ICBC Claims and Default Judgement – A Seldom Pursued Remedy
Default Judgement is a step under Rule 3-8 of the BC Supreme Court Rules which lets a Plaintiff win their lawsuit if a Defendant fails to file a response in the time-lines set out in Rule 3-3.
Default judgement, however, is not a remedy that’s typically used in ICBC claims. The reason being that in addition to serving the Notice of Civil Claim on Defendants personally, Section 22 of the Insurance (Vehicle) Act requires that “Every person commencing an action for damages caused by a vehicle in BC must serve (ICBC) with a copy of the originating process….and file proof of the service in the court in which the action is pending…A further step in the action must not be taken until the expiration of 8 days after the filing“.
What this means is that if a Defendant fails to respond to a BC motor vehicle collision lawsuit in time you cannot successfully obtain default judgement unless you also served ICBC with the documents and they failed to respond.
Even if you’ve taken the above steps Default Judgement is not granted automatically and this was demonstrated in reasons for judgement published today by the BC Supreme Court, Vancouver Registry.
In today’s case (Sandhu v. ICBC) the Plaintiff sued for injuries apparently sustained in a 2002 motor vehicle collision. He filed and served the documents to start a lawsuit but ICBC did not file a defence in the time required by the Rules of Court. The Plaintiff then brought an applicaiton for judgment. Mr. Justice Voith refused to grant default judgement and noted that the Court had discretion with respect to these applicasitons. Specifically the Court held as follows:
9] I am advised by Mr. Schroeder, though there are no materials before me, that the plaintiff was injured in a car accident in the late 1990s and that his claim was settled in January of 2002. Furthermore and importantly, Mr. Schroeder confirms that because of the passage of time, his file has been destroyed, and that he has made inquiries with ICBC whose own file in relation to the matter has also, for the most part, been destroyed.
[10] Mr. Schroeder requires these materials to properly respond to Mr. Sandhu’s claims.
[11] I am not going to issue judgment. What I am going to do is adjourn the matter because of the following series of factors.
[12] First, the primary focus of Mr. Sandhu’s application is one that deals with Mr. Schroeder’s lack of compliance with time requirements. I have some flexibility or discretion with respect to such issues and, under the circumstances where Mr. Schroeder was endeavouring to ascertain what had happened in the past and to retrieve relevant file materials, I would be hesitant to award judgment.
While delay is rarely welcome in Injury Lawsuits sometimes it is part of the process. Very few ICBC claims are won by default judgment. It is always preferable for claims to be dealt with by their merits.
As a courtesy most plaintiff lawyers grant ICBC defense lawyers a little extra time if necessary to put in their formal defense. If you’re faced with this situation you’ll want to consider whether an application for default judgement has a meaningful chance of success prior to spending time and effort on a seldom used motion.