Clarity on ICBC Claims Challenging Increased Premiums vs Other Damages Following Collision

Last week the BC Court of Appeal provided reasons for judgement clarifying in what circumstances a Plaintiff can have separate proceedings to address the issue of increased premiums following a collision versus a tort claim for other damages.  In short the Court held that a separate claim against ICBC for breach of contract or breach of statutory duty (to revisit their division of liability for insurance premium purposes) will not be a barrier to a separate tort claim for damages against the at fault motorist.  However, if a claim is filed against the tortfeasor for damages for increased premiums then a subsequent lawsuit for other damages would be estopped.
In last week’s case (Singh v. Mchatten) the Plaintiff sued another motorist for damages as a result of a motor vehicle collision.  The Plaintiff succeeded and was awarded damages for his deductible to be returned with a finding the Defendant was liable for the collision.  The Plaintiff then commenced a Supreme Court action for damages for personal injuries sustained in this crash.  The second action was dismissed by the Court of Appeal who found the action was estopped by virtue of the prior litigation.  In doing so the Court of Appeal provided the following reasons:

[19] The other flaw in the judge’s reasoning lies in her equating the respondent’s motivation in bringing the first action with a cause of action.  The causes of action in the two proceedings are undeniably the same:  damages for negligence.  In order to achieve the respondent’s goal of reversing ICBC’s fault determination and to recover the deductible, it was necessary for the respondent to sue the driver and owner/lessor and prove all the elements of negligence:  duty of care, standard of care, causation and loss.  He would have to repeat the same process in the Supreme Court action in order to recover personal injury damages.

[20] The respondent could have sued ICBC in Small Claims Court without attracting an estoppel defence in the later proceeding.  Those were the circumstances of Innes v. Bui, 2010 BCCA 322.

[21] In that case, Ms. Bui was unhappy with ICBC’s assignment of fault to her in a two-vehicle accident.  She sued ICBC in Small Claims to reverse the determination but decided to substitute Ms. Innes as the defendant.  The judge dismissed the action on the ground that he could not decide whose version of the accident to accept and since Ms. Bui bore the onus of proof on the balance of probabilities, she lost.  Then Ms. Innes sued Ms. Bui for damages in the Supreme Court and met a plea of res judicata which was upheld.  For this Court, Low J.A. reversed the decision and held that no liability determination was made in the first instance and so the doctrine did not apply.  He went on to observe:

[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.

[35]      In any event, if all the criteria for res judicata were met, I would think that this is a special circumstances case in which the doctrine should not be applied.

[22] In the present case, the judge purported to follow Innes v. Bui.  She concluded her reasons in this way:

[32]      The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell [(1993), 77 B.C.L.R. (2d) 211 (C.A.)].  Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.

[33]      I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met.  If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff.  The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident.  It may be that the issue of liability is res judicata, but the application was not argued on that basis.  Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court.  In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court.  However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered.  To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.

[23] With respect, Innes v. Bui, is not similar to the case at bar but is its mirror opposite.  The Small Claims action in this case is not framed in terms of contract or breach of statutory duty against ICBC but in negligence against alleged tortfeasors…

[29] For these reasons, I would allow the appeal, set aside the order below, and dismiss the action.

You can click here to read my comments on the BC Court of Appeal’s previous decision of Innes v. Bui.

action estoppel, bc injury law, Estoppel, liability, Res Judicata, Singh v. McHatten

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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