ICBC Law

I recently highlighted on-going friction between the BC Government and our Judiciary.  In the latest chapter of this story, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, striking down Court “hearing fees” and providing strong criticism to the Government with respect to their constitutional duty to properly maintain Superior Courts.

Included in Mr. Justice McEwan’s robust reasons for judgement (Vilardell v. Dunham) was the following constitutional lesson to Government:

(1)  Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU), including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference).

(2)  The mandate of the Province under s. 92(14) is to maintain, that is, to provide adequately for, the courts.  It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy.  This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government.  As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures.

(3)  Hearing fees are a barrier to access imposed by one branch of government over another.  For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy.  The court cannot fulfil its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents.  In this respect, the AGBC’s position that so long as the government does not interfere with he cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place.  So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort”.  Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek a authoritative determination of a right or legal position according to law.  Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law.

(4)  The AGBC’s anxious concern for trial efficiency is misplaced.  Courts of inherent jurisdiciton are equipped with all the tools they need to manage trials and to deter time wasting, and they use them.  It is an incursion upon judicial independence for the government to purport to influence the courts by manipulating fees…

[426]…The office of the Attorney General also fulfils an essential role in the protection of the public interest, which includes concern for the rights of disadvantaged and the vulnerable.

[427] The Attorney General has a further role to play in explaining the function of the courts to government.  The preservation of the core values of our Constitution including inclusiveness, equality and citizen participation are entrusted to the Attorney General as much as they are to the Courts…It is therefore a matter of serious concern that the Attorney General has come to this Court with a submission that appears so dismissive of these fundamental aspects of our system of government…

[429]  …The position taken by the AGBC in this case has shown not merely an error in its approach to an aspect of financing the courts, but a significant misunderstanding by the government of its responsibilities under, and the limitations on, its constitutional mandate under s. 92(14) of the Constitution Act, 1867.

[431]  The Court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees.  Some things cannot be for sale.

Typically it is an abuse of process for an individual to plead guilty to criminal charges and to then deny liability in a subsequent civil lawsuit arising from the same incident.  The BC Supreme Court Rules allow judges to strike pleadings denying previous admissions as an ‘abuse of process‘.  Reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, demonstrating such a result.

In this week’s case (Plishka-Humphries (Guardian ad litem of) v. Bolen) the Plaintiff was assaulted and battered by the Defendant Bolen.  The Defendant plead guilty to aggravated assault as a result of the incident.  In a subsequent civil lawsuit the Defendant denied liability.  The Plaintiff brought an application for summary judgement which was granted.  In finding the Defendant civilly liable for the incident Mr. Justice McEwan provided the following reasons:

[11] The present case differs from Franco in that the defendant is not asserting a defence that parallels the position he took before the criminal court. In such circumstances a defendant’s position at least has the virtue of consistency. Here, the defendant seeks to give an exculpatory version of facts he has previously admitted…

[13] Here, however, at the sentencing proceeding, the defendant admitted the facts that the plaintiff alleges in the civil case. He now wishes to contradict those admissions. This is not a case of a careless plea, or a plea to a vague and uncertain set of facts.  Nor is it a case where there was a lack of incentive to dispute a minor charge. It is also not a case of new evidence. There was no hint or suggestion of a threat from the plaintiff, at the sentencing proceeding, let alone facts that could be characterized as a form of self-defence. There was, rather, a submission that he was taking responsibility and acknowledging the harm he had done. In the context of that hearing it appears that this was offered as a kind of mitigation.

[14] The transcript also contradicts the defendant’s suggestion that he pled guilty on his lawyer’s advice and not because he considered himself guilty. He stood in court while his lawyer represented variously that he was “deeply remorseful”, “wants to plead guilty”, “wants to announce his guilt” … “recognizes this,” that “[h]is reaction was wrong” or that he wanted to save the young man from going to trial, and “have some lawyer probing on–about ball bearings.”

[15] The material the defendant has presented does not raise a genuine issue to be tried. The Certificate of Conviction tendered in this case is roughly equivalent to proof of a formal admission. There is nothing arising from the circumstances in which the guilty plea was entered that casts doubt upon the defendant’s intention at the time, or his appreciation of what he was doing. There is no ambiguity in the facts that he admitted. The explanation he offers for sitting through the hearing on September 21^st, 2005 while the case was, from his present perspective, grossly mischaracterized, is thoroughly unconvincing…

[17] There will therefore be judgment for the plaintiff on the issue of liability and a referral to the trial list on the issue of quantum.

For more on this topic you can click here to review a recent case where a careless driving guilty plea was a barrier to a civil denial of liability following a motor vehicle collision.

While Pedestrians are allowed to cross streets in a crosswalk the right is not absolute.  One limitation in section 179 of the BC Motor Vehicle Act addresses pedestrians walking in front of a moving vehicle “that is so close it is impracticable for the driver to yield the right of way“.  In these circumstances a Pedestrian could be faulted for a resulting collision even if they would otherwise have the right of way.  Reasons for judgement were released yesterday by the BC Supreme Court, Nelson Registry, considering this obligation in a personal injury lawsuit.

In yesterday’s case (Cairney v. Miller) the Plaintiff was injured in a 2009 collision.  The Plaintiff was crossing in a marked cross-walk in Nelson, BC, when he was struck by the Defendant.  As the Defendant was driving she “slowed down to look for a parking spot when she suddenly felt a bump on the left side of her car.”  The Defendant failed to see the Plaintiff and the Court ultimately found the Defendant at fault.

The Defendant went on to argue that the Plaintiff should be held partially at fault because he should have realized she was not yielding the right of way.  Mr. Justice McEwan rejected this argument and provided the following reasons:

[25] Given Mr. Thompson’s evidence, which I accept, the plaintiff was visible in the crosswalk when the defendant’s vehicle crested the hill and entered the intersection. I cannot accept that poor lighting or dark clothing had anything to do with what happened and must infer that the defendant was not paying sufficient attention in the circumstances. The plaintiff did nothing sudden or unusual to cause the collision. He was simply established in the crosswalk while the defendant’s car was approaching.

[26] Mr. Thompson’s evidence differs from that of both the plaintiff and the defendant with respect to speed. Witnesses often differ on the characterization of such matters, and both the plaintiff and the defendant agree that she was proceeding slowly, a factor in the plaintiff’s calculation that he believed the defendant was going to stop.

[27] This is difficult to reconcile with Mr. Thompson’s immediate reaction that there was going to be a collision between the plaintiff and the defendant’s vehicle. The effect of Mr. Thompson’s evidence is that, to him, the defendant’s vehicle appeared to be an immediate and obvious hazard to the plaintiff, because it was going too fast.

[28] I have carefully considered whether the plaintiff’s failure to apprehend that the defendant was not going to yield to him, engaged an obligation to avoid injury to himself that modified his right to the right of way (See Feng v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), cited in Dionne at para. 23 above).

[29] The evidence, taken as a whole, however, suggests that the plaintiff assumed that the defendant would stop in circumstances when it was reasonable to expect she would see him. It is often possible to say in retrospect that had a party paid more attention, he or she might have avoided the collision. In the circumstances here, I think this would impose a standard of more than usual diligence and watchfulness on the plaintiff at odds with his right to be in the crosswalk and the presumption that the plaintiff would abide by the rules of the road.

[30] Accordingly, I find the defendant fully liable for the collision.

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to transfer a Plaintiff’s lawsuit to Small Claims Court.

In this recent case (Kooner v. Singh) the Plaintiff was injured in a 2009 collision.  He sued for damages in the BC Supreme Court.  Following examinations for discovery the Defendant applied to transfer the claim to Small Claims Court.  Mr. Justice McEwan dismissed the application.  He reiterated some concerns he voiced earlier this year and provided the following reasons generally discouraging these types of applications:

[3] I have commented on other occasions about these applications.  They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the material before me, it is not possible to say that the case could not exceed $25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.

[4] I am not prepared, on the basis of the material, to summarily find that there is no possibility of the trial establishing damages in excess of $25,000, nor am I in a position to assess whether or not the liability aspect of the claim would foreclose the possibility of such damages.  It seems to me that the defence must be seeking the limitation of $25,000 because there is very little else that would suggest a motivation for such claims.  It is not, as it may once have been, obvious that the Provincial Court is equipped to hear these matters more expeditiously or more cheaply, particularly given the point at which this application is brought, post-discoveries, after most of the expenses that go into a Supreme Court trial have been incurred.  My understanding of the current state of hearing day fees, as such, is that there are none for the first three days of trial.  So that is not a factor.  There was a suggestion before me that the informality of the Provincial Court is an advantage, but unless that informality is tied to reduced time in court, which is not at all clear, I fail to see how that, in itself, results in any particular economy.

[5] I think it should be clear that parties have a right to elect the court in which they bring their actions and that, in doing so, if they persist, they run certain risks.  Those risks, in the case of a plaintiff’s action brought in Supreme Court that should have been brought in Small Claims Court, include the penalty of not receiving costs in the case of success, and also include the hazard, if an offer to settle is made, of double costs in accordance with the Rules setting out those penalties.  It appears from the vantage of the bench that it is much more in the defence interest that the matter remain in Supreme Court than that this application succeed, unless, as I have said, what is really sought is a summary assessment of the case on the basis of very limited information, to bring the matter in under $25,000.  Given the hazards (which the plaintiff is aware of), I am of the view that the plaintiff is entitled to bring the matter in this Court if that is what the plaintiff wishes to do.

[6] I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011.  I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount.  I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties.  Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard.  I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery.  There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

[7] Accordingly, I dismiss this application.

Section 6(4) of the BC Limitation Act states in part that a limitation period “does not begin to run against a plaintiff…..until the identity of the defendant…is known to the plaintiff“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this provision in the context of an ICBC Claim.

In this week’s case (Telus Corporation v. Araneda) equipment owned by Telus was struck by a motor vehicle causing $43,000 in damage.  They sued the party they alleged was responsible but did so nine days after the limitation period expired.

Telus argued that the running of the period should be postponed by several days under s. 6(4) of the Limitation Act because it took 18 days for them to receive the police report identifying the defendant.  Mr. Justice McEwan rejected this argument and dismissed the lawsuit.  In doing so the Court provided the following reasons:

[20] …. On the day of the accident, Telus, through its employee Dale Summers, knew it had a claim for property damage and knew the name of the tortfeasor was immediately ascertainable from a reliable source, the RCMP.

[21] In saying so, I reject Telus’ argument that a large enterprise should be judged on its “ individual circumstances” and that its step-wise approach to the management of its legal claims is akin to the situation in Strata Plan LMS 2940 v. Quick as a Wink Courier, 2010 BCCA 74. There the Court of Appeal upheld a judge of this Court who had found that an action brought by a strata corporation against an individual one day outside the limitation period was not statute-barred because the strata corporation was obliged to pass a resolution before it could initiate the action, and doing so took some time.

[22] Telus was not impeded by a statutory prerequisite, and there is no reason in principle why a large organization should be judged by a more accommodating standard than would apply to any competent individual. As in Meeker, Telus knew on the first day of the accident that it had suffered actionable harm and that the name of the person involved was ascertainable.

[23] It is regrettable that the limitation period went by in this case. As some of the case law demonstrates Courts frequently go some distance to ensure that cases are tried on their merits. The policy inherent in limitation periods, however, must also be respected. Applying the relevant legal principles to the present case, Telus has not established that it is entitled to postponement, and the action must be dismissed.

As previously discussed, Section 15 of the Supreme Court Act allows the Court to transfer a lawsuit to the Provincial Court (Small Claims) in certain circumstances.  Reasons for judgement were released today making it clear that such applications will rarely succeed in personal injury lawsuits.

In today’s case (Chang v. Wren) the Plaintiff was involved in a collision and sued for damages in Supreme Court.  ICBC brought an application to move the case to Small Claims Court.  Mr. Justice McEwan expressed “difficulty appreciating the motivation for the application” and dismissed it.  In doing so the Court noted the well-known delay in getting trial dates for personal injury lawsuits in Provincial Court and further the difficulty in predicting that any given case would be worth less than $25,000 in a summary hearing.  The following useful reasons were provided:

[3] I must say I find it unusual that a defendant brings such an application and had some difficulty appreciating the motivation for the application, given that the sanction in costs and in depriving the plaintiff of costs following a Supreme Court hearing would appear, in my view, to be more advantageous than the inevitable result of putting the matter down to Provincial Court, which would be a trial some eight months from when the trial is presently set in August of 2011 in Provincial Court, and a further proceeding by way of mandatory mediation in the Provincial Court.

[4] Whatever the merits of the respective parties’ positions as to the ultimate quantum of damages in this matter, it seems to me that the appropriate disposition is to see that it gets to trial before a competent tribunal as quickly as possible, and with as little procedural clutter as possible.  That militates strongly in favour of the Supreme Court retaining this matter within its precincts, where there is a far greater likelihood, in the present circumstances, of a trial being held when it is scheduled, than there is in the Provincial Court.

[5] Circumstances might be different if it could be reliably assumed that Provincial Court would get the matter on quickly and be done with it faster than a Supreme Court, but while I am not prepared to go so far as to say I take judicial notice of anything in particular, I certainly will observe that I do not think I can behave on the basis of that particular fiction.

[6] What this application amounts to is a request to the court to summarily assess the evidence without hearing from any witnesses or without hearing from the plaintiff herself and determine that the matter would come in under $25,000.  That would depend on the court reading the medical reports, essentially as the defence suggests I should, and I do not think it is something that a responsible court could really do.

[7] The plaintiff has chosen the Supreme Court of British Columbia.  She will have been advised of the hazards of bringing a Small Claim jurisdiction matter in this court, but if she is determined to proceed and to have a determination in Supreme Court, I think it would have to be established very, very firmly that the damages she claims could not exceed $25,000, before the court would entertain such an application.

[8] Counsel have provided some case law reflecting what the test is for bringing the matter down to Provincial Court.  My own view is that in a case where the liquidated damages could not possibly exceed $25,000, it might be clear, but in a case of this kind where the nuances of personal experience may have a significant bearing on the court’s assessment, perhaps even notwithstanding the medical evidence, it would be most unsafe to summarily decide that the case could not exceed the limits of the Small Claims jurisdiction.

[9] So on the basis that, first of all, it appears to be more efficient to continue in Supreme Court, and secondly, on the basis that it is, in any event, the plaintiff’s right to choose the forum, where there is any doubt about the appropriate jurisdiction, I think it better at this stage of this proceeding, post-discovery and a few months to trial, for the matter to remain in Supreme Court.

[10] I dismiss the application.

As previously discussed, where motorists have different versions of events following a collision the evidence of independent witnesses can be crucial in addressing the issue of fault.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In this week’s case (Chang v. Alcuaz) the Plaintiff was involved in a two vehicle collision in 2008.  As she was travelling Eastbound on 33rd Avenue her vehicle was struck as she crossed Main Street.  The Defendant was travelling Southbound on Main Street at the time the vehicles collided.

The impact was severe with the plaintiff testifying that as she approached the intersection ”she recalled that the colour of the traffic light was green” and that “she has no other recollection of the accident.  Her next memory is of waking up two days later in the hospital.”

The Defendant disputed this version and gave evidence that he had the green light.  Mr. Justice McEwan ultimately preferred the Defendant’s evidence and dismissed the Plaintiff’s claim.  In reaching this conclusion the Court placed significant weight on the evidence of two independent witnesses who saw the collision.  Mr. Justice McEwan provided the following reasons for judgement:

[28] The evidence in this case is contradictory and unreliable in many of its details.  It is often difficult, in cases of this kind, to put much reliance on estimates of time and distance given by witnesses in connection with a surprising and traumatic event…

[29] Liability comes down to two questions:

(1)  who had the benefit of the light, and

(2)  was the operator of the vehicle with the benefit of the light, nonetheless responsible to some degree, in the circumstances.

[30] Respecting the first question, there is reason to doubt the plaintiff’s assertion that she had the benefit of a green light as she now asserts.  She was unconscious following the accident and her original statement is at odds with what she presently says.  It would be difficult to accept her version of the event without corroboration.

[31] The assistance offered by the witness, Ms. Currimbhoy, is highly debatable.  She, alone, among the witnesses, suggests that the event happened in daylight.  On a common sense basis, as I have indicated, she could not be right about her proximity to the plaintiff at the time of the collision.  There is also the difficulty that none of the other witnesses saw any other vehicle proximate to the collision.  There is a further difficulty posed by Mr. Humphrey’s flatly stated observation that he saw the woman who identified herself as a co-worker pull up after the collision.  It is not conclusively established that that was the same person, but it is telling that neither Mr. Jantzen, nor Mr. Humphrey, who observed the entire incident, noted any other vehicle near the scene.

[32] The defendant, Mr. Jantzen and Mr. Humphrey all say firmly that the defendant had the benefit of the green light when he entered the intersection.  Mr. Jantzen’s impression that the defendant may have been “timing” the light is borne out in the defendant’s description of what occurred, in that he says he slowed and then accelerated when he saw the light turn green.

[33] The evidence from the City of Vancouver respecting the timing of the lights that day at that intersection is also useful.  If the light was turning, an eastbound driver had 3.5 seconds of an amber light before the change.  For 1.5 seconds traffic in all directions is governed by a red light.  This means that by the time the light turns to green, eastbound traffic, at any reasonable speed, has had a warning and ample time to stop.

[34] The scenario posted by the plaintiff that the light was green or green turning amber as she hit the intersection would imply a red light north and southbound that continued for five seconds after the defendant entered the intersection.  This would preclude any impression of the defendant “timing” the light because he would have entered fully on red.  That is not in accordance with the observation of Mr. Jantzen or of his passenger, Mr. Humphrey.  Both were credible and balanced witnesses who were not caught up in the event themselves except to witness it.  Mr. Jantzen, in particular, was paying specific attention to the light because he had been waiting for it to change.  His view was unobstructed.

[35] I am satisfied, on the basis of a consideration of all the evidence, that at the time the collision occurred the defendant had the benefit of the green light and that the plaintiff should not have been in the intersection when the collision occurred.

This case is also worth reviewing for the Court’s discussion of fault for motorists who “time a green light“.  The Plaintiff argued that if she did run a red light the Defendant was partially to blame because he timed his green light.  Mr. Justice McEwan dismissed this argument but in doing so provided a useful overview of the law at paragraphs 36-46 of the reasons for judgement.

Earlier this year Mr. Justice McEwan provided reasons for judgement finding that an order to sever issues under Rule 12-5(67) is a prerequisite to having only part of a case tried by way of summary trial.   Today, reasons for judgement were released confirming this point and finding that where credibility is an issue a case will likely not be suitable for severance or summary trial.

In today’s case (Erwin v. Helmer) the Plaintiff alleged injuries in a trip and fall incident.  She sued for damages under the Occupiers Liability Act.  The Defendants applied to dismiss the case via summary trial.  Mr. Justice McEwan dismissed the application finding that a a summary trial was not appropriate.  In doing so the Court provided the following reasons regarding credibility, severance and summary trials:

[9] This case inherently turns on credibility. While counsel for the plaintiff has not objected to severance, the court must still be concerned with the proper application of summary process and with the sufficiency of the evidence on which it is expected to rule that a party will be deprived of a full hearing.

[10] It appears from what is before the court that the precise nature of the “hole” into which the plaintiff alleges she stepped will not be established with any precision. There nevertheless appears to be a question to be tried on the balance between the risk assumed by the plaintiff and the duty imposed on the defendants to ensure that the premises were reasonably safe. There is simply not enough material presently before the court to reliably make that call. The defendant relies on the fact that the plaintiff had been drinking as if that essentially speaks for itself, but the presence of drinking invitees on the defendant’s premises was, on the material, foreseeable. There is little, if any evidence as to what efforts, if any, were made to render the premises reasonably safe for those who attended the wedding in those circumstances, including, for example, whether paths were designated or lighting was supplied.

[11] The application is accordingly dismissed and, the whole matter will be put on the trial list. The question of severance, if it arises again, should be the subject of an application. Where credibility is a significant issue it should generally be decided on the whole case, not on the fraction of it, unless the test for severance has specifically been met. Otherwise the trier of fact may be deprived of useful information relevant to the over-all assessment of credibility.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with an interesting question: is a Court order for severance of issues required prior to a Court adjudicating an issue (as opposed to the entirety of a claim) in a summary trial?

The reason why this is an issue is due to two competing Rules of Court.  Rule 9-7(2) permits a party to “apply to the court for judgement…either on an issue or generally“.  On the face of it this rule seems to permit a party to apply for only part of a case to be dealt with summarily.  However, Rule 12-5(67) requires a Court Order to sever issues in a lawsuit stating that “the court may order that one or more questions of fact or law arising in an action be tried and determined before the others“:.

In this week’s case (Chun v. Smit) the Plaintiff was injured in a motor vehicle collision.  He brought a motion for the issue of liability to be addressed on a summary trial.  The Defendant opposed arguing that a summary trial was not appropriate.  Mr. Justice McEwan agreed and dismissed the application.  In doing so the Court provided the following useful reasons finding that an order to sever issues under Rule 12-5(67) is a prerequisite to having only part of a case tried by way of summary trial:

[7] The question is really whether Rule 9-7 merely describes a mode of trial, while the claim or cause of action remains otherwise subject to the rules that govern trial, or whether the trial of an “issue” under Rule 9-7, where that issue is the severance of liability from quantum, somehow bypasses Rule 12-5 (67) and falls to be decided on a lower standard.

[8] In the brief passage excerpted from Bramwell (above), three different approaches are apparent. It seems to me, however, that whether the test for severance, or of a trial of an “issue” is rationalized as within or outside Rule 9-7, it must meet the standard set out in Bramwell. Rule 9-7 is, in itself, a departure from the ordinary mode of hearing a trial, and proceedings within it are contingent upon the court accepting that the compromises inherent in that process will not impair the courts’ ability to do justice. That being so, it would be illogical that collateral to the compromises inherent in proceeding by summary trial, other aspect of the process were similarly downgraded. If a trial of an issue is found to be an appropriate way to proceed, it may be tried under Rule 9-7, if Rule 9-7 itself is properly applicable.  Where a party seeks to proceed on only part of a case under Rule 9-7, the first question is whether there should be severance at all, and the second is whether Rule 9-7 is appropriate. The correct approach is set out in Bramwell, which would bind me in any case (see Hansard Spruce Mills Ltd. (Re), [1954] 4 D.L.R. 590 (B.C.S.C.)).

When ICBC Tort and Part7 Claims are settled ICBC usually requires a ‘full and final release‘ to be signed as part of the deal.  There is a common misconception that individuals can simply refuse to sign the release if they get cold feet after negotiating a settlement.

There is, in fact, no legal requirement that an ICBC settlement be reduced to writing and a verbal discussion can create a bidning contract where a claimant gives up their right to sue.  This was discussed in reasons for judgement released today by the BC Supreme Court, Vancouver Regirstry,

In today’s case (Varesi v. Cadelina) the Plaintiff was injured in a 2008 motor vehicle collision.  The Plaintiff and Defendant were both insured with ICBC.   The Plaintiff dealt with ICBC directly and after some initial negotiations the Plaintiff advised as follows “I feel that my original request of $10,000 is still fair. Although my research on the CanLII website leads me to believe I may be entitled to a higher settlement, at this time I am still willing to settle the claim for this amount. I have consulted with a lawyer in regards to filing a writ but again would like to be able to reach a fair conclusion outside of the court system.”

ICBC apparently responded that they accepted this offer and required the Plaintiff to submit receipts documenting her out of pocket expenses.  The Plaintiff had a different recollection stating that ICBC agreed to pay for her out of pocket expenses on top of the $10,000.  ICBC refused to do so arguing that they had a binding settlement.

The Plaintiff brought a lawsuit and in it’s early stages ICBC brought an application to have the lawsuit dismissed based on the alleged settlement.  Ultimately Mr. Justice McEwan dismissed ICBC’s application finding that the issue came down to credibility and it would need to be pursued at trial.  Mr. Justice McEwan provided the following reasons:

[25]         Where an oral contract is asserted and denied the case will generally come down to a contest of credibility. An example in the contest of an automobile insurance claim is Barclay v. Insurance Corp. of British Columbia, 2002 BCPC 15.

[26]         This is not a case of duress or unconscionability or undue influence. Depending on the evidence there may be an element of mistake. As the motion for summary judgment has been defended, the issue is whether there was a “meeting of the minds.”  The material is not at all decisive on that point, specifically as to the inclusion of the Part 7 benefits in the settlement. Mr. Boswell and the plaintiff differ on what was discussed, and such, if it remains an issue in the action when it is tried will have to be resolved on an assessment of credibility. Such an issue cannot be safely undertaken on the affidavit and documentary material before the court.

[27]         The defendants’ application for summary judgment on the alleged settlement contact is, therefore, dismissed, with leave to bring the issue on at trial, on a better evidentiary foundation, if the defendants consider it in their interests to do so.

While this case did not result in a dismissal based on the settlement discussions it demonstrates that a claimant can enter into a binding settlement even without signing a full and final release.  Settlements are based on ‘offers and acceptance’ and it is vital that a claim be valued properly prior to selling your right to sue.  You can access my archived posts discussing other legal issues involved in ICBC Settlements by clicking here.