Court Criticizes ICBC “Failure” To Pay For Necessary Treatments Highlighting Shortcomings of their so called “Care Based” Model

ICBC and the Provincial government have been working overtime trying to persuade British Columbians that stripping collision victims of the right to go to court to be fairly paid for their injuries is a good idea.  They claim that by taking away these rights ICBC will treat victims fairly under a so-called ‘care based’ model.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC can be anything but fair when it comes to meeting their obligations to pay for long term injury treatments.

In today’s case (Del Bianco v. Yang) the Plaintiff sustained life long injuries in a collision.  At trial he was awarded damages which included payment for future care for massage therapy and kinesiology.  Despite being ordered to pay this money ICBC refused saying they will pay that portion of the judgement from the Plaintiff’s ‘no fault’ insurance with them over the years as the treatments are incurred.  An ICBC adjuster swore an affidavit declaring payments would be made.

The Court did not accept that ICBC would make payments, however, noting that they refused to pay the mandated no-fault benefits in the years prior to trial leaving little confidence that they would fairly meet their future obligations.  In refusing to deduct the vast majority of the awarded future care costs Mr. Justice Groves provided the following criticism of ICBC’s handling of the claim and their unexplained “failure” to pay past benefits they were obliged to:

[13]         It is concerning to the court that the representative of ICBC, Andrew Rudkowski, has not, in his affidavit, explained the failure of ICBC prior to trial to pay the massage therapy costs of the plaintiff. Liability for these motor vehicle accidents was never seriously in dispute. The injuries that required massage therapy, therapy that was necessary for Mr. Del Bianco to work, and effectively minimalize the extent of his tort claim, were lower back, shoulder and soft tissue injuries.

[14]         Equally concerning is the apparent exaggeration, even today, less than one year into a potentially 40-year commitment, as to the extent of ICBC’s commitment to pay what was ordered after trial. In paragraph 6, Andrew Rudkowski deposes that “ICBC will reimburse Mr. Del Bianco for the necessary health care services he has incurred since March 22, 2019 and he incurs in the future”. That is, as noted by defence counsel, not true. They will only reimburse under their payment schedule of $80, when the court determined on the evidence the cost of such treatment at $85.

[15]         Counsel for the plaintiff ably argued about the difficult financial circumstances that his injury and the actions of ICBC placed on the plaintiff from the time of the accident until, essentially, the time of this application. For whatever reason, unexplained, ICBC refused to pay for his massage therapy treatments. The suggestion from counsel for the plaintiff was that ICBC took the position that because he had a hernia operation after the accident, not related to the injuries suffered in the accident, that the hernia problem was the source of his discomfort. That, to a great degree, defies logic, as the hernia was, for lack of a better term, in the plaintiff’s groin or abdomen, whereas the soft tissue injuries requiring massage were in his back.

[16]         The court is faced with the representations of a claims specialist from ICBC that they will, in the future, pay these costs. The evidence about the lack of financial viability of ICBC, as attested to by the Cabinet Minister responsible for ICBC, the Attorney General, is not significantly disputed. Nor is it disputed that ICBC is not prepared to pay for massage therapy at a rate that the court has ordered.

[17]         Additionally, and though this was not raised by counsel, but is a concern to the court, it is hard to know and predict, dare I say impossible to know and predict, at what rate ICBC will, in the future, be paying for massage therapy costs. This is not just a short-term future. This is 40 years. If, as now, this would require the plaintiff to pay the difference himself, to pay over and above what ICBC is prepared to pay, when the tort award was intended to fully compensate him. He may perhaps then seek reimbursement from ICBC. This creates a 40-year responsibility on this plaintiff to keep track of receipts, to make requests and deal with adjusters at ICBC. That is completely inconsistent with the general purpose of litigation and tort awards, to create some finality between the parties.

[18]         In light of the history of non-payment by ICBC for no apparent reason, as experienced by the plaintiff, it is unrealistic, in my view, to require him for a period of 40 years, to have to continue to deal with an adjuster at ICBC in order to obtain what the court has already ordered he is entitled to.

[19]         Additionally, as noted by the plaintiff, there is just too much uncertainty as to the ability of ICBC to make the payments at a rate ordered by the court. They are, today, not prepared to pay at the rate the court ordered. There is too much uncertainty related to their past history of being disinterested or disrespectful of the plaintiff’s claims. There is too much uncertainty as to what the future holds for ICBC, as evidenced by the affidavit of the plaintiff, for the court to have absolute confidence that if money is deducted from the tort award for Part 7 scheduled benefits, that they will actually be paid.

[20]         I note the case of Li v. Newson, 2012 BCSC 675, a decision of Mr. Justice Abrioux, as he then was. He notes in para. 14, inter alia, that “uncertainty as to whether a Part 7 benefit will be paid must be resolved in favour of the plaintiff”. I find on the facts before me considerable uncertainty that payments consistent with the tort award would be paid to Mr. Del Bianco for massage therapy for the 40 years as awarded.

[21]         As such, I am not prepared to deduct amounts for massage therapy under s. 83 from the plaintiff’s tort award. These comments relate to the massage therapy treatments to age 65 and the massage therapy treatments from age 65 to age 75. There is, as noted above, in the circumstances of a 40-year payment period, too much uncertainty and, frankly, too much of a requirement placed on this plaintiff to potentially request reimbursement weekly for funds not paid directly by ICBC, but payable out of his pocket. That is simply too much to expect.