Court Critical of ICBC for Failing to Advise Unrepresented Party of Limitation Period

When advancing a tort claim with ICBC it is important to remember that they have no duty to advise you of your limitation period.  If the clock runs out before filing your lawsuit there is typically little a court can do other than offer words of criticism at ICBC for engaging in this practice.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In last week’s case (Tolentino v. Gill) the Plaintiff was injured in a 2004 collision. He dealt with ICBC directly with the Court making the following findings about their interactions:
22]        …I find that on July 13, 2005, Mr. Tolentino told Ms. Brunac-White that he had not talked to anyone about his claim (including a lawyer) and Ms. Brunac-White advised Mr. Tolentino that it was not necessary to have a lawyer at that time. Ms. Brunac-White intended to discuss the matter with Mr. Tolentino after she obtained updated medical information. Mr. Tolentino was to contact her when he returned from a trip but he did not do so before the limitation period expired on January 10, 2006. Ms. Brunac-White did not attempt to contact Mr. Tolentino either, and she closed the file on February 2, 2006, after conducting a search for a writ of summons.
The Plaintiff ultimately started a lawsuit and ICBC applied to have it dismissed as being filed beyond the limitation period.  The court sided with ICBC and dismissed the lawsuit but prior to doing so Madam Justice Fisher provided the following criticism:
[23]        It is indeed unfortunate that Ms. Brunac-White made no effort to contact Mr. Tolentino before the limitation period expired. It would have been a simple task that could have served the interests of both parties. However, as the plaintiff concedes, ICBC as the insurer has no duty to advise him about the limitation period. Silence or inaction may be considered a representation only where the representor owes a legal duty to the representee to disclose something or take certain steps: Ryan v Moore, 2005 SCC 38…
[29]        I wish to add, however, that I was disturbed by the adjuster’s approach in this case. She sought to rely on an “agreement” with the plaintiff about the next steps but when he did not contact her after several months, she ought to have considered that there could have been a misunderstanding. While she may not have been successful in making contact with the plaintiff given his history, her failure to make any attempt to contact him before the limitation period expired was in my view unreasonable. She had a telephone number and could have left him a message. Although she did not have a legal duty to do so, given her knowledge of the claim, this would have been a more reasonable and fair approach.
[30]        The plaintiff’s action is dismissed…
 

Estoppel, Limitation Periods, Madam Justice Fisher, Tolentino v. Gill

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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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