As previously discussed ICBC adjusters often operate in a legally permissible conflict of interest. When dealing with ICBC it is important to know that “your” adjuster has no obligation to advise you of your legal rights regarding a claim for compensation against the at fault motorist. This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Morris v. Doe) the Plaintiff was injured in a hit and run collision. She sued ICBC under s. 24 of the Insurance (Vehicle) Act although the claim was dismissed at trial with Madam Justice Ker finding that the Plaintiff failed to make all reasonable efforts to identify the at-fault motorist.
The Plaintiff was ordered to pay ICBC costs following trial. The Plaintiff opposed arguing this would “financially cripple” her and that such a result would be unfair because ICBC failed to advise the Plaintiff of the steps she needs to take to make a successful claim for compensation. Madam Justice Ker rejected this argument finding that the law imposes no duty on ICBC adjusters to do so. In upholding the costs award against the Plaintiff the Court provided the following reasons:
 During his oral submissions, counsel for the plaintiff argued that costs ought not to be awarded against the plaintiff as the defendant, the Insurance Corporation of British Columbia (“ICBC”), through its adjusters ought to have advised the plaintiff of the importance of immediately obtaining legal advice on the steps she needed to take to satisfy the unidentified motorist provisions of the Act. Counsel appears to argue that it is this failure and circumstance connected with the case that renders it manifestly unfair to award costs against the plaintiff in this case, citing Currie v. Thomas Estate (1985), 19 D.L.R. (4th) 594 (B.C.C.A.) at para. 47 and the reference therein to the speech of Viscount Cave in Donald Campbell & Co. v. Pollack,  A.C. 732 (H.L).
 No statutory authority or case authority was provided to support the proposition that ICBC through its employees has a duty to provide a potential plaintiff with a warning that it is in their interests to obtain legal advice. Indeed, counsel recognized and seemed to suggest that the law, although not there yet, ought to be moving in that direction. ..
 It is clear from the decisions cited in my original judgment dismissing the action that ICBC has no obligation to advise a plaintiff of the nature of the steps they need to take in order to satisfy the court they have taken all necessary and reasonable steps to ascertain the identity of the offending unidentified driver.
 I do not understand the jurisprudence or the governing statutory provisions to place any sort of positive obligation on ICBC through its employees to either advise a plaintiff of the steps they must take to ascertain an unknown driver’s identity or of the need to obtain independent legal advice on this provision.
 I cannot accede to counsel’s suggestion that ICBC or an insurer has a positive obligation to advise an insured of the need to obtain legal advice. To do so would fundamentally change the nature of the contractual relationship between the insurer and insured and place the insurer in a position of quasi-authority requiring it to provide an element of legal advice, something adjusters and claims managers may not be well suited to do and may create a host of unanticipated and unforeseen consequences.
 While the comments of Barrow J. in Tessier are compelling as to the fairness that at least notifying a plaintiff of the provisions of the Act would appear to create, the fact of the matter is that there is no statutory authority mandating that ICBC advise or alert a potential plaintiff of the provisions of s. 24(5) of the Act.
 Moreover, the jurisprudence since 2003, and most recently re-stated in Wah Fai Plumbing, establishes that denying a successful litigant its costs based on pre-litigation conduct or for reasons that appear to impose quasi-liability on the successful party and sanction non-actionable conduct is not an appropriate or principled application of the costs rules.
 I must say again that, in this case, I have a great deal of sympathy for the unsuccessful plaintiff, particularly in light of ICBC’s failure to set her straight at the outset when it was apparent she did not understand the process. However, by the time the statement of defence was issued in October 2007, it would have been clear to the plaintiff and her counsel that her case was in peril, or definitely not nearly as strong as initially believed.
If all of this seems unfair you can click here to read my views regarding a solution to this conflict of interest.