Court Finds ICBC Did Not Meet Their Burden for s. 83 Deductions after Jury Trial

BC’s Insurance Vehicle legislation allows a court to deduct from a claim for future loss those damages that have benefits payable under ICBC’s part 7 scheme.  ICBC’s track record of paying benefits and their position of a plaintiff’s entitlement to those benefits at trial don’t always align.  The legislation was recently amended to direct a court not consider the likelihood that the benefits will be paid or provided when making such deductions.

In one of the first judgements to consider this new language reasons were published today by the BC Supreme Court refusing ICBC’s application for deductions following a jury trial.

In today’s case (Siverston v. Griffin) the Plaintiff was injured in a collision and sued for her damages.  Following trial  a jury assessed damages which included $60,000 for future care.   The Defendant sought to have this award significantly reduced arguing many of the future care items could be paid by ICBC under their part 7 scheme.  Madam Justice Jackson was not persuaded, however, and refused to reduce the award.  In reaching this conclusion the court found the Defendant simply could not meet their burden with the jury’s lump sum award for future losses.  The Court provided the following reasons:

[46]       For deductibility purposes under s. 83(5), entitlement to Part 7 Benefits is not to be determined based simply on a plaintiff “making” or “advancing” a claim. Something more is required. Section 83(5) reduces a defendant’s liability by the amount of the Part 7 Benefits to which a plaintiff is entitled that correlate to the claim as determined and assessed by the court.

[47]       To establish a basis for a deduction under s. 83(5), the defendants have the burden of establishing a correlation between the plaintiff’s claim (as determined by the court) and treatments and services available as Part 7 Benefits. It is the quantum of that entitlement that is relevant for deductibility purposes.

[48]       The defendants rely on Sangha as support for the proposition that an affidavit from an ICBC claims specialist deposing ICBC accepts the court’s findings is sufficient to establish the plaintiff can expect to receive correlating Part 7 Benefits. However, Sangha was not a jury trial. The affidavit of the claims specialist in this case states “ICBC accepts the Court’s implicit finding that the future care treatments and medications set out in the reports are necessary” [emphasis added]. In Sangha, Riley J. particularized the basis of the plaintiff’s cost of future care damage award in the trial reasons. While a judge’s reasons for judgment setting out precise factual findings may not be the exclusive pathway for establishing whether and to what degree a cost of future care award reflects services or treatments that are available as Part 7 Benefits, in this case, the lump sum nature of the jury’s cost of future care award makes it impossible for me to ascertain whether and to what degree there is a correlation.

[49]       The Supreme Court of Canada’s observation at para. 47 of Gurniak that “a second level of matching between a specific head of damage in a tort award and a specific head of damage under the insurance scheme in question” does not obviate the need for the correlation s. 83(5) requires. That first stage of “matching” is still required. In Gurniak, the Court was able to assess whether there was a match between the accident benefits paid under Quebec’s no-fault insurance scheme and those paid under the British Columbia Insurance Act, because both were ascertainable: Gurniak at para. 54. That is not the case here. The basis of the jury’s cost of future care award is unknown.

[50]       Accordingly, I find the defendants have failed to discharge their burden to prove the plaintiff has any entitlement to Part 7 Benefits respecting the loss on which the jury determined her claim is based.