November 20th, 2012
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether a party should be substituted in on-going litigation where the Defendant was incorrectly named due to representations of ICBC. In short the Court held substitution should be permitted in such circumstances.
In this week’s case (Bedoret v. Badham) the Plaintiff was involved in a 2009 motor vehicle incident. After retaining counsel ICBC wrote to the Plaintiff’s lawyer indicating that the other motorist involved in the incident was a Mr. Badham. The Plaintiff initiated a lawsuit against this individual. After the limitation period expired ICBC responded to the lawsuit denying that Mr. Badham was involved in the incident. The Plaintiff then sought to name ICBC as a ‘nominal defendant’ pursuant to section 24 of the Insurance (Vehicle) Act. ICBC opposed the application. Master Young criticized ICBC’s position calling it ‘astonishing‘ and finding that an order adding ICBC to the litigation was appropriate and further went on to award increased costs. In doing so the Court provided the following reasons:
 ICBC takes the astonishing position in this application that plaintiff’s counsel should not have relied on the March 1, 2010 letter setting out the third party particulars. If that letter cannot be relied on by the plaintiff’s counsel, then I wonder what the purpose of sending the letter is. The plaintiff’s counsel submits, and I accept, that it is standard practice in the personal injury bar to send an introductory letter asking ICBC for particulars and for copies of statements. It is common practice to wait for the reply letter before issuing a notice of civil claim. No letter was ever sent to the plaintiff’s counsel advising him that the contents of the March 1, 2010 letter were incorrect. It was not until the response to civil claim was filed after the expiry of the limitation period that ICBC informed the plaintiff that the named third party was not the driver of the vehicle that caused the accident.
 Now ICBC opposes the application to be added as a nominal defendant. It submits that the plaintiff knew or ought to have known that ICBC was handling this file as an unidentified motorist case despite the fact that the official letter from ICBC to his lawyer said exactly the opposite…
 …ICBC asserted to counsel for the plaintiff in the official first letter that Jaswinder Badhan was the driver of the vehicle. This was long after any discussions with the unrepresented plaintiff and in response to the standard letter sent at the commencement of all motor vehicle accident cases. Plaintiff’s counsel was entitled to rely on the information contained in the letter. If ICBC later learned that it was in error, it had a responsibility to correct that error so as not to mislead the plaintiff. Failing to do so until after the expiry of the limitation period and then opposing the amendment to the claim is unreasonable…
 I find that it is just and convenient to add ICBC as a nominal defendant. I do not find the delay in applying to court to be inordinate. I will not order that the action against Mr. Badhan be discontinued. I will order that the misnomer be corrected.
 As a result of the unreasonable position taken by ICBC in this case, I find that Scale B costs do not adequately compensate the plaintiff, and I order that the proposed defendant, ICBC, pay costs to the plaintiff in any event of the cause at Scale C.