“Uncertainty” About Payment of ICBC Benefits Undermines Defendant’s s. 83 Application
I have previously discussed Part 7 benefits deductions¬†following BC motor vehicle collision injury trials. ¬†In short, a Plaintiff‚Äôs damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Reasons for judgement were recently released by the BC Supreme Court,¬†Vancouver¬†Registry, addressing this deduction finding that if there was uncertainty as to whether Part 7 payments will be made there should be no deduction of damages.
In the recent case (Tsang v. Borg) the Plaintiff had damages for future care of $5,000 assessed at trial. ¬†The Defendant asked the Court to largely discount this award pursuant to s. 83 of the Insurance (Vehicle) Act on the basis that many of the Plaintiff’s future treatments will covered by ICBC under the no fault benefits plan. ¬†Mr. Justice McKinnon noted this argument was “inconsistent” with the Defendant’s trial position and in any event the evidence required for the deduction fell short of the mark. ¬†In dismissing the application the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†At trial the defendants claimed that the plaintiff‚Äôs injuries for the most part were not caused by the accident. In¬†Paskall v. Schelthauer,¬†2012 BCSC 1859, the court held that the regulations limit the benefits to injuries that the corporation views flow from the accident. It strikes me as inconsistent for the defendants to now argue that the plaintiff is entitled to benefits payable under part 7 and more to the point, raises the distinct possibility that in future, the corporation will deny claimed benefits as ‚Äúnot flowing from the accident‚ÄĚ.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In her affidavit, Shelley Ruggles, the insurance adjuster assigned to administer the plaintiff‚Äôs entitlement, indicates some uncertainty about whether future treatments are recoverable. She writes, ‚ÄúFurther requests for treatment¬†could¬†be covered under s. 88 of the Regulations‚ÄĚ. This suggests some uncertainty.
¬†¬†¬†¬†¬†¬†¬†¬†¬†It is only where there is no uncertainty as to whether the insurer will accept the treatment and pay the cost that deductions can be made, see¬†Ayles (Guardian ad litem of) v. Talastasin,¬†2000 BCCA 87. At bar there is no such certainty and I therefore resolve the issue in favor of the plaintiff.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The award of $5,000 stands.
Tags: bc injury law, Mr. Justice McKinnon, Section 83 Insurance (Vehicle) Act, Section 83(5) Insurance (vehicle) Act, section 88 insurance (Vehicle) Regulation, Section 88(2) Insurance (Vehicle) Regulation, Tsang v. Borg