Henneberry, the licensee did not advise anyone of what had occurred until ICBC conducted its investigation. Council imposed an order cancelling the agent's licence, with reinstatement not to be considered for a minimum of two years from the date of cancellation.
In Phendler, the licensee accessed the ICBC database to obtain information on a vehicle after exchanging words with the vehicle owner because the vehicle owner had come in contact with the licensee's vehicle. The vehicle contact had not resulted in any damage to either vehicle. Council determined the licensee had acted in haste and without regard for the consequences of her actions. While the licensee was insistent she did not intend to use the information, and had no interest in learning who the woman was, Council found the licensee had instinctively opted to call the agency and abuse her ability to access confidential information in order to intimidate the vehicle owner and assert control over the situation. Council imposed an order cancelling the licensee's licence, with reinstatement not to be considered for a minimum of two years from the date of cancellation.
Report of the Hearing Committee Mohamed Alie Jalloh 163889-11024 Page 10 of 10
In considering these cases, the Hearing Committee noted the cases only involved single breaches of confidentiality and all had eventually acknowledged their wrongdoing. In this
case, the Licensee had accessed the information on multiple occasions and had done so while subject to an undertaking not to have any contact with the third party. In addition, the Licensee refused to acknowledge his actions and gave no evidence of remorse or appreciation for the seriousness of his access.
Based on the above, the Hearing Committee determined the Licensee's actions were more serious than the cases referenced above and warranted a more significant penalty. Consequently, the Hearing Committee recommends Council consider a four year licence cancellation, the Licensee be assessed the investigative costs, and consideration be given to assessing the hearing costs.
In making reference to the hearing costs, the Hearing Committee acknowledged the Licensee was subject to a 238 Order. Under these circumstances, Council has generally been reluctant to assess hearing costs. In this matter, the Hearing Committee found the Licensee provided no evidence which assisted to a better understanding of the events that resulted in the Intended Decision, nor had he acknowledged the seriousness of his actions. Instead, the Licensee chose to suggest or imply other motives were at play, without producing any credible evidence to support his position.
The Hearing Committee felt this failure on the part of the Licensee to make a reasonable case should have bearing as to whether he should be assessed some or all of Council's hearing costs. If Council decides hearing costs should be assessed, additional time should be given to both parties to make submissions on hearing costs.
Dated in Vancouver, British Columbia, on the gth day of May, 2012.
Barbara MacKinnon, CAIB Chair of Hearing Committee