Tag: section 24 Insurance (Vehicle) Act

Court Says Plaintiff Should Have Questioned Hells Angels in Unidentified Motorist Claim

Written by ERIK MAGRAKEN on June 4, 2020. Posted in Uncategorized.

Reasons for judgement were published this week dismissing a Plaintiff’s unidentified motorist ICBC claim finding he failed to take reasonable efforts to follow up on the identify of the unknown motorist with the Hells Angels.

In the recent case (Gorst v. ICBC) the Plaintiff was riding a motorcycle and was passed by a group of bikers travelling in the opposite direction. One of the biker’s entered the plaintiff’s lane causing him to take evasive action leading to his collision and injuries. The biker carried on and remained unidentified.

The Plaintiff sued ICBC under the unidentified motorist provisions. The Court found the unidentified biker was indeed partly liable for the crash but dismissed the claim finding the Plaintiff could have made further inquiries with the bikers as to the identity of the offending motorist. The Plaintiff claimed he was fearful to do so as they were believed to be Hell’s Angels. The Court found that was not a satisfactory excuse and in dismissing this aspect of the claim Mr. Justice Hori provided the following reasons:

"Standard of Perfection" Not Needed for Victims of Hit and Run Collisions

Written by admin on January 3, 2019. Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, canvassing what steps are adequate for a hit and run collision victim to take in ascertaining the identify of the offending motorist before they can successfully make a claim under s. 24 of the Insurance (Vehicle) Act.
In today’s case (Ghuman v. ICBC) the Plaintiff was struck by a vehicle that fled the scene shortly after impact. The Plaintiff’s wife was in a separate vehicle nearby but did not notice the collision. The Plaintiff drove away from the scene and did not find any other witnesses. The Plaintiff sued ICBC as nominal Defendant in the place of the at fault motorist under s. 24 of the Insurance (Vehicle) Act.
ICBC argued the plaintiff should not be compensated for his injuries as he failed to take all reasonable efforts in identifying the offending motorist. Madam Justice Donegan rejected this argument finding a standard of perfection is not required under the legislation and that the plaintiff acted reasonably in the circumstances. In addressing the required standard for victims of hit and run collisions the Court noted as follows:

[62] Overall, I find the plaintiff acted reasonably at the time of the Collision and its immediate aftermath, but was unable to obtain the required information. The driver of the SUV immediately fled the scene. The lead vehicle left quickly as well. There were no other potential witnesses in the area of the Collision, other than perhaps Mr. Ghuman’s wife, but she was unaware the Collision even occurred. In these circumstances, I think a reasonable person would believe this low-impact accident was not so obvious that others in the area would have even seen it, let alone observed details of the offending vehicle in the seconds before it fled the area.

[63] However, as the case authorities make clear, the requirement to make all reasonable efforts to ascertain the identity of the other driver and owner is not limited to the immediate aftermath of the Collision. Mr. Ghuman must be found to have also made all reasonable efforts to ascertain the identity of the unknown driver and owner in the days and weeks that followed.

[64] In those days and weeks, Mr. Ghuman took several steps to try and ascertain the identity of the SUV, its driver or owner.

[65] He called police the following day and gave them all of the information he had. He also reported the Collision to ICBC the following day and followed up with the written claim form a few days later.

[66] Within a week of the Collision, Mr. Ghuman posted flyers seeking witnesses around the intersection where the Collision occurred. He retained counsel shortly thereafter to protect his interests and within about a month of the Collision, his counsel arranged for more signs seeking witnesses to be posted around the intersection and for an advertisement seeking witnesses to run for a week in the local newspaper.

[67] None of the above efforts generated any witnesses to the Collision or any information that might have led to the identity of the SUV, its driver and owner.

[68] ICBC identifies two steps that Mr. Ghuman did not take in the days and weeks following the Collision as a basis for finding that Mr. Ghuman did not make all reasonable efforts. It points to Mr. Ghuman’s failure to follow up with police and his failure to canvass business in the Strawberry Hill complex for potential video recordings or records of witnesses who may have come forward to those businesses.

[69] I agree with the observations of Justice DeWitt-Van Oosten in Rieveley that there are often other steps that a plaintiff could have taken in particular circumstances, but that s. 24(5) of the Act does not demand that a plaintiff make every conceivable effort to show it was not possible to ascertain the identity of the unknown driver or owner. Rather, what is required is that a “plaintiff act reasonably in light of surrounding circumstances, including the information known to him or her at the material time”: Rieveley at paras. 36-37.

[70] Mr. Ghuman did not follow up with police following his initial call because he reasonably believed police would not investigate the Collision and/or that any investigation would be fruitless. Mr. Ghuman reported the Collision to police because he understood that the law obliged him to, but given the circumstances of the Collision and the presence of only very generic information about the SUV, Mr. Ghuman’s belief that police would not investigate or such an investigation would be fruitless is reasonable. I accept there was little benefit in following up with the Surrey RCMP in these circumstances. To do so would be highly unlikely to produce any results.

[71] Mr. Ghuman did not check with businesses near the area for video surveillance and/or records of witnesses who may have come forward because he relied on another person, his wife, who told him that she was making some of those efforts. Not admissible for the truth that those steps were actually taken, Mr. Ghuman’s belief that some of those steps were being done does provide a reasonable explanation why he did not undertake them himself.

[72] I wish to make it very clear that there is no admissible evidence before me that those efforts (canvassing for video surveillance and/or seeking records of potential witnesses that may have come forward to nearby businesses) were made. However, in the circumstances of this case, I would not consider such extensive efforts necessary in order for this plaintiff to comply with s. 24(5). Given the distances of the surrounding businesses from the Collision site and the layout of the area, I accept there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses. Such efforts would be highly unlikely to produce any results.

[73] In the end, Mr. Ghuman is not to be held to the standard of perfection. Even if the timing of his telephone call to police and his lack of follow up with police could be viewed as something less than reasonable in and of themselves, I agree with the plaintiff that what is reasonable in all of the circumstances of one case does not rise and fall on a single effort. What sets this case apart from other cases provided is that Mr. Ghuman was faced with a driver who immediately fled the scene of a low impact type of accident in an area with transient traffic, surrounded by parking lots. Despite these obvious limitations in obtaining information regarding that vehicle’s identity, Mr. Ghuman nevertheless chose to take several positive steps to investigate. He was proactive from the outset. That he was unsuccessful is of no consequence. All that is required is that he take all reasonable steps to ascertain the identity of the unknown driver and owner of the SUV. I find that he did in the circumstances of this case.

[74] For all of these reasons, I find the plaintiff has met the onus upon him to establish that he made all reasonable efforts to ascertain the identity of the SUV’s owner and driver under s. 24(5) of the Act and that the identity of the unknown owner and driver of the SUV is not ascertainable. Accordingly, ICBC is appropriately named as the nominal defendant to this action and liability is found against ICBC.

Security Guard Run Over By Fleeing Thief Found Not Contributorily Negligent

Written by admin on January 25, 2018. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing fault for a crash involving an unidentified motorist.
In the recent case (MacKenzie v. John Doe) the Plaintiff was working as a security guard when he noticed a shoplifter. He pursued the shoplifter to his vehicle. When confronted the shoplifter ran the plaintiff over and injured him. The collision was described as follows:

[17] The plaintiff described what happened. When the individual was further along the sidewalk, the plaintiff observed him getting into the driver side of a parked vehicle. The plaintiff approached the vehicle’s passenger side and opened the door, saying “store security”. He asked for the merchandise back. The individual responded, “fuck you”, and then put the key in the ignition, started the ignition, and immediately started reversing the vehicle into the parking lot.

[18] At that time, the door of the vehicle hit the plaintiff in the chest, causing him to lose his balance. His feet slid under the passenger-side door. The plaintiff hung onto the passenger-side door as the individual reversed his vehicle out of the parking spot. He asked the individual to stop the vehicle but the individual did not do so and then the plaintiff let go. When he let go, the passenger-side door hit him. As a consequence, he lost his footing, fell and struck the back of his head on the concrete, at which point he believed his legs went under the vehicle. The individual continued driving in reverse gear all the way up a ramp where he then spun around and drove away at quick speed, quicker than the speed one would normally go when reversing a vehicle, the plaintiff testified.

[19] The plaintiff attempted to get up. However, a bystander said “I am not sure if you realize what just happened to you. You should probably stay down”. So he did. First aid arrived shortly after and then the paramedics.

The shoplifter remained unidentified and the Plaintiff applied for statutory compensation from ICBC for the hit and run collision.

ICBC argued that the Plaintiff was partly at fault for the incident. The Court disagreed and in finding the Plaintiff acted reasonably in pursuing the thief Madam Justice Maisonville provided the following reasons:

[88] I find that, in this case, the vehicle had not been started when the plaintiff approached it. I find that the car key was not in the ignition when the plaintiff opened the vehicle’s passenger-side door and, as such, the plaintiff could not reasonably anticipate carelessness or even the events as they transpired, which involved flagrant and deliberately reckless conduct…

[93] Consequently, where the defendant’s negligence rises to a level of flagrant and deliberate recklessness, the plaintiff cannot be found to be contributorily negligent, as reprehensible behaviour from a defendant is not reasonably foreseeable.

[94] Another aspect of the case before me negating contributory negligence is the fact that the plaintiff was not in violation of his company’s policy, and I cite Lewis v. Todd, [1980] 2 S.C.R. 694 in support. In Lewis, it was dark out, and an officer wearing a dark uniform was struck by a car and killed while on duty. The trial judge found no contributory negligence. On appeal, the Ontario Court of Appeal found the officer to be 25% negligent. However, on further appeal to the Supreme Court of Canada, that decision was reversed. At page 700, the Court stated:

The Court of Appeal found that Constable Lewis should not have continued unassisted with his investigation on the road. To do so was negligent. The evidence was, however, that Constable Lewis did not depart from police practice. The trial judge did not misapprehend the evidence, or ignore evidence which would have suggested that police standards required more than one officer at an accident. There was no evidence, then, to support the conclusion that Constable Lewis needed assistance and that he was negligent in not asking for it. …

[95] Given that there were circumstances which should have alerted other drivers to the presence of police officers on the highway, the court in Lewis held that there was no negligence on the part of the officer, including on the basis that he failed to keep a proper lookout.

[96] Here, in like circumstances, the defendant was well aware of the presence of the plaintiff, who asked him to stop, yet chose to ignore him and instead respond with a terse, profane answer and reverse the vehicle. I find that the plaintiff could not have reasonably foreseen what occurred, that the defendant was flagrant and deliberately reckless, and that the plaintiff is in no way contributorily negligent for the accident which occurred.

Lack of Timely Notice Derails ICBC Unidentified Motorist Lawsuit

Written by admin on February 14, 2017. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a wrongful death allegation seeking damages from ICBC on behalf of an unidentified motorist.
In today’s case (Parmar Estate v. British Columbia) the Plaintiff estate sued numerous defendants alleging they were at fault for a fatal collision. ICBC was named as a nominal defendant on the allegation that an unidentified motorist was responsible for the collision. ICBC succeeded in having the claim against them dismissed for failure of the Plaintiff giving them notice of the allegation within 6 months of the collision. In dismissing the claim against ICBC Madam Justice Gropper provided the following reasons:

[15] I do not accept the plaintiffs’ interpretation of s. 24 of the Act. Their reliance on the Jamt decision is misplaced, particularly, as noted in that decision, ICBC was named as a nominal defendant at the commencement of this action.

[16] Here, it is clear that ICBC did not receive notice of the allegations against an unknown driver within six months of the accident. The notice of civil claim can serve as notice to ICBC under s. 24(2). Even so, the notice of civil claim was not filed until two years after the accident and was not served until three years after the accident.

[17] The plaintiffs provide no explanation for the lack of notice or for the failure to serve the notice of claim for a year following its filing. As noted in the chronology, the accident was not reported to ICBC until March or April 2014. There is no basis upon which I can conclude that the notice was given to ICBC “as soon as reasonably practicable”. The lack of notice is fatal to the plaintiffs’ claim.

[18] I am satisfied that the action against ICBC raises no genuine triable issue and must be dismissed.

"Reasonable Efforts" Identifying At Fault Motorist Cannot Be Determined by way of Summary Trial

Written by admin on February 11, 2016. Posted in BCSC Civil Rule 9, Civil Procedure.

Adding to this site’s database of ICBC Unidentified Motorist prosecutions, reasons for judgement were published today by the BC Supreme Court, Kamloops Registry, finding that the Summary Judgement rule cannot be used to determine if a plaintiff made all reasonable efforts to identify the at fault driver which is a prerequisite to a successful unidentified motorist prosecution.
In today’s case (Lapointe v. ICBC) the Plaintiff used the summary judgement rule to strip ICBC’s defence alleging the Plaintiff failed to make all reasonable efforts to identify the at fault motorist. ICBC appealed and Mr. Justice Myers overturned the earlier ruling noting the Court can only address this issue when determining liability and cannot address this defense in a piecemeal fashion. In reaching this decision the Court provided the following reasons:

[8] The issue in this appeal is purely a legal one. The standard of review is therefore correctness: Ralph’s Auto Supply (B.C.) Ltd. v. Ken Ransford Holding Ltd., 2011 BCSC 999, at para. 7.

[9] I do not agree with the plaintiff’s argument which artificially separates the cause of action against the unknown driver or owner from the claim against ICBC. Although it is common practice to name John Does as substitutes for the driver and owner, the section does not require that; an action may be brought against ICBC only. It is obvious that there is no John Doe to serve and no default judgment can be taken against the unknown driver or owner. ICBC is fully in control of the defence until the time of judgment or the driver or owner is found. I do not think there is a separate claim against under ICBC under s. 24 as the plaintiff maintains.

[10] Therefore, a decision on s. 24(5) alone is not determinative of a claim and cannot result in a judgment; it is only a decision on an issue. On the basis of Century Services, it is therefore not amenable to a Rule 9-6 application.

[11] That is sufficient to allow the appeal but there is a further related point (not argued by ICBC) which reinforces this conclusion. The obligation to attempt to locate the driver or owner is a continuing one in this sense: if facts come to light that make the identity ascertainable, the plaintiff is no doubt obligated to follow up on that information. And, if the identities become known, section 24(6) provides that the driver or owner must to be substituted for ICBC in spite of any limitation period. The wording of section 24(5) is that “a judgment against the corporation must not be given unless the court is satisfied that…”. This contemplates a single judgment.

[12] I therefore do not think that a separate decision on section 24(5) can be made in advance of a decision on liability as a whole. Put another way, the time at which the court must be satisfied as to the factors in s. 24(5) is the time of the determination of liability for the accident. The opposite interpretation would allow for a scenario where s. 24(5) is determined in favour of a plaintiff, and the driver becomes known before the trial on liability. It would then make the substitution for ICBC impossible as the matter would be res judicata.

[13] I therefore allow the appeal.

Court Critical of ICBC Practices Following Hit and Run Collisions

Written by admin on October 14, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, with critical comments aimed at ICBC for their practices in dealing with hit and run claims.
In today’s case (Fitger v. John Doe) the Plaintiff was injured by the actions of an unidentified motorist. The Plaintiff contacted ICBC shortly after the collision and “essentially took the actions suggested by his ICBC claim adjuster“. In the lawsuit for damages ICBC then raised the standard s. 24 defence arguing the Plaintiff did not take all reasonable steps to identify the at fault motorist. The Plaintiff argued the defense should be struck as he relied on ICBC’s guidance. The court, while critical of ICBC’s practices, noted their actions did not go so far as to strip them of the protections of the statutory defense. In addressing ICBC’s practices Mr. Justice Meiklem commented as follows:
[10] Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached: Springer v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015 BCSC 1010 at paras. 105-116…

[16] While the doctrine of estoppel can, as a general proposition, be applied in respect of interfering with statutory rights, s. 24(5) of the Act is as much about creating an obligation on the courts to enforce an obligation on a class of claimants in the cause of preventing fraudulent claims as it is about providing a defence to ICBC.

[17] In my view, ICBC’s failure to inform the plaintiff of his s. 24(5) obligation was ill-advised from a public interest perspective. To continue to process his claim without comment on his accident-day inaction and then surprise him by pleading and pursuing a s. 24(5) defence was unfair from the plaintiff’s perspective. These facts do not, in the circumstances of this case, amount to conduct warranting the application of the doctrine of estoppel to the limited remaining issue in regard to s. 24(5).

Court Finds ICBC Under No Legal Duty To Inform an Insured of Hit and Run Claim Obligations

Written by admin on June 15, 2015. Posted in Uncategorized. 63 Comments on Court Finds ICBC Under No Legal Duty To Inform an Insured of Hit and Run Claim Obligations

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a claim for damages following a hit and run collision.
In today’s case (Li v. ICBC) the Plaintiff was injured in a 2010 rear end collision. After speaking with the at fault motorist the parties agreed to pull over and exchange information. The Defendant fled the scene. The Plaintiff claimed damages directly from ICBC pursuant to s. 24 of the Insurance (Vehicle) Act.
At trial her claim was dismissed with the Court finding she did not take all reasonable steps after the collision to identify the at-fault motorist. The Plaintiff argued ICBC could not rely on this defense as they had failed to advise her of her investigative obligations after promptly reporting the claim to ICBC. Mr. Justice Armstrong rejected this argument finding ICBC has no duty to tell their own insured customers of their obbligatos in order to successfully claim damages caused by unidentified motorists. The Court provided the following reasons:

[119] The plaintiff contends that ICBC’s failure to notify the plaintiff of her obligations to take steps to identify the owner/driver as a precondition to obtaining judgment should be interpreted as waiving their right to rely on that defence. The claimant relied on Dunn where Chiasson J.A. described the two elements of a waiver claim:

[45] As the trial judge recognized, the elements of waiver are “that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them”:Saskatchewan River Bungalows at 499.

[120] The plaintiff argues that while ICBC does not have a legal or statutory obligation, it has an equitable obligation to inform its insureds of their obligations and consequences following an accident caused by an unidentified motorist’s negligence or to obviate the possibility of the claimant assuming that ICBC has accepted the claim without the need to take further steps.

[121] Victims of unidentified motorists who do not take steps required under s. 24(5) lose access to the $200,000 fund designed to compensate the innocent victim. The plaintiff contends that claimants face serious losses when claims are defeated because they failed to take “efforts sufficient to satisfy section 24(5) (that) could have been easily and inexpensively satisfied”.

[122] Typically claimants fail to take steps to identify the negligent driver in the expectation that ICBC is administering and adjusting their claim and will not act to their prejudice. This includes an expectation that ICBC will bring s. 24(5) to their attention. In this case there was no evidence of what expectations the plaintiff held concerning ICBC’s role.

[123] The plaintiff argues that ICBC is overwhelmingly in the best position to inform their insureds on the process, and when they fail to do so they knowingly allow the injured claimant to fall into the trap that is s. 24(5).

[124] Nevertheless, the evidence in this case does not satisfy me that in its administrative processing of this hit-and-run claim ICBC consciously abandoned its rights when staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision or practice of withholding information concerning s. 24(5) of the Act while at the same time addressing Ms. Li’s claim could not operate as a waiver of their right to rely on the provisions of s. 24(5) to obtain judgment.

[125] Nothing in the evidence satisfied me that ICBC had considered the plaintiff’s claim and “unequivocally and consciously” elected to abandon its protection under s. 24(5). Further, if a hit and run claim proceeds to trial, ss. (5) is not a section of the Act that could be waived by ICBC; the section prevents the court granting judgment unless satisfied that the claimant has met the obligation under ss. (5). Although I do not decide the point, it seems to me nothing would prevent the parties from making admissions of facts necessary to prove compliance with the subsection; judgment could then be granted.

BC Court of Appeal Sends Strong Message To Cyclists Who Pass Vehicles on the Right

Written by admin on July 8, 2014. Posted in ICBC Liability (fault) Cases. 48 Comments on BC Court of Appeal Sends Strong Message To Cyclists Who Pass Vehicles on the Right

Reasons for judgement were released today by the BC Court of Appeal addressing the practice of cyclists passing vehicles on the right finding, absent limited circumstances, that it is negligent to do so.
In today’s case (Ormiston v. ICBC) the Plaintiff was involved in a 2009 cycling collision. As he proceeded down hill a vehicle ahead of him in his lane of travel “was almost stopped at the centre line”. The Plaintiff had room on the right side of the vehicle and attempted to pass. As the Plaintiff did so the motorist veered to the right causing the Plaintiff to lose control.
The motorist left the scene and remained unidentified. The reason for the sudden veering motion remained unknown. The Plaintiff sued ICBC pursuant to section 24 of the Insurance (Vehicle) Act. ICBC admitted that the collision occurred and involved an unidentified motorist, however, ICBC argued the Plaintiff was fully responsible.
At trial both the cyclist and motorist were found partly to blame. The BC Court of Appeal overturned this result finding the cyclist was full to blame for passing a vehicle on the right. In reaching conclusion the Court provided the following reasons:
[23]         Under the Motor Vehicle Act a cyclist is required to ride as near as practicable to the right side of the highway (s. 183(2)(c)). “Highway” is broadly defined to include any right of way designed to be used by the public for the passage of vehicles (s. 1). That, it is said, includes the shoulder such that sometimes cyclists must ride on it to be as near as practicable to the right side of the highway. Vehicles are required to travel on the right-hand half of the roadway (s. 150(1)). “Roadway” is defined as the improved portion of a highway designed for use by vehicular traffic but does not include any shoulder (s. 119). Vehicles cannot travel on the shoulder.
[24]         The contention is that because cyclists must sometimes ride on the shoulder while vehicles cannot travel on that part of a highway, the shoulder must, where practicable, be a lane for cyclists within the meaning of s. 158(1)(b) such that, when riding on the shoulder, they are able to take advantage of the exception it provides and pass vehicles on a roadway on their right. It does appear that what may be practicable could vary considerably having regard for the differing widths of the shoulder over any given stretch of a highway, or from one highway to the next, as well as the condition of the surface. One cyclist may have a much different view than another as to what is practicable in any given instance.
[25]         While I doubt the legislative intention was to create by this somewhat convoluted statutory route what would be thousands of miles of unmarked and ill-defined bicycle lanes across the province, I do not consider s. 158 (1)(b) constitutes an applicable exception to the prohibition against passing on the right in any event. As defined, the exception applies to a laned roadway being a roadway divided into marked lanes for vehicles travelling in the same direction. The markings divide the roadway; the lanes marked are on the roadway. A roadway does not include the shoulder. The shoulder could not be an unobstructed lane on a laned roadway. The “laned roadway” exception has, as the judge said, no application here. It does not permit cyclists to pass vehicles on the right by riding on the shoulder. It must follow the driver of the vehicle would have had no reason to expect a cyclist like Ormiston would attempt to pass on the right by riding on the shoulder. That must be particularly so here when the shoulder was not fit for a bicycle because it was strewn with gravel and Ormiston was riding as far to the right of the highway as he considered practicable.
[26]         Ormiston did a foolish thing. Rather than wait until the driver’s intentions were clear, he decided to do what the Motor Vehicle Act prohibits – pass on the right. He decided to take a chance and he was injured. Had he waited, even a few seconds, there would of course have been no accident because the vehicle drove on after it had moved to the right of its lane.
[27]         I conclude Dixon Ormiston was the sole author of his misfortune. I do not consider there to be any basis in law to hold the driver of the vehicle liable in negligence.

Employer Paid Sick Leave Benefits Non-Deductible in ICBC Uninsured Motorist Claim

Written by admin on February 7, 2013. Posted in Uncategorized.

(Update December 3, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal)
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Last year the BC Supreme Court found that employer paid wage replacement benefits are non-deductible in ICBC hit and run claims. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this issue in the context of an uninsured ICBC Claim.
In this week’s case (Jordan v. Lowe) the Plaintiff was injured by an uninsured motorist. He successfully sued for damages. When seeking to collect damages from ICBC pursuant to section 20 of the Insurance (Vehicle) Act ICBC argued they could deduct from the judgement the amount of sick leave benefits the Plaintiff collected from his employer. Mr. Justice Willcock dismissed this argument finding these benefits did not have an element of insurance to them thereby not making them deductible The Court provided the following reasons:
[20]         ICBC suggests the amendment to the Regulation, the addition of the words “compensation similar to benefits” to the definition of an insured claim, signalled the legislature’s intention to expand the definition. I agree that must necessarily be so. ICBC further suggests the expansion brought into the definition of an insured claim benefits that are not paid pursuant to insurance and the definition no longer necessarily imports an element of insurance. With respect to the able submissions of counsel, I cannot agree.
[21]         When it enacted the most recent amendments to the Regulation, the legislature must be taken to have been aware of the judgment of the Court of Appeal in Lopez. The conclusion in Lopez that the definition necessarily imports an element of insurance was founded upon the presence of the subheading to Regulation 106(1), “Exclusion of other insured loss”, and to the fact that the Regulation itself describes what are considered to be “insured claims”. While the legislature has expanded the definition of what constitutes compensation or a benefit, it has not removed or varied the subheading of the Regulation in question and has not excluded from ICBC’s liability anything other than “insured claims”.
[22]         There was some discussion in Lopez with respect to what constitutes a “benefit” under the applicable section. The amendment to the Regulation addresses that discussion and, in my view, may be applicable in some circumstances where there is some doubt with respect to what compensation in the nature of insurance is deductible. It does not, however, remove or vary the requirement described in Lopez that the compensation must have an element of insurance to it.
[23]         For reasons set out in Loeppky, which I adopt and follow, I find payment of sick leave benefits to police officers employed by the City of Vancouver Police Department pursuant to their collective agreement do not have about them an element of insurance. They are clearly benefits or compensation similar to benefits, but that alone does not suffice to cause them to fall within s. 103 of the Regulation. ICBC is not entitled to deduct them from its liability to satisfy the plaintiff in relation to his claim against the designated defendant, Mr. Lowe.

Field Used as Parking Lot Deemed "Highway" In ICBC Hit and Run Claim

Written by admin on January 17, 2013. Posted in ICBC Liability (fault) Cases, Uncategorized. 152 Comments on Field Used as Parking Lot Deemed "Highway" In ICBC Hit and Run Claim

One of the restrictions in bringing a lawsuit against ICBC for damages caused by an unidentified motorist is the incident needs to occur on a “highway“. Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the definition of highway in the context of a hit and run claim.
In this week’s case (Nadeau v. Okanagan Urban Youth and Cultural Association) the Plaintiff was struck by an unidentified motorist while standing in a field that was used as a parking area for an outdoor concert. The Plaintiff sued ICBC for damages. The Court ultimately decided that given the use of the private property at the time it was a highway and the unidentified motorist claim could proceed. In so finding Mr. Justice Powers provided the following reasons:
[82]         The Motor Vehicle Act, R.S.B.C. 1996, c. 318 defines “highway” as follows:
“highway” includes
(a) every highway within the meaning of the Transportation Act,
(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and
(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,
but does not include an industrial road;
[83]         In the present case, the issue is whether the place where the accident happened falls within the definition of “highway” in s. 1(c) of that definition. The defendant, ICBC, denies that the place where the accident occurred was a “highway” on the basis that it is a private place to which the public did not have access, or was not invited for the purposes of parking.
[114]     On June 30, when Mr. Nadeau attended the concert with his friend, Mr. Jong, they parked in an area that Mr. Jong described as an area where people with passes parked. However, there is no evidence about what passes were needed, even when this area was controlled by security. There were passes for security, crew, media, artists, guests, all access and production. It is not even clear that everybody that entered this area with a vehicle required a pass. They used their pass to get into this parking area. On July 1, when they returned, Mr. Jong’s memory is that they passed through the secondary gate and that he had to show a pass to security people at this gate. He recalls there were a couple of rows of parked vehicles in this area. He says that later in the evening, before the accident, when he came and went, that there was no security at this gate, he was not stopped, and was not required to provide any pass. Mr. Nadeau’s evidence as well is that he does not recall any security at this gate later that evening on July 1, when they attended. Mr. McMann’s evidence was that initially, in the secondary area, people needed a pass to park in this area, but then things got slack. Mr. Tosh Mugambi could only be sure that the VIP area was being strictly controlled. There were a number of different kinds of passes. The concert goers had ticket stubs, but there were a large number of different kinds of passes, artist passes, VIP passes, guest passes, and the guest could be anybody, including volunteers, or anybody who happened to receive a pass from either one of the organizers or even the owners of the property who had a number of passes.
[115]     The area has been described as a field and physically it was a field. It is private property. However, it was being used as a parking lot when the accident occurred. At some point during the concert, there was some control over who had access to this area. However, that was not consistent throughout the concert, and I am satisfied that by the evening of July 1, this secondary area was no longer being controlled or restricted by the organizers or by security. The public had access to this area for the purposes of parking. The primary parking for the concert goers was in the general parking area, but there was no longer any control or restrictions on parking in the secondary area. Therefore, I am satisfied that for several hours before and, certainly at the time of the accident, this was a place in which the public had access for the purposes of parking. The public at this time included concert goers who might proceed through this secondary gate and clearly included anyone who was there in order to carry on the business of putting on or assisting in some way with the concert, or their friends or supporters. The people that had access at that time was a broad enough group to fall within the definition of the public in s. 1(c) of the Motor Vehicle Act.