Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, setting aside a decision of the BC Civil Resolution Tribunal involving a dispute with ICBC addressing fault for a collision and ordering the matter be remitted for proper determination.  In the process the BC Supreme Court had noted “the tribunal exercised its discretion arbitrarily and on the basis of predominantly irrelevant and/or non-existent facts“.

In today’s case (Devendra v. British Columbia Civil Resolution Tribunal) the Petitioner was involved in a crash prior to April 1, 2019 (the date the CRT obtained jurisdiction to hear most BC collision cases which was then declared unconstitutional last week).  The CRT was accessed based on their jurisdiction not for vehicle collisions specifically but based on their small claims jurisdiction for claims under $5,000.

ICBC found the applicant fully at fault for the crash.  The Applicant sued ICBC and the other motorist involved arguing “ICBC refused to properly investigate the incident” and asked that his deductible and increased premiums be returned.  At the same time the other motorist sued the Applicant in the BC Supreme Court for alleged negligence causing injuries stemming from the same crash.  ICBC “made clear in their written response to the tribunal that liability was not going to be an issue in the BCSC action“.  Despite this the CRT decided they were not the appropriate forum to adjudicate the applicants dispute and the issue of fault was better to be decided in the BC Supreme Court.  In finding the decision was patently unreasonable and failed to understand their role in a dispute of this nature Madam Justice Murray had the following critical findings:

[20]         There are several issues with the tribunal’s analysis:

1)    With respect to paras. 18, 21 and 22 of the reasons, although counsel for ICBC in the application before me submits that liability has not been admitted in the BCSC action, ICBC made clear in their written response to the tribunal that liability was not going to be an issue in the BCSC action. While ICBC was never asked by the tribunal whether the BCSC action would impact its internal determination of Mr. Devendra’s liability, it is clear from their response, as follows, that it would not:

…the Supreme Court file…is an action commence (sic) by the third party/ respondent for compensation/ tort rather than a liability defense (sic) for the applicant and may not address the applicants (sic) dispute of liability to his satisfaction.

[Emphasis added.]

2)     With regard to paras. 17,19 and 20 of the reasons, the tribunal demonstrates a lack of understanding of the civil trial process as it relates to MVA civil actions and ICBC. Although he is named as a defendant in the BCSC action, Mr. Devendra is not a participant as such. Under s. 84 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, ICBC represents the insured. Given ICBC’s finding that Mr. Devendra is 100% liable, it is unlikely that he would even be a witness. He certainly does not have a voice or a claim in the BCSC action.

3)    Regarding para. 22, the tribunal had no information before it upon which to conclude that liability will be determined in the BCSC action. To the contrary, the information before the tribunal was that liability is not an issue in the civil proceeding and even if it was, the determination would not impact ICBC’s internal determination of Mr. Devendra’s liability.

[21]         A similar factual situation occurred in Innes v. Bui, 2010 BCCA 322. In that case, a collision occurred at an intersection where Ms. Bui commenced a left-hand turn as Ms. Innes was proceeding straight through. Both parties were insured by ICBC. ICBC’s adjustors determined internally that Ms. Bui was solely responsible for the collision and raised her vehicle insurance premiums accordingly. Ms. Bui commenced a Small Claims action against ICBC for recovery of the increased premiums, alleging that Ms. Innes’ negligence caused the collision. ICBC defended the Small Claims action. Meanwhile, Ms. Innes commenced a civil action in BCSC against Ms. Bui seeking damages for injuries sustained as a result of the collision.

[22]         The Small Claims judge dismissed Ms. Bui’s claim on the basis that he could not decide which of the parties to believe. In the civil action, an issue arose as to whether the dismissal order in the Small Claims action rendered a determination of Ms. Innes’ liability for contributory negligence res judicata. The Chambers judge held that issue estoppel had been established in regards to liability for the collision and she summarily dismissed Ms. Innes’ civil claim for damages.

[23]         In setting aside the Chambers judge’s decision, our Court of Appeal held as follows:

31        The reasons of the Small Claims judge fell well short of deciding the negligence question. That issue remains alive in the Supreme Court action. The res judicata arguments of both parties fail.

32        The above is enough to allow this appeal. However, I would like to add a few more observations.

33        In the Small Claims action, Ms. Innes was the wrong defendant. She certainly was not a necessary defendant. That action was not based in tort. It was either in contract or under statute, or both, and the only issue raised by the pleadings was whether ICBC acted properly or reasonably in administratively assigning responsibility for the collision to Ms. Bui alone. That was an issue only between Ms. Bui and ICBC. Ms. Innes apparently had no say about being substituted as the defendant in place of ICBC. She had no control over the conduct of the action and she had no right of appeal independent of ICBC. To say that the judgment given in the Small Claims action should have the effect of denying Ms. Innes the opportunity to present her own case stretches the equitable defence of res judicata to limits which, in the interests of justice, the defence should not be taken. In that action, Ms. Innes did not have her day in court in any real sense.

34        On this basis I question whether it is correct to say that the parties, in reality, were the same in the two actions or that any consideration of privy arises.

[Emphasis added.]

[24]         Given the above I find that the tribunal exercised its discretion arbitrarily and on the basis of predominantly irrelevant and/or non-existent facts. Particularly, it acted with a seemingly honest but mistaken understanding of civil procedure and insurance legislation in concluding that Mr. Devendra’s liability, as it relates to his dispute against ICBC, would be determined in the BCSC action. The tribunal had no evidence before it to reach that conclusion. At the very least, the tribunal could have made inquiries into whether the BCSC action would impact ICBC’s internal determination of Mr. Devendra’s liability.

[25]         The tribunal also failed to realize that Mr. Devendra’s claim against ICBC was not based in tort. Rather, as framed by our Court of Appeal in Innes, Mr. Devendra’s claim was based “either in contract or under statute, or both, regarding whether ICBC acted properly and reasonably in administratively assigning responsibility for the collision” to Mr. Devendra alone, which was the only issue between him and ICBC. That issue will not be decided in the BCSC action.

[26]         As such, I am satisfied that the tribunal’s refusal to resolve Mr. Devendra’s claim is patently unreasonable. No judicial deference can justify letting it stand. To hold otherwise would be to leave Mr. Devendra with no recourse to resolve his claim against ICBC, which is squarely within the monetary and subject matter jurisdiction of the CRT.