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BC Supreme Court Judge “Unable to Presume That ICBC Will Conduct Itself Honourably Moving Forward”

Pointed reasons for judgment released this week by the BC Supreme Court showed just how poorly ICBC fulfilled their obligations to an individual they insured despite making promises to the court that they will be fair.  Madam Justice Murray noted she is “unable to presume that ICBC will conduct itself honourably moving forward“.

Here is the context. In the recent case (Taylor v. Peters) the Plaintiff suffered serious injuries in a 2017 crash.  She was not at fault.  Back then BC crash victims still enjoyed the right to sue for proper compensation.  At trial the plaintiff was awarded $407,000 in total damages.  ICBC, the insurer for the at fault driver, could deduct from the award any money the Plaintiff could receive from them directly as a Part 7 benefit.  ICBC asked the court to reduce the award by over $141,000 arguing they “will irrevocably, unequivocally, and unconditionally agree to pay the plaintiff, for the items awarded by the court in the Cost of Future Care section in the Reasons for Judgment“.  They filed an affidavit with the court making this promise.

Despite this promise ICBC time and again failed to pay the Plaintiff benefits the court found were needed as future care costs.  ICBC’s own lawyer admitted to the court “that ICBC has failed to handle Ms. Taylor’s claim appropriately but submits that starting now they will do so“.  The court had no time for this promise.  Instead the court found that ICBC’s past actions were the best predictions of their future behavior and refused to give the Defendant/ICBC the substantial deduction from the award.  In doing so Madam Justice Murray provided the following pointed comments:

[24]         It is concerning that Ms. Taylor is unable to continue with therapy. Based on the evidence from medical experts at trial I found that the therapies are required to ameliorate the debilitating injuries suffered when Ms. Taylor was hit by the defendant’s car and assist her to cope with the pain.

[25]         In addition to the therapies, in my reasons for judgment I found that Ms. Taylor needed assistance with housekeeping…

[26]         To date, Ms. Taylor has not received any reimbursement from ICBC for housekeeping. She has cancelled her housekeeping service due to the problems she has had dealing with ICBC and the cost of having to hire her lawyer to try to obtain her reimbursement.

[27]         Section 83 was not intended to permit ICBC representatives to ignore or revise decisions of the court by refusing to fulfil court ordered awards or to frustrate them. Nor was the Part 7 regime intended to make engaging in much needed therapy financially impossible for insureds because ICBC is not reimbursing them in a timely fashion.

[28]         ICBC relies on a comment of the Court in Norris v. Burgess, 2016 BCSC 1452 that “ICBC is an agent of the government. The Court will not presume that the future conduct of ICBC will be other than honourable.” Norris involved a much different set of circumstances than before me.

[29]         Based on the consistent conduct of ICBC toward Ms. Taylor since her accident, I am unable to presume that ICBC will conduct itself honourably moving forward. I am strengthened in this conclusion by the fact that Mr. Haaf only provided his undertaking on January 3, 2024, in an affidavit prepared for this application. If ICBC was truly prepared to accept the court’s ruling and pay to Ms. Taylor the benefits to which she was entitled, why did it not do so immediately after the Court of Appeal’s decision instead of waiting almost three months? And why did ICBC provide payment to Ms. Taylor on the day of the court application when the claim was submitted 18 months prior? This behaviour is consistent with how ICBC has handled this claim. It waits until a lawyer or the court is involved before it fulfills its obligations.

[30]         Ms. Taylor is not seeking double recovery. She merely wants what she was awarded by the Court so she can engage in therapy and move forward with her life. To that end she is willing to forego the Part 7 benefits that remain available to her.

[31]         For the reasons above, I am unable to conclude that ICBC will pay Ms. Taylor her benefits. ICBC has failed to meet its burden.

[32]         Due to ICBC’s egregious conduct, I order that only the amount that has been paid to Ms. Taylor in Part 7 benefits to date be deducted from the award.