February 11th, 2016
Adding to this site’s database of ICBC Unidentified Motorist prosecutions, reasons for judgement were published today by the BC Supreme Court, Kamloops Registry, finding that the Summary Judgement rule cannot be used to determine if a plaintiff made all reasonable efforts to identify the at fault driver which is a prerequisite to a successful unidentified motorist prosecution.
In today’s case (Lapointe v. ICBC) the Plaintiff used the summary judgement rule to strip ICBC’s defence alleging the Plaintiff failed to make all reasonable efforts to identify the at fault motorist. ICBC appealed and Mr. Justice Myers overturned the earlier ruling noting the Court can only address this issue when determining liability and cannot address this defense in a piecemeal fashion. In reaching this decision the Court provided the following reasons:
 The issue in this appeal is purely a legal one. The standard of review is therefore correctness: Ralph’s Auto Supply (B.C.) Ltd. v. Ken Ransford Holding Ltd., 2011 BCSC 999, at para. 7.
 I do not agree with the plaintiff’s argument which artificially separates the cause of action against the unknown driver or owner from the claim against ICBC. Although it is common practice to name John Does as substitutes for the driver and owner, the section does not require that; an action may be brought against ICBC only. It is obvious that there is no John Doe to serve and no default judgment can be taken against the unknown driver or owner. ICBC is fully in control of the defence until the time of judgment or the driver or owner is found. I do not think there is a separate claim against under ICBC under s. 24 as the plaintiff maintains.
 Therefore, a decision on s. 24(5) alone is not determinative of a claim and cannot result in a judgment; it is only a decision on an issue. On the basis of Century Services, it is therefore not amenable to a Rule 9-6 application.
 That is sufficient to allow the appeal but there is a further related point (not argued by ICBC) which reinforces this conclusion. The obligation to attempt to locate the driver or owner is a continuing one in this sense: if facts come to light that make the identity ascertainable, the plaintiff is no doubt obligated to follow up on that information. And, if the identities become known, section 24(6) provides that the driver or owner must to be substituted for ICBC in spite of any limitation period. The wording of section 24(5) is that “a judgment against the corporation must not be given unless the court is satisfied that…”. This contemplates a single judgment.
 I therefore do not think that a separate decision on section 24(5) can be made in advance of a decision on liability as a whole. Put another way, the time at which the court must be satisfied as to the factors in s. 24(5) is the time of the determination of liability for the accident. The opposite interpretation would allow for a scenario where s. 24(5) is determined in favour of a plaintiff, and the driver becomes known before the trial on liability. It would then make the substitution for ICBC impossible as the matter would be res judicata.
 I therefore allow the appeal.