Limitation Period Dismisses Two ICBC Injury Claims

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing two ICBC injury claims for being brought beyond the applicable limitation period.
In the recent case (DeWolfe v. Jones) the Plaintiff spouses were both injured in a 2005 collision.  They dealt with ICBC directly but never reached settlement.  During a conversation the acting adjuster, in response to the Plaintiffs advising they were not prepared to settle at the time told them that “I am leaving on maternity leave at month end and he knows that he can call to settle if things improve at any point.”
The Plaintiffs failed to start a lawsuit in time and argued that this statement from ICBC should prevent them from raising the limitation defense.  Mr. Justice Gaul disagreed and dismissed the lawsuits.  In reaching this decision the Court provided the following reasons:
[48]         In my opinion, Ms. Johal did not state or infer that liability had been accepted by the defendants to the extent that the only remaining issue was the quantum of damages. The parties had not entered into negotiations, only discussions in which Ms. Johal came to the conclusion that the plaintiffs did not want to consider settlement at that point.
[49]         Finally, even if the plaintiffs were able to establish that liability had been admitted and a promise made, I am of the view that they are unable to demonstrate they relied on such an assurance to waive the limitation period. In her examination for discovery, Mrs. DeWolfe admits that the main reasons why she did not commence her legal action earlier was that she simply did not realize there was a time frame in which she had to do so, and that “life just got busy”.
[50]         Although case authorities such as Esau v. Co-Operators Life Insurance Company Limited, 2006 BCCA 249, have commented on the advisability of insurers informing their clients of limitation periods, for better or worse the law remains unchanged. In my view, ICBC had no obligation or duty to raise the limitation period issue with the plaintiffs. Consequently, the plaintiffs’ assertion that they were unaware of that period is insufficient to ground a claim of promissory estoppel.
[51]         In my opinion, although the parties had discussed the possibility of settling the plaintiffs’ claims, there were no serious negotiations towards that end. At no point did ICBC concede to the plaintiffs that the defendants were responsible for the Accident and in my view there is no persuasive evidentiary foundation to infer that only the quantum of damages remained as an issue to be settled between them.
[52]         Finally, I am not convinced that the plaintiffs relied to their detriment on any assurances made by Ms. Johal or any other representative of ICBC.
[53]         In light of these findings, I conclude the defendants are not estopped from relying on the valid and complete defence that is available to them under the Limitation Act.
[54]         The defendants’ applications are granted and the plaintiffs’ actions are dismissed.

bc injury law, DeWolfe v. Jones, limitation period, Mr. Justice Gaul

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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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