“Concerning” Affidavit Makes ICBC Benefits Deduction Application Come Up Short
Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, largely rejecting an ICBC application to have future care benefits from a tort judgment significantly reduced.
In today’s case (Luck v. Shack) the Plaintiff was in a collision and was awarded damages for prolonged injuries including $85,000 for future care costs. The Defendant argued that much of the services covered by this award can be accessed through ICBC no-fault benefits and asked that the award be reduced by $65,000. The Court noted ‘concern‘ about ICBC’s affidavit evidence leaving some uncertainty as to whether discretionary no fault benefits would be paid or denied in the future. In only allowing $3,540 in deductions Madam Justice MacDonald provided the following reasons:
 To answer whether I should deduct the amounts, I must turn to the sworn evidence of the ICBC claims specialist. As stated in Norris at para. 35: “The Court will not presume that the future conduct of ICBC will be other than honourable.” However, Riley J. in Sangha stated that this Court must independently assess the affidavit evidence from the ICBC specialist. Even where an affidavit “irrevocably, unequivocally, and unconditionally” agrees to reimburse the plaintiff for the future benefits, I must analyze this commitment to ensure it is in compliance with the Act and Regulation: Schmitt; Sangha. In Sangha, this Court did not accept the ICBC specialist’s evidence that ICBC would “irrevocably, unequivocally, and unconditionally” pay for certain benefits in the future.
 Ms. Uppal deposed that ICBC accepts this Court’s Judgment regarding Ms. Luck’s treatment needs following the motor vehicle accident. Ms. Uppal deposed that ICBC will “irrevocably, unequivocally, and unconditionally agree to pay, under Part 7” the cost of the future care amounts specified in the Judgment, “up to the amounts allowed pursuant to section 88(1.2) and schedule 3.1 of the Regulation”.
 Despite the above statement, I have concerns with the affidavit evidence because Ms. Uppal does not waive the need for continued medical certification in the Regulation. For example, mandatory and discretionary benefits are limited to the amounts set out in Schedule 3.1 of the Regulation. Ms. Uppal refers to this limitation in paragraph 15 of her affidavit:
- I am authorized on behalf of ICBC to advise that ICBC will irrevocably, unequivocally, and unconditionally agree to pay, under Part 7, for the following itemsup to the amounts allowed pursuant to section 88(1.2) and schedule 3.1 of theRegulation, as incurred and submitted to ICBC by the Plaintiff for reimbursement, up to the amounts indicated in the table below… [Emphasis added.]
 Further, Ms. Uppal did not address the s. 88(1.01) treatments, over and above the number of mandatory pre-authorized treatments, that are provided more than 12 weeks after the date of the accident. Ms. Uppal did not refer to waiving the need for continued medical certification. The affidavits relied upon in Sangha and Wark both waived the need for future medical certification and referred to s. 88(1.01).
 Importantly, Ms. Uppal testified that if there is any uncertainty as to what, if any, Part 7 benefits may be payable to the plaintiff she would look to the Act and Regulation. This statement was not qualified by any reference to her affidavit.
 The plaintiff points out that funding for a pain management clinic is not provided for as a treatment modality under Part 7 and is not provided for in Schedule 3.1. The defendants argue ICBC will fund the clinical counselling aspect of the pain management treatment. Even accepting this argument, the counselling would take place more than 12 weeks after the accident. It is therefore a discretionary benefit and suffers from the same problem articulated above.
 The defendants bear the onus to prove entitlement to ongoing benefits. Any uncertainty must be resolved in favour of the plaintiff. To prove ongoing reimbursement for benefits, the defendants’ evidence must use precise language. Ms. Uppal’s evidence was not sufficiently precise, especially when combined with her testimony. I adopt Riley J.’s comments in Sangha:
[20(a)] …Thus, while Ms. Sit says ICBC will “irrevocably, unequivocally, and unconditionally” agree to pay all of Ms. Sangha’s previously incurred expenses under as Part 7 benefits, I foresee some difficulty in Ms. Sangha obtaining reimbursement. This is not a criticism of Ms. Sit’s integrity as a duly authorized ICBC representative, but rather a recognition that an insured person may encounter resistance in obtaining benefits where there is apparent inconsistency between ICBC’s presently-stated position and the requirements set out in the Regulations. The ambiguity on this particular point must be resolved in Ms. Sangha’s favour. I would not deduct this amount.
 Based on the above reasoning, Ms. Uppal’s affidavit and testimony do not satisfy me that ICBC has waived the requirements in s. 88(1.01) of the Regulation and the need for ongoing medical certification. Uncertainty persists with respect to these discretionary benefits. I am not satisfied Ms. Uppal’s commitment, especially when viewed in light of her qualifications in oral testimony, overcomes the ongoing conditions in the Regulation.
 The deficiencies in the evidence create uncertainties regarding the future payment of benefits. Any uncertainties must be resolved in favour of Ms. Luck. I am therefore unable to deduct the full $65,000 from the Judgment to avoid double recovery.
 I will deduct an amount from the Judgment based on the benefits for which Ms. Luck can, with certainty, be reimbursed.