Party Substitution Orders and ICBC Unidentified Motorist Claims
As previously discussed, when injured by the fault of an unidentified motorist in BC, a Plaintiff can sue ICBC directly for damages in place of the unknown motorist provided section 24 of the Insurance (Vehicle) Act is complied with.
After a lawsuit starts, if the unknown motorist becomes known then the Plaintiff can substitute the appropriate party. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an application and, interestingly, denying it alleging the Plaintiff failed to identify the appropriate party in a timely fashion.
In this week’s case (Turnbull v. ICBC) the Plaintiff was allegedly injured when struck by a customer at his store. The Plaintiff failed to properly record the licence plate information of the motorist. The Plaintiff sued ICBC and as the litigation progressed the Plaintiff believed he was able to identify the offending motorist through employment records identifying the correct licence plate of the vehicle alleged to be involved.
The Plaintiff brought an application to substitute this person into the lawsuit. The application was denied with Master Caldwell providing the following reasons:
 In the present case, the plaintiff knew of the existence of documentation which would have identified potential defendants at the time of and at all times following the alleged incident. The plaintiff retained counsel shortly after the incident. The plaintiff and his counsel were aware well before the expiry of the limitation period that identification of the vehicle and driver was a central and important issue in the claim. No application was made during the limitation period, or even during the year following the expiry of the limitation period, to pursue the documents which the plaintiff knew existed and knew might well identify the vehicle and the driver.
 In short the plaintiff, and the plaintiff alone, bears the responsibility for the failure to identify potential defendants in a timely fashion and certainly within two years of the incident plus one year to serve. In such circumstances, if limitation periods are to have any meaning and effect in our system, the interests of justice and the potential prejudice to the intended defendant outweigh the interests of the plaintiff.
I question the correctness of this decision given section 24(6) of the Insurance (Vehicle) Act which provides as follows:
(6) If the identity of the unknown owner or driver is ascertained before judgment is granted in an action against the insurer as nominal defendant, then, despite the limitation period in the Motor Vehicle Act, that owner or driver must be added as a defendant in the action in substitution for the corporation, subject to the conditions the court may specify.
This lack of duty when seeking to substitute parties under s. 24(6) should not be confused with a Plaintiff’s duty to continue to make all reasonable efforts to ascertain the identity of the unknown motorist to maintain a section 24 action against ICBC through to trial.
I understand that the above decision is under appeal and if further reasons are issued addressing this I will provide an appropriate update to this post.