Settlement Remorse Not Enough To Have ICBC Contract Set Aside

In a recent decision of the BC Civil Resolution Tribunal and ICBC settlement was upheld despite the injuries proving worse than the Applicant had expected at the time of reaching a deal.

In the recent case (Vaidyanathan v. Kaye) the Applicant was injured in a crash caused by the Respondent.  The Applicant accepted an ICBC settlement for the minor injury cap of $5,500 (a cap that is being judicially challenged as being in violation of the Canadian Charter of Rights and Freedoms whose fate is yet to be decided).

Following settlement the Applicant was displeased with the deal finding the injuries were more compromising than anticipated.  He sued for damages.  In dismissing the claim as already settled the Tribunal provided the following reasons which serve as a good reminder that it is sensible to obtain legal advice before agreeing to an ICBC settlement to assist with making an informed decision:

21.   In general, a settlement agreement and release between an injured person and ICBC will be enforceable even if the injured person’s injuries end up being worse than they thought. To set aside the settlement agreement, Mr. Vaidyanathan must prove that the settlement was unconscionable. In the context of this dispute, I find that this means that Mr. Vaidyanathan must prove that ICBC took advantage of an inequality of bargaining power to induce him into entering into a settlement that was not fair, just and reasonable. See Gindis v. Brisbourne, 2000 BCCA 73. Put another way, in order to be set aside, the settlement must diverge from “community standards of morality”. See McCullough v. Hilton, 1998 CanLII 4316 (BC CA).

22.   First, I am not satisfied that GJ took advantage of the inequality in bargaining power between ICBC and Mr. Vaidyanathan to induce settlement. Mr. Vaidyanathan says that he settled in part because he needed the money, but there is no evidence that GJ knew or should have known that Mr. Vaidyanathan was in financial difficulty. I also do not accept that Mr. Vaidyanathan was so confused that he did not understand what he was signing. I say this mostly because Mr. Vaidyanathan attended an ICBC office the day after the July 23 phone conversation, which means he had some time to reconsider the offer or seek further legal advice about it. There is also no evidence that he raised any concerns about the settlement until he filed the CRT Dispute Notices in March 2021.

23.   The next question is whether the settlement was fair, just and reasonable. This is assessed on the date of the settlement. This means that I must look only at what the parties knew about Mr. Vaidyanathan’s injuries and potential claim as of July 23, 2019. See McCullough. I turn then to the medical evidence.

24.   ICBC received a physiotherapist report dated June 28, 2019. According to that report, Mr. Vaidyanathan reported pain in his mid to lower back and hip, left heel, and jaw. He reported taking pain medication and receiving only temporary relief from resting or changing posture. The physiotherapist’s report focused on the back and hip pain, which they concluded was caused by a soft tissue injury. The physiotherapist diagnosed Mr. Vaidyanathan with a grade II whiplash injury to his back and a strained hip, both caused at least in part by the accident. The physiotherapist noted that Mr. Vaidyanathan had returned to his activities of daily living with “some difficulty” but was “continuing to manage”. The physiotherapist did not provide a prognosis.

25.   ICBC also received a report from Mr. Vaidyanathan’s dentist on July 22, 2019. In that report, the dentist said that Mr. Vaidyanathan had tenderness and pain chewing after the accident because of damage to his wisdom tooth. The dentist recommended removing the tooth and confirmed that Mr. Vaidyanathan’s extended health insurance would cover this procedure.

26.   With respect to his foot, Mr. Vaidyanathan relies on the fact that he had an angiogram through his foot. He provided a copy of what appears to be an appointment card for May 20, 2020. It is unclear how this procedure could be related to the accident. In any event, because this happened well after the accident, I find that it is not relevant to determining whether the settlement was fair. The only objective evidence about his foot is from the physiotherapist, who reported that Mr. Vaidyanathan had a pre-existing corn on his heel which was more painful after the accident.

27.   So, was the settlement fair and reasonable based on the information the parties had on July 23, 2019? I find that it was. I find that the most crucial information was that the physiotherapist reported that Mr. Vaidyanathan had returned to his pre-accident activities with difficulty. Under section 101 of the IVA and section 3 of the Minor Injury Regulation, an injury is a minor injury if it does not substantially interfere with work or activities of daily living for more than 12 months. By July 23, 2019, just over 2 months after the accident, the only objective information GJ had was that Mr. Vaidyanathan’s injuries did not appear to substantially interfere with his activities of daily living. Therefore, I find that there was nothing to suggest that GJ’s decision to settle the claim on the basis of Mr. Vaidyanathan’s injuries being minor was contrary to community standards of morality.

28.   Mr. Vaidyanathan also alleges that he has been unable to work. There is no evidence that he was working before the accident, or that he told GJ that he was working. In fact, the physiotherapist’s report said that Mr. Vaidyanathan was retired. So, again, I find nothing wrong with GJ’s decision to offer the maximum for minor injuries.

29.   With that, I find that it was not unfair, unjust, or unreasonable for ICBC to offer to settle based on Mr. Vaidyanathan’s injuries being minor. Even if Mr. Vaidyanathan’s injuries ended up being worse than they expected, I find that he is bound by the settlement agreement and release. I find that the release is a full defence to Mr. Vaidyanathan’s claims, so they must be dismissed.

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If you would like further information or require assistance, please get in touch.

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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