ICBC Uninsured Motorist Claims and the Deductibility of WCB Benefits

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If a person is injured by the actions of an uninsured motorist in BC they can seek compensation directly from ICBC under section 20 of the Insurance (Vehicle) Act.
There are certain limitations to section 20 claims and one of these was that ICBC could deduct Workers Compensation Benefits.  This changed by the new section 106 of the Insurance (Vehicle) Regulation which came into force on June 1, 2007.  The new regulation changed the definition of an ‘insured claim‘ that ICBC could deduct as follows:

106 (1)  In this section, “insured claim” means any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity or to the personal representative or guardian of the person, and includes a benefit, compensation, right or claim

(a) under the Workers Compensation Act or a similar law or plan of another jurisdiction, unless

(i)  the insured elects not to claim compensation under section 10 (2) of the Workers Compensation Act and the insured is not entitled to compensation under section 10 (5) of that Act, or

(ii)  the Workers Compensation Board pursues its right of subrogation under section 10 (6) of the Workers Compensation Act

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether ICBC could deduct WCB benefits paid when a crash occurred prior to June 1, 2007 but the uninsured claim against ICBC was still on-going after the new Regulation came into force.  In short the Court held that the date of the crash itself does not decide the issue, rather the date that the section 20 claim against ICBC is crystallized does.
In this week’s case (Hicks v. Bieberbach Estate) the Plaintiff was injured in a 2005 collision.  The opposing motorist was operating a stolen vehicle and was killed in the collision.  Motorists in stolen vehicles are deemed to be uninsured motorists by ICBC.  The Plaintiff initially obtained some compensation from WCB.  The Plaintiff then re-elected his route of compensation and brought a tort claim (apparently with WCB’s approval) against the uninsured motorist’s estate.
ICBC took the position that all the funds paid by WCB were non-recoverable as the crash happened prior to June 1, 2007.  Madam Justice Adair disagreed and found that since the CL-42 (the statutory declaration claimiants need to sign to seek section 20 benefits from ICBC) was not signed until after June 1, 2007 the new regulation applied and ICBC could not deduct the WCB payments from their section 20 obligations.  In reaching this decision the Court provided the following reasons:

[44]         A claimant who is injured by an insured driver and who wishes to make an application to ICBC for damages must do so in the prescribed form:  s. 20(2).  The form prescribed is a statutory declaration, where an applicant must verify facts as if under oath or on affirmation.  I do not see anything in s. 20 to suggest that ICBC “may pay” without having fundamental facts relevant to the claimant’s claim verified by solemn declaration,  as prescribed by the legislation.  On the contrary, the clear implication of s. 20(9) is that it is necessary for a claimant to submit a declaration in Form CL-42 before ICBC “may” pay.  The significance of the word “may pay” (rather than “must pay”) is that, even when a claimant has complied with s. 20 and the regulations, ICBC is notobligated to pay:  see Buxton v. Tang, at para. 7.

[45]         In my view, ICBC’s correspondence dated February 7, 2007, indicates that ICBC requires plaintiff’s counsel to comply with the service and default requirements of s. 20 (see in particular ss. 20(5)(b), (6) and (7)), and, more generally, indicates that ICBC expected Roy Hicks to comply with the section and the regulations before any amount would be paid to him.  This is entirely consistent with s. 20(9).  One of the requirements was that Mr. Hicks complete and submit a CL-42.  Unlike s. 24 of the Act, which requires a claimant to give ICBC notice of a claim within 6 months after the accident but does not specify any form in which the notice must be given, s. 20 specifies the form of notice of a claim, but does not fix a deadline…

[52]         In my opinion, in this case and reading s. 20 as a whole, ICBC was not in a position where it at least “may” pay, until Roy Hicks submitted his CL-42 statutory declaration.  That was the final step Mr. Hicks needed to complete (since service of the writ and defence of the claim by ICBC had been addressed in the fall of 2007) as claimant.  Since the CL-42 statutory declaration was submitted in February 2008, s. 106 of the New Regulation applies…

[54]         In summary, the question posed on the special case is:

Does the Insurance Corporation of British Columbia have the legal authority to deduct Workers’ Compensation Board benefits paid to the Plaintiff from any amount to be paid to the Plaintiff for damages, as a result of settlement or judgment in this matter, taking into account Section 20 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 and regulation 106 of the Insurance (Vehicle) Act Regulations, or the predecessor to these sections which were repealed on June 1, 2007?

My answer is no.  Section 106 of the New Regulation applies in respect of the plaintiff’s claim.

bc injury law, CL-42, Hicks v. Bieberbach Estate, Madam Justice Adair, section 106 insurance vehicle regulation, Section 20 Insurance Vehicle Act, Uninsured Motorist Claims, Uninsured Motorists

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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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