Substitution Orders in ICBC Hit and Run Claims are "Mandatory in Their Nature"
Last year I questioned the correctness of reasons for judgement which refused to make a¬†substitutional¬†order in an ICBC Claim¬†involving¬†an unidentified motorist. ¬†Reasons for judgement were released this week by the BC Supreme Court, ¬†Chilliwack¬†Registry¬† further addressing this area of the law finding that¬†substitution¬†orders are mandatory once the identity of an unidentified motorist becomes ascertained.
In this week’s case (McStravick v. Metzler) the Mr. Metzler and Ms. McStravick were occupants of a motorcycle¬†involved¬†in a serious collision. ¬†An allegation was made that an unidentified motorist caused the collision. ¬†ICBC was named as a nominal¬†defendant¬†under section 24 of the Insurance (Vehicle) Act.
Evidence¬†disclosed¬†on the eve of trial and trough witnesses during trial gave rise to identifying the unknown motorist. ¬†The Plaintiff brought an application to substitute this person for ICBC in the lawsuit. ¬†The¬†motorist¬†and ICBC¬†vigorously¬†oppose the application. ¬†Mr. Justice Blok ordered the substitution and in doing so provided reasons highlighting the¬†mandatory¬†nature of Section 24(6) of the¬†Insurance¬†Vehicle Act. ¬†The Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I would observe at the outset that s.¬†24(6) of the¬†Insurance (Vehicle) Act¬†is mandatory in nature.¬† If the identity of the driver is ascertained then that person¬†must¬†be added as a defendant in substitution for ICBC.¬† The factors applicable to cases where parties are being added under the¬†Supreme Court Civil Rules¬†therefore have no application:¬†Tse v. ICBC¬†(1996), 24 B.C.L.R. (3d) 394 (S.C.).
¬†¬†¬†¬†¬†¬†¬†¬†¬†While counsel for Ms.¬†Sidwell concedes that the Court probably does not have jurisdiction to refuse to substitute an ascertained defendant in place of ICBC, he said that conditions may be specified, as expressly provided by s.¬†24(6).¬† However, counsel did not suggest any conditions that might be appropriate, short of refusing the application altogether.¬† Given the mandatory language of the section, a refusal cannot be a condition.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The mandatory language of the section also limits, and probably eliminates, any scope for the application of the equitable principle of estoppel insofar as applying the estoppel principle would operate to defeat the intent and effect of the section.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Even if there might still be some room for estoppel to operate, I am not satisfied that estoppel has been made out on the facts of this case.¬† Ms.¬†Sidwell submits that as a result of the ‚Äúshared assumption‚ÄĚ of all counsel that she was not the unknown driver, she ceased being represented by counsel and did not take part in the trial.¬† What that submission fails to address is the fact that (1) the substitution application can be made at any time prior to judgment being granted, and (2) her interests were represented throughout by ICBC as nominal defendant.¬† As to the former, since s.¬†24(6) allows for a substitution application to be made at any time prior to judgment, a trial might well be completed before an application is made and with no hint of it beforehand.¬† Here, Ms.¬†Sidwell had two years or more of advance notice and she had representation by counsel during that time.¬† In addition to her own counsel, counsel for ICBC represented the interests of the unknown driver, whoever that might have been, and thus in some respects at least she had two lawyers representing her interests until shortly before trial.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Ms.¬†Sidwell complains that she was deprived of taking part in the trial, but until she was made a party she would have had no standing to take part.¬† She points to no prejudice associated with the fact that her interests, at least her interests in a general sense, were represented by counsel for ICBC instead of her own counsel.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Further, I do not consider that an estoppel against¬†ever¬†bringing a substitution application arises in this case.¬† Counsel for the plaintiff Metzler submits that while the last-minute disclosure of the Sidwell and Popovich witness statements revived the possibility that the plaintiffs would bring a substitution application¬†–¬†a possibility that counsel expressly stated at the outset of the trial¬†–¬†it was not until those witnesses had given evidence and their evidence tested in cross-examination that they considered the plaintiffs had a sufficient basis on which to bring the application.¬† In these circumstances I consider this approach to have been reasonable and prudent.¬† However, ICBC and Ms.¬†Sidwell argue that the plaintiff Metzler is bound by his counsel‚Äôs letter so as to foreclose any possibility of a successful substitution application.¬† This would mean that even if Ms.¬†Sidwell had expressly admitted at trial that her driving was the cause of the accident the defendants could not have substituted her as defendant in ICBC‚Äôs stead.¬† That cannot be correct.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Finally, there is an additional difficulty in applying an estoppel here in any event because the primary facts asserted as giving rise to an estoppel apply only to the plaintiff Metzler and not to the plaintiff McStravick.¬† The most that can be said in regards to Ms.¬†McStravick is that her counsel attended a trial management conference at which the judge was told that the application was not being brought.¬† Only in Mr.¬†Metzler‚Äôs case was a letter written, in arguably more definitive terms.¬† This leaves the unsatisfactory possibility that Ms.¬†Sidwell might be substituted as a defendant in one case but not the other.¬† Fortunately I do not have to address this difficulty because I conclude that even on the strongest facts that are alleged an estoppel of the type and scope asserted does not arise.