ICBC, Tort Claims and Admitting the Issue of Fault
Reasons for judgement were released today dismissing a claim where a Plaintiff sued ICBC alleging that ICBC infringed on her right to ‘freedom of thought, belief, opinion and expression” as guaranteed by the Canadian Charter of Rights and Freedoms.
This is a somewhat unusual judgement. The Plaintiff was involved in a car accident in 2003. She was apparently ticketed for her driving and ‘she felt alright with accepting total fault for the accident, because her car was in the pathway (of the other vehicle) when his car collided with hers.’
The other driver made a tort claim against the Plaintiff thereby triggering her policy of insurance with ICBC. ICBC appointed a lawyer and defended the claim. Ultimately the claim settled and the Plaintiff was indemnified for the damages she had to pay to settle the other motorists tort claim.
In the lawsuit ICBC denied that their insured was at fault. ICBC often does this even if the Defendant is likely at fault for an accident. The Plaintiff appeared displeased with this decision. Some friction arose between the Plaintiff and her insurer ICBC. This friction surrounded meetings between the Plaintiff and her ICBC appointed lawyer in preparing her for her evidence at an examination for discovery. The Plaintiff was apparently concerned that her lawyer was ‘trying to influence her version of how the motor vehicle accident occurred‘.’ Ultimately ICBC sent the Plaintiff a letter informing her that ‘there is some indication that (the Plaintiff) did not meet a condition of your insurance contract‘. The condition referenced in the letter was apparently the condition of an insured to co-operate with ICBC as required by s. 73 of the Insurance Vehicle Regulation.
This letter triggered the above lawsuit whereby the Plaintiff alleged ICBC infringed her Charter rigths. ICBC applied to dismiss the claim arguing that the lawsuit contained no bona fide triable issue. Mr. Justice Halfyard agreed with ICBC and dismissed the claim. In doing so he found that “I think it is arguable that the statement of claim could be amended so as to allege a cause of action for conspiracy to suborn perjury…In my opinion, no useful purpose would be served in allowing the Plaintiff to amend the statement of claim. It is my opinion that most of the possible causes of action fail to disclose any reasonable claim, and those that might be amended so as to allege causes of action for intimidation and conspiracy to suborn perjury are bound to fail‘.
This case, while a little off the beaten path, goes to show that ICBC (in the course of defending one of their insured in a tort claim) has the right to decide whether the issue of fault for an accident will be admitted. As Mr. Justice Halfyard notes,
It was counsel’s duty to assess Ms. Joe’s statement of how the accident occurred, and to then advise I.C.B.C. as to whether or not liability should be admitted. Under the regulations, I.C.B.C. had the exclusive authority to decide whether liability would be admitted, in whole or in part, on behalf of Ms. Joe. Many cases occur in which I.C.B.C admits 100% liability on behalf of insured drivers who deny they were at fault for the accident. In the present case, there was nothing improper in defence counsel and I.C.B.C. taking the initial position that Mr. Knight was partly at fault for the accident. Mr. Knight had apparently admitted he was not wearing a seat belt. That position was also justified by Ms. Joe’s description of her actions, even accepting the statement she claims to have consistently given. But counsel would understandably want to pin down the version of events that she would be giving on discovery, in the circumstances of this case. That could never amount to an attempt to make Ms. Joe deny that she was at fault. It was for counsel to predict what degree of fault should be attributed to her, based on her own statement and the other circumstances surrounding the accident.
If you feel you are at fault for an accident the best thing you can do is let ICBC know this in no uncertain terms. If any indication is given that ‘an insured’ is not at fault for an accident ICBC will likely put the issue of fault into play in any subsequent tort claim.