Employer Paid Wage Replacement Benefits Non-Deductible in Hit and Run Claims

Section 106 of the Insurance (Vehicle) Regulation permits ICBC to reduce compensation by any amount paid by another “insured claim” in claims for injuries caused by unidentified motorists or uninsured motorists under section 24 and section 20 of the Insurance (Vehicle) Act .  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing whether wage loss benefits paid by an employer are an ‘insured claim‘.  In short the Court held that they are not.
In last week’s case (Loeppky v. ICBC) the Plaintiff, a police officer, was injured in a hit and run collision.  ICBC accepted the crash was caused through the fault of an unidentified motorist.  The Plaintiff sought compensation for his damages including past wage loss.  During his time away from work his employer paid him wage replacement benefits.  ICBC argued these payments were an ‘insured claim‘ and therefore had to be deducted from his ICBC claim.  Madam Justice Grey disagreed and refused to make the deduction.  The Court provided the following reasons:

[83] In my view, Mr. Loeppky’s wage replacement benefits do not constitute an “insured claim” under s. 106 of the Regulation, and therefore may not be deducted from Mr. Loeppky’s award.

[84] In Arklie v. Haskell (1986), 33 D.L.R. (4th) 458, 25 C.C.L.I. 277 (B.C.C.A.), McLachlin J.A., writing for the court at para. 26, held that a sum of money advanced by an employer to an employee that had to be repaid in the event of any recovery did not qualify as a benefit under the predecessor of s. 106.

[85] More generally, in Lopez v. Insurance Corporation of British Columbia (1993), 26 B.C.A.C. 142, 78 B.C.L.R. (2d) 157, Hollinrake J.A., writing for the court at para. 21, held that an “insured claim” for the purposes of the Regulations must still import at least some element of insurance. He went on conclude that payments made by reason of a contract of employment, without some evidence that they originate from an insurer, do not possess such an element of insurance.

[86] The sum of $6,804.77 was paid to Mr. Loeppky under the collective agreement between the Vancouver Police Union and the Vancouver Police Board. Under the terms of that agreement Mr. Loeppky must repay that amount if he recovers it in this action. There is no evidence that the payments originated from an insurer. Thus, it is not an insured claim under s. 106 and the defendant is not entitled to deduct it from any award.

bc injury law, Loeppky v. ICBC, Madam Justice Gray, section 106 insurance vehicle regulation, Section 106(1) Insurance (Vehicle) Regulation, Section 106(2) Insurance (Vehicle) Regulation, Section 20 Insurance Vehicle Act, section 24 Insurance (Vehicle) Act

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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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