ICBC Wrong In Denying Part 7 Benefits Absent Timely Evidence Justifying Their Position
Update – an appeal of this decision was dismissed however the BC Court of Appeal noted that the trial judge erred in his interpretation of s. 101 of the Regulation in concluding that if ICBC is to rely on s. 96(f) to reject a claim for benefits, it must do so on the basis of evidence obtained before the expiry of the 60-day deadline.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, holding that ICBC cannot deny Part 7 benefits based on speculation that a pre-existing condition is causing the injury in question absent evidence justifying this position obtained within 60 days.
In today’s case (Kozhikhov v. ICBC) the Plaintiff submitted over $10,000 in medical treatment expenses which ICBC refused to pay. ICBC relied on s. 96(f) of the Regulations which excludes treatments for conditions caused by “sickness and disease” unrelated to the collision. ICBC did not have evidence justifying this position, at least not in the 60 days following the submitted claim. In holding that ICBC is obliged to pay the Part 7 benefits in these circumstances Mr. Justice Smith provided the following reasons:
 The benefits claimed in this case are subject to s. 101(b). The 60 day period for payment allows ICBC the opportunity to review and investigate the claim. Obviously, it does not give sufficient time for the extensive investigation the corporation may undertake when defending its other insured–the allegedly at fault motorist–in the tort claim, but that is consistent with summary nature of the claim and the relaxed standard of proof required of the plaintiff.
 ICBC relies on s. 96(f) of the Regulation, which reads:
The corporation is not liable to pay benefits under this Part in respect of the injury or death of a person
(f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part.
[am. B.C. Regs. 379/85, ss. 36, 37; 449/88, s. 17.]
 Section 96(f) must be read in conjunction with s. 101. If the plaintiff’s injury is caused by the sickness or disease referred to in s. 101, benefits are not payable. But in the absence of evidence that s. 96(f) applies, ICBC must pay benefits within 60 days after it receives proof of the claim.
 In other words, if ICBC is to reject a claim for specific benefits under s. 96(f), it must do so on the basis of evidence obtained before the expiry of the 60 day deadline. In cannot use evidence obtained long after the fact to justify a failure to comply with s. 101.