Difference between pages "ICBC and Compulsory Coverage (12:X)" and "ICBC and Personal Injury Claims (12:XII)"

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{{LSLAP 12 Old System Notice}}
{{LSLAP 12 Old System Notice}}


ICBC is the sole provider of basic insurance for non-exempt vehicles in BC.  Exempt vehicles are described in sections 43–44 of the ''IVA'' and also in section 2 of the ''IVR''.  For most vehicles owned, leased or operated in BC, third-party liability coverage up to $200,000 is only available from ICBC.  Full coverage for exempt vehicles, extended coverage in excess of the basic coverage (third party liability insurance over $200,000, ''IVR'', s 67), and collision (“own damage”) insurance may be purchased from either ICBC or from private insurers. See [[Optional ICBC Insurance (12:XI)|Section XI: Optional Insurance]], below. Note that private insurers may have their own requirement for coverage that may be above and beyond the requirements of ICBC
== A. Making a Claim with ICBC ==


Vehicles licensed in BC are required by law to carry basic compulsory coverage, which is evidenced by a certificate of automobile insurance issued under the ''IVA'' to someone licensed under the ''MVA'' (i.e. the “insured”).  
The ''IVR'' provides for a number of benefits that are administered by ICBC, as the motorist's insurer, in instances where the motorist damages  his or her automobile and/or sustains injuries after an accident. These regulations can be thought of as the motorist’s “insurance policy”. All of the benefits to which a motorist is entitled are explained in the ''IA Regulations''. ICBC adjusters in claim centres around the province administer these benefits. The following outlines the general process to be expected.


'''NOTE''': The definition of “the insured” varies somewhat from section to section in the ''IVA'' and ''IVR''.
A claimant must also keep in mind that drivers have certain responsibilities at the scene of an accident. For a full list of these responsibilities, please see [[Introduction_to_Motor_Vehicle_Law_(13:I) | Chapter 13: Motor Vehicle Law]] of the LSLAP Manual.  


Driving while uninsured is an offence (''MVA'', s 24(3)(a)) which carries a maximum penalty of a fine of up to $250 and/or imprisonment of up to three months (''MVA'', s 24(5)(a)). Driving an uninsured vehicle is also an offence (''MVA'', s 24(3)(b)) which carries a fine of at least $300 and no more than $2,000 and/or imprisonment for at least seven days and no more than six months (''MVA'', s 24(5)(b)).
=== 1. Dial-A-Claim ===


When calling Dial-a-Claim, the claimant will be put in touch with a representative who will take down pertinent details of the accident, including the time, date, place, license identification of the vehicles involved, etc The representative will ask the claimant to give a brief  narrative of how the accident occurred. This narrative will be taken down and entered into the computer files at ICBC The claimant will then be given a claim number that will follow the claim and the claimant through the entire process. The claim number enables ICBC to find the claimant’s file through any office and to quickly identify the adjuster who is dealing with the claim.


== A. Scope of Coverage ==
=== 2. Meeting with the Adjuster ===


Subject to various limitations and exclusions, basic compulsory coverage is set out in the ''IVR'' and provides the insured with:
The Dial-a-Claim representative will schedule an appointment for the claimant at a local claim centre. When the claimant goes to the appointment, he or she will talk to an adjuster about the accident. The adjuster will ask the claimant to make a statement about how the accident occurred and about the injuries that the claimant sustained.  
*indemnity for third party legal liability (Part 6);
*accident benefits; no-fault benefits payable for death or injury (Part 7);
*coverage for damages caused by uninsured or unidentified motorists (Part 8);
*first party coverage (Part 10). This includes:
<blockquote>
*inverse liability (Division 1 of Part 10); and  
*underinsured motorist protection (UMP) (Division 2 of Part 10).</blockquote>


== B. Third Party Legal Liability: Part 6 of the IVR ==
The adjuster will also ask the claimant to sign “No-Fault Benefit Claim Forms”. These forms are not “releases” and by signing them, the claimant is not waiving any of his or her rights to benefits or to damages for injuries or loss emanating from the accident. The forms simply allow for the release of the claimant’s MSP number, the claimant’s SIN number, information from the claimant’s doctor, and information from  the claimant’s employer. Nonetheless, it would be prudent for unsophisticated or illiterate claimants to have someone, other than the adjuster, go over the forms with them before signing.


=== 1. Indemnity ===
=== 3. The Adjuster’s Perspective ===


This insurance indemnifies the insured against liability imposed on the insured by law for the injury or death of another, and/or loss or damage to another’s property, to a total limit of $200,000 (''IVR'', s 67), to be shared among the victims of a motor vehicle accident (Schedule 3, s 1). The base limit of liability is $500,000 in claims made for a bus, and $300,000 in claims made for a taxi or limousine. Extended Third-Party Legal Liability coverage may be purchased at the insured’s discretion. ([[Optional ICBC Insurance (12:XI)|See Section XI: Optional Insurance,]] below). '''If the insured is found legally liable, and no extended coverage has been purchased, he or she is responsible for payment of any claims in excess of the above limits.'''
While the adjuster is an agent of the claimant’s own insurance company, for purposes of administering the “no-fault benefits” the adjuster is also an agent of the tortfeasor’s insurance company and, in that capacity, has an interest in minimizing the claimant’s injuries and damages.  


As of September 16, 2019, ICBC introduced a new insurance category (blanket insurance certificate) for transportation network services (TNS) or ride-hailing companies such as Uber and Lyft. The blanket basic coverage provides coverage up to $1,000,000 third party liability when the vehicle is a) hailed by passengers through the online platform and b) is operated to transport the passengers (''IVR'', s 154). This blanket coverage is not for individual drivers and it is mandatory for ride-hailing companies.
The adjuster will typically encourage the claimant to minimize the extent of the injuries or damages. The claimant should be aware of this and  should guard against agreeing that everything is satisfactory when it is not. Claimants should be cautious not to express optimism about their injuries and should try to neither understate nor overstate their injuries.  


=== 2. Who is Covered ===
Where fault is an issue, claimants may find the adjuster manipulating their narrative to place them in a negative light. This is often done in very subtle ways and claimants should be aware of it so that they can guard against it. Typically, an adjuster will draw a map or diagram of the accident scene and state that it is “not to scale”. The Corporation may later claim that the diagram is an accurate depiction of the accident and tantamount to a confession of fault.


The definitions of “insured” for this part of the ''IVR'' may be found in ''IVR'', s 63. For our purposes, the most relevant definitions of “insured” are:
The claimant should avoid agreeing with interpretations of the accident that are made by the adjuster and should endeavour to have the  adjuster transcribe the claimant’s exact words. Typically, the adjuster will write out the claimant’s statement in longhand and then ask the claimant to review it. The claimant may feel reluctant to make changes because the adjuster has taken the time to write out the statement. The claimant should not hesitate to make changes and initial them, or to ask the adjuster to start all over again.  
<blockquote> a) a person named in an owner’s certificate; or
b) an individual who operates the vehicle described in the owner’s certificate with the consent of the owner; or  
c) an individual who operates the vehicle described in the owner’s certificate while being a member of the owner’s household.


d) where the owner is not an individual,
'''The claimant should be extremely careful in making statements to the adjuster'''. The claimant must understand that these statements will later  be scrutinized. In cases involving serious injury and cases where liability is disputed, the claimant should have a lawyer with him or her when he or she makes statements to the adjuster.  
<blockquote>(i) an officer, employee or partner of the owner for whose regular use the vehicle described in the owner's certificate is provided, or (ii) a member of the household of an officer, employee or partner of the owner, who, with the consent of the owner, uses or operates the vehicle described in the owner's certificate.</blockquote> </blockquote>


=== 3. Extension of Indemnity ===
=== 4. The “Independent” Medical Assessment ===


According to ''IVR'', s 65, indemnity is extended to an insured who operates a motor vehicle not described in an owner’s certificate issued to the insured (i.e. someone else’s car).
Under the ''IVR'', ICBC may appoint a doctor to make an “independent” medical assessment of the claimant’s condition even after your own doctor has assessed you’. While some of these doctors are objective, others may have a strong defence bias. Their task is to see if they can locate weaknesses in the claimant’s case. The claimant should take care neither to exaggerate nor to minimize the injuries.
For the purposes of s 65 only, “insured” includes the following:
<blockquote> a) a person named as an owner in an owner’s certificate;
b) a member of the owner’s household;


c) an employee or partner of the owner, where their regular use of the vehicle described in the owner’s certificate is provided for; and
=== 5. ICBC Private Investigators ===
d) the spouse of an employee or partner described in paragraph (c) where the spouse resides with the employee or partner.</blockquote>


Note that, absent this expanded definition, “insured” would not otherwise cover a member of the insured’s household operating a vehicle not described in an owner’s certificate issued to the insured.
The claimant should be aware that private investigators hired by ICBC do exist. They check up on claimants and the evidence that they gather can be used against claimants. For example, if the claimant says that he or she cannot mow the lawn or lift a bag of flour, and then goes outside and does just that, he or she runs the risk of being photographed and/or videotaped by a person employed by ICBC.


As of September 1, 2019, ICBC requires drivers to list out all the household members who may drive their vehicles, regardless of the number of times they may drive it. In addition, non-household members such as employees who may be driving the insured’s vehicle for more than 12 times a year will also be required to be listed at the time of purchasing the policy. The additional members listed will be factored into the calculation for the premium paid.
=== 6. “Minimal Damage” and ICBC Policy ===


See https://www.icbc.com/insurance/costs/drivers-experience-crash-history/Pages/Default.aspx.
The claimant should also be aware that ICBC has a well-publicized policy of declining to honour claims for injuries or losses where there is “minimal damage” to the automobiles and/or persons involved in the collision. Where the damages fall below $1,000, a claimant may find him or  herself confronted with an adjuster who states flatly that ICBC has a policy of refusing to pay claims in certain cases where science has established that injuries and damages cannot occur. An adjuster may also tell a claimant that he or she is without discretion in settling claims, and that he or she is required to employ classifications and a system of scaling, with an unsuccessful or unsatisfactory result for  the claimant. In all these situations, the claimant should know that these decisions do not represent the '''law''', but are merely ICBC '''policy''', and can be and often are challenged successfully in court, where judges may give larger awards. Recently, it appears that ICBC is revoking this policy.


If a household member or non-household member, who was not listed on the principal’s policy, gets involved in an accident, ICBC will have the right to impose a financial penalty on the principal’s policy and the principal may also be subjected to a higher premium rate when renewing the policy in the future.
== B. Identifying Parties to the Dispute ==


=== 4. Restrictions on Indemnity ===
The plaintiff(s) in a given case may be any or all of the following:
*the injured party (which could be the driver, occupant, or bystander) or the estate of the deceased; the relatives of the injured party; the registered owner of the vehicle in the accident; and/or the guardian of a party lacking the requisite mental capacity to commence an action.  


Section 65(2) of the ''IVR'' states that if an insured is operating a motor vehicle that is not described in an owner’s certificate issued to him or her, indemnity is not extended to the insured if:
In  general, anyone whose negligence may have caused or contributed to the motor vehicle accident should be joined as a defendant. This might include:
*the insured is operating the motor vehicle in connection with the business of a garage service operator;
*the drivers; passengers; the estate of deceased defendants; registered owners of vehicles; ICBC or other insurers; the ministry of BC transportation; municipalities; the parties responsible for the manufacture or maintenance of the vehicle; and/or employers.  
*the motor vehicle is owned or regularly operated by the insured;
*the motor vehicle is used for carrying passengers for compensation or hire or for commercial use;
<blockquote> *In respect of a TNS-only vehicle operated under a transportation network services authorization, this corporation's exemption applies only if injury or death of another, or loss or damage to property of another, arises out of the operation of the TNS-only vehicle when
<blockquote> (a) the vehicle has been hailed by or for passengers through the use of the online platform to which the transportation network services authorization relates, and
(b) the insured is operating the vehicle for the purposes of picking up, transporting or dropping off those passengers. </blockquote> </blockquote>
*the motor vehicle is in fact not licensed under the MVA (or similar legislation) and the insured does not have reasonable grounds to believe the motor vehicle is licensed; or  
*the insured is operating the vehicle without the consent of the owner and does not have reasonable grounds to believe that he has the consent of the owner.  


Section 77 provides, in part, that an owner seeking to rely on the coverage provided for a vehicle not named in the owner’s certificate cannot do so if he or she also owns (or leases) the non-described vehicle that has been involved in the accident (i.e. you cannot just insure one vehicle and expect this to cover all of the other vehicles in your fleet).
Appropriate third parties to the dispute will often include insurance companies (including ICBC) who, while not themselves tortfeasors, may be under an obligation to indemnify the defendant.  


Neither garage service operators nor their employees are covered by the owner’s certificate issued for customers’ vehicles while the vehicle is in the care, custody, or control of the garage service operator or his or her employee for a purpose relating to the business. “Garage service operator” is defined in Part 1 of the ''IVR'' as “the operator of a motor vehicle service facility and includes a dealer, service station operator, motor vehicle repairman, auto body shop repairman, wrecker operator, and the operator of a vehicle parking or storage facility” (s 57). To offset the effect of s 57, the garage service operator must obtain special coverage pursuant to s 150.
:'''NOTE:''' It is very important to properly determine who the parties are. Failure to do so may adversely affect the client’s claim, and/or may result in an empty judgement. See [[Introduction to Small Claims (20:I) | Chapter 20: Small Claims]] for more information (the information holds true in Supreme Court as well).  


=== 5. What is Covered ===
:'''NOTE:''' When the accident occurred “in the course of employment”, the ''Workers Compensation Act'' [''WCA''], RSBC 1996, c492, may apply. Where the ''WCA'' is engaged, the Act assumes exclusive jurisdiction over the case, and an action in tort is barred. It is therefore extremely important to fully explore the employment relationship(s) of both plaintiffs and defendants before proceeding. See [[Introduction to Workers%27 Compensation (7:I) | Chapter 7: Workers’ Compensation]] for more information.


In addition to the legal liability coverage (i.e. s 65 indemnification) outlined above, ''IVR'' ss 67 and 69 states that ICBC may also pay for:
== C. The Fault Requirement ==
<blockquote> a) “reasonable” emergency medical aid, so long as reimbursement is not provided to the insured by another insurer or under another Part;
b) emergency equipment or supplies provided to the insured (i.e. fire extinguishers, jacks or other necessary emergency equipment or supplies);


c) all or some (depending upon the circumstances) of the costs taxed against the insured in an action, in accordance with ''the Supreme Court Civil Rules'', BC Reg 56/2019 for aggregated general and specific damages; and
'''The present system of accident compensation is fault-based.''' The claimant sues in tort, which can be divided into two areas: intentional torts and negligence. Injuries that are caused with intent to contact (in the case of battery) are intentional torts. Injuries that are caused by a lack of reasonable care by one party are negligence claims. Negligence encompasses all departures from accepted reasonable standards.  
d) the pre-judgment interest under the ''Court Order Interest Act'', RSBC 1996, c 79 or analogous legislation of another jurisdiction on that part of the judgment, and pay post-judgment interest under the Interest Act, RSC 1985, c I-15 or analogous legislation of another jurisdiction on that part of the judgment, both within the limits set out in s 1 of Schedule 3 (''IVR''). </blockquote>


=== 6. What is Not Covered ===
A prerequisite to any tort action is that the damages suffered by the claimant were not caused by the claimant’s own fault. If the claimant is  partly at fault for the accident, damages will be reduced in accordance with the claimant’s degree of fault. For example, if the claimant is 50 percent to blame for the accident, his or her damages will be reduced by a corresponding amount of 50 percent.


ICBC will ''not'' indemnify an insured for certain types of damage, including:
Cases where fault is an issue frequently go to trial. Claimants should be advised that often the adjuster will suggest a claimant is fully at fault for the accident, when in fact she or he may only be partially at fault. The claimant should recognize that the adjuster is trying to dissuade the claimant from litigating a claim. The claimant may well end up establishing 50 percent fault on the part of the other driver and obtaining a 50 percent settlement.  
*loss or damage to property carried in or on a vehicle owned, rented or in the care, custody or control of an insured (s 72.1); or
*liability directly or indirectly arising out of the operation of attached equipment (i.e. machinery or equipment that is mounted on or attached to the vehicle, and which is not required for the safe operation of that vehicle) at a site where such equipment is operated, unless the attached equipment is used in accordance with the ''IVR'' (s 72(2)); or
*under Part 4, 6, 7, or 10 in respect of injury, death, loss or damage arising out of radioactive, toxic, explosive or other hazardous properties of prescribed substances under the ''Atomic Energy Contract Act'' (''IVR'', s 56(1)(a)); or
*under ''IVA'', ss 20 (uninsured vehicles) or 24 (hit and run accidents), under IVR, s 49.3 (default of premiums); or
*under Part 7 or Part 10 of the ''IVR'' in respect of any injury, death, loss or damage arising, directly or indirectly out of a declared or undeclared war or insurrection, rebellion or revolution (''IVR'', s 56(1)(b)); or
*under ''IVA'', ss 20 or s 24, under ''IVR'', ss 49 or 49.3(1)(b), Part 6 or Part 10 in respect of punitive or exemplary damages or other similar non-compensatory damages (''IVR'', s 56(1)(c)); or
*a general or special assessment, penalty or premium, payable under the ''Workers’ Compensation Act'' (British Columbia) or similar Act (''IVR'', s 72.1(1)(a)).


=== 7. Duties of the Insured ===
== D. Private Settlements ==


An insured has a duty to report to ICBC mid-term changes, as required by s 9 of the ''IVR''. These changes may result in an increase or decrease in the premiums paid to ICBC. The insured named in the owner’s certificate is obligated to report to an ICBC agent the following:
'''Private settlements should be discouraged.''' Potential plaintiffs should always consult a lawyer prior to settling a claim, whether privately or with ICBC. Similarly, potential defendants in such matters should seek the advice of a lawyer and contact ICBC prior to paying out any sums, so as not to prejudice their rights and their plan of insurance with ICBC.


<blockquote> a) any change in the insured’s address within 10 days '''after''' the change;
== E. Inequality of Bargaining Power ==
b) any acquisition of a substitute vehicle for the vehicle described in the certificate within 10 days '''after''' the acquisition;


c) any anticipated change in the use of the vehicle described in the certificate to a use to which a different insurance rate applies '''before''' such a change;
The courts may set aside a release of claim for personal injuries on the grounds that it was in circumstances where it can be shown there was inequality of bargaining power between the parties.  
d) any anticipated change in the territory in which the vehicle described in the certificate is principally used '''before''' such a change; and/or
e) any change in the location of where the insured vehicle is primarily located when not in use, within 30 days of the change, '''if''' the premium for the vehicle is established on the basis of this location, '''unless''' the vehicle is used for vacation purposes. </blockquote>


Furthermore, ICBC is not liable to indemnify an insured who, to the prejudice of ICBC, fails to comply with duties outlined in s 73 of the ''IVR''. This section states that an insured:
In [https://www.canlii.org/en/bc/bcsc/doc/1973/1973canlii1692/1973canlii1692.html?autocompleteStr=towers%20v%20affleck&autocompletePos=1 ''Towers v Affleck''], [1974] 1 WWR 714 at 719 (BCSC), Anderson J. stated that the  question to be determined is whether “the plaintiff has proved by a preponderance of evidence that the parties were on such an unequal footing that it would be unfair and inequitable to hold him or her to the terms of the agreement which he or she signed. While the court will not likely set aside a settlement agreement, the court will set aside contracts and bargains of an improvident character made by poor and ignorant persons acting without independent advice unless the other party discharges the onus on him or her to show that the transaction is fair and  reasonable.” See also [http://www.canlii.org/en/bc/bcsc/doc/1975/1975canlii1091/1975canlii1091.html?autocompleteStr=pridmore%20v%20calvert&autocompletePos=1 ''Pridmore v Calvert''] 1975 CanLII 1091 (BCSC).  


<blockquote> a) must promptly give ICBC written notice of any claim made for the accident, including any other insurance held by him or her providing coverage for the accident;
On the basis of the preponderance of the evidence (or on a balance of probabilities), therefore, the following questions should be asked:
b) must help secure evidence and information and the attendance of any witnesses;
#Was there inequality of bargaining power?
#If so, would it be unfair or inequitable to enforce the release of claim against the weaker party?


c) must cooperate with ICBC in the defence of any action or proceeding, or appeal, taken by ICBC on behalf of the insured;
Where a plaintiff signs a Release of Claim, the defendant will not be able to dismiss a claim the plaintiff subsequently makes using Rule 9-7 of the ''BC Supreme Court Civil Rules'', if the evidence leads the court to conclude that the plaintiff was misled, even if unintentionally, into believing the document signed was releasing claims in areas that the plaintiff believed to be irrelevant.


d) must allow ICBC to inspect an insured vehicle at any reasonable time;
This reasoning relies on the plea of ''non est factum'' (Latin for “not my deed”), a common law plea allowing a person who has signed a written document in ignorance of its character to argue that, notwithstanding the signature, it is not his or her deed. In other words, if the person’s mind does not go with the deed of signing, the release is not truly his or her deed.


e) must, on receipt of a claim, legal document or correspondence relating to a claim, immediately send a copy to ICBC;
Unconscionability and misrepresentation may also be successful grounds for rendering an otherwise valid Release of Claim invalid.  Unconscionability can be established when the bargain was an unfair one and when there is an inequality of power in the bargaining positions. See [http://canlii.org/en/bc/bcca/doc/1965/1965canlii493/1965canlii493.html ''Morrison v. Coast Finance Ltd.''], 1965 CanLII 493 (BCCA). Misrepresentations are untrue or misleading statements made during a negotiation.  See [http://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii795/1991canlii795.html?autocompleteStr=clancy%20v%20linqui&autocompletePos=1 ''Clancy v Linquist''] 1991 CanLII 795 (BCSC), per Scarth J.


f) must ''not'' voluntarily assume liability or settle any claim except at his or her own cost; and
In [http://www.canlii.org/en/bc/bcsc/doc/1990/1990canlii1/1990canlii1.html?autocompleteStr=mix%20v%20cum&autocompletePos=1 ''Mix v Cummings''] 1990 CanLII 1 (BCSC) [''Mix''], per Perry J., a general release discharging and releasing defendants from all claims,  damages, and causes of action resulting, or that will result, from injuries received in an automobile accident was upheld on the following basis:
g) must ''not'' fail to cooperate with ICBC in the investigation, settlement or defence of a claim or action. </blockquote>
#the court found no mutual mistake of fact based on a misconception as to the seriousness of the injuries sustained in the accident;
#the release was not the product of an unconscionable or unfair bargain; and  
#the plea of ''non est factum'' and want of ''consensus ad idem'' were unfounded in the circumstances.  


=== 8. Duties of the Corporation ===
The implication of the ''Mix'' judgment is that the presence of any of the above factors in a particular set of facts may be sufficient to invalidate a general release. Note, however, that the mere fact that a plaintiff’s injuries became more serious than he or she anticipated when signing a release will generally not invalidate the release.


On receipt of a notice of a claim under Part 6 of the ''IVR'', ICBC must, at its expense, assist the insured by investigating and negotiating a settlement where in its opinion such assistance is necessary, and defend the insured against any action for damages (s 74).
== F. Plaintiff's Duty to Mitigate ==


=== 9. Rights of the Corporation ===
The plaintiff has a duty to mitigate his/her injuries after an accident.  Generally, this means following your doctor’s instructions so that recovery from any injuries is as quick as possible.  Failing to follow your doctor’s instructions can aggravate the injury and prolong recovery, thus increasing expenses.  If this is the case, ICBC will argue that your failure to mitigate and speed up the recovery should decrease the amount of money to which you are entitled.  This occurred in [http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1697/2014bcsc1697.html?autocompleteStr=rasmussen%20v%20bl&autocompletePos=1 ''Rasmussen v Blower''], 2014 BCSC 1697, , where the plaintiff was counselled to do physiotherapy and massage, but only attended one appointment of each.  The trial judge stated that the plaintiff should have shown more perseverance and given time to allow the medical treatments to work. Due to the plaintiff’s failure to mitigate, the trial judge reduced the plaintiff’s award by 20%.


Upon assuming the defence of an action for damages brought against an insured, ICBC has the right, subject to section 79 of the Act, to the exclusive conduct and control of the defence. This right includes, but is not limited to, the right to appoint and instruct counsel, to admit liability, to negotiate, and/or settle out of court (''IVR'', s 74.1).
If you find that you are unable to afford certain treatments that are mandated, you should apply for coverage through Part 7 (no-fault) benefits (see [[ICBC and Compulsory Autoplan Coverage (12:III)#C. Accident (“No Fault”) Benefits: Part 7 of the IVR | Part III.C]]).  A judge will not take a failure to apply for these benefits as an excuse for not continuing with treatment (''Rasmussen v Blower'').


=== 10. Forfeiture of Claims and Relief from Forfeiture ===
== G. Which Court has Jurisdiction? ==


Certain conduct by the insured or applicant can result in “forfeiture”, whereby the insured is deemed to have given up his or her right to be indemnified by ICBC.  In this situation, the claim for indemnification becomes invalid. Apart from exclusions, a claim may be forfeited under s 75 of the ''IVA'' if:
=== 1. Provincial Court, Small Claims Division ===
<blockquote> a) an applicant for coverage falsely describes the vehicle for which the application is made to the prejudice of the insurer (s 75(a)(i));
b) an applicant for coverage knowingly misrepresents or fails to disclose a fact that was required to be stated in the application (s 75(a)(ii));


c) an insured violates a term or condition of or commits a fraud in relation to the plan or the OIC (s 75(b); see [[{{PAGENAME}}#11. Breach of Conditions and Consequences | Section X.B.11: Breach of Conditions and Consequences]];
The Small Claims limit is $35,000 (effective June 1, 2017).  Accordingly, claims for minor injuries may come within the jurisdiction of the Provincial Court.  The procedure for bringing a case to trial in Small Claims Court is fully set out in this Manual in [[Introduction to Small Claims (20:I) | Chapter 20: Small Claims]].


d) an insured makes a “wilfully false statement” with respect to a claim under a plan of insurance (s 75(c)).</blockquote>
A claim commenced in Small Claims court can be transferred to Supreme Court on application by one of the parties or by a judge on his or her own initiative.  Such an application should be made as early as possible for a greater chance of success.  A judge at the settlement/trial conference, at trial, or after application by a party at any time, must transfer a claim to Supreme Court if he or she is satisfied that the monetary outcome of a claim (not including interest and expenses) may exceed $35,000.  However, there may be exceptions.  A claim will remain in the Small Claims Division if the claimant expressly chooses to abandon the amount over $35,000. For personal injury claims, a judge must consider medical or other reports filed or brought to the settlement/ trial conference by the parties before transferring the claim to the Supreme Court.


'''NOTE''': According to [https://www.canlii.org/en/bc/bcsc/doc/1994/1994canlii3304/1994canlii3304.html?autocompleteStr=brooks%20v%20insurance&autocompletePos=3 Brooks v Insurance Corporation of British Columbia], 1994 CanLII 3304 (BC SC), per Bouck J, the purpose of s 19(1)(e) (now ''IVA'', s 75(c)) is to prevent intentionally deceitful misstatements for the purpose of defrauding the insurer; “exaggerated guesses” by an insured as to the value of a lost motor vehicle, or figures inserted for the purpose of goading an insurer into action, are insufficient to deny coverage unless a fraudulent purpose on the part of the insured is shown.
=== 2. Civil Resolution Tribunal ===


However, ICBC may relieve the insured from forfeiture under s 75 if said forfeiture would be “inequitable”.  Furthermore, ICBC must relieve an insured from forfeiture if: a) it is equitable to do so, and b) the insured dies or suffers a loss of mind or bodily function that renders the insured permanently incapable of engaging in any occupation for wages or profit (''IVA'', s 19(3)).
Starting April 1, 2019, the Civil Resolution Tribunal (CRT) will make decisions on the following matters, when there is disagreement between a claimant and ICBC:
*1. classification of an injury as a minor injury;
*2. entitlement to receive accident benefits claimed;
*3. entitlement to receive accident benefits claimed; and
*4. decisions regarding who is at-fault in the crash and settlement amounts for all motor vehicle injury claims below a threshold that will not exceed $50,000.


Because there are various definitions of “insured” in the ''IMVAR'' (and ''IVR''), the only reasonable interpretation of s 19 (the relief of forfeiture provision discussed above) is that it is to be read broadly to include all of the definitions: see ''Khatkar v Insurance Corporation of British Columbia'' (1993), 25 CCLI (2d) 243 (BC Prov. Ct.), per Stansfield Prov. Ct. J.
For claims started before April 1, 2019, the upper limit of $5,000 applies and the claim must be made under the CRT’s small claims jurisdiction – this is not the same as the Small Claims Court.


=== 11. Breach of Conditions and Consequences ===
The Civil Resolution Tribunal is designed to be accessible, economical, and without the need for legal representation. Claimants will still be able to hire a lawyer for most motor vehicle claims made on or after April 1, 2019, should they choose to do so. In some circumstances, the claimant may have to ask the CRT for permission to hire a lawyer. Decisions made by the Civil Resolution Tribunal can be reviewed by the Supreme Court of British Columbia.


Insured persons must be careful to abide by the terms and conditions of their plans and OICs. Coverage may be lost if an insured breaches certain conditions, including, but not limited to:
For more details, Chapter 20 of the LSLAP Manual on the CRT and its procedures:
<blockquote> a) failing to comply with s 73 of the ''IVR'', to the prejudice of ICBC [[{{PAGENAME}}#7. Duties of the Insured| See Section X.B.7: Duty of Insured]]
[https://www.lslap.bc.ca/manual.html "https://www.lslap.bc.ca/manual.html"]


b) operating a vehicle when not authorized and/or not qualified to do so (''IVR'', s 55(3)(a));
You can also find useful information on the CRT’s website:
[https://civilresolutionbc.ca/how-the-crt-works/getting-started/motor-vehicle-accidents-and-injuries/ "https://civilresolutionbc.ca/how-the-crt-works/getting-started/motor-vehicle-accidents-and-injuries/"]


c) using the vehicle in illicit trades, racing, or avoiding arrest or other police action (''IVR'', s 55(3)(b), (c) and (d));
=== 3. Supreme Court of British Columbia ===


d) towing an unregistered and/or unlicensed trailer (''IVR'', s 55(4));
The Supreme Court of British Columbia is governed by the ''Supreme Court Civil Rules''.


e) using the vehicle for a different purpose than the one declared by the insured in his or her application for insurance, except as “occasionally” permitted (''IVR'', s 55(2(a)); or
Actions involving the ICBC for damages over $50,000 (effective July 2, 2019) come within the jurisdiction of the Supreme Court of British Columbia (Accident Claims Regulations, s 7). The following represents a brief overview of the procedure for bringing a case to trial at this level.
f) naming in the owner’s certificate someone as the principal operator of the insured vehicle who is not actually the principal operator (''IVR'', s 75). </blockquote>


'''NOTE''': When the court determines who the principle driver is, it will consider the entire period covered by the insurance plan: see [https://www.canlii.org/en/bc/bcsc/doc/1981/1981canlii608/1981canlii608.html?resultIndex=1 ''Dehm v Insurance Corporation of British Columbia'', 1981 CanLII 608 (BC SC)].  
A claim commenced in Supreme Court can be transferred to the Small Claims on application by one of the parties or by a judge on his or her own initiative.  The judge must be satisfied that the monetary outcome of the claim will not exceed $50,000.  Such an application should be made as early as possible for a greater chance of success, and where appropriate, may be accompanied by an express statement by the plaintiff abandoning any claim to damages in excess of $50,000.


Despite any breach of condition by an insured, insurance money is still payable to third parties by ICBC in cases where the insured person was:
==== a) Regular Trial ====
<blockquote> a) incapable of properly controlling the vehicle because of the influence of alcohol or drugs;
b) convicted under any one of the following sections of the ''Criminal Code'', RSC 1985, c C-46 (see also ''MVA Regulations'', s 28.01 Table 4): 
<blockquote>
*s 220 (criminal negligence causing death);
*s 221 (criminal negligence causing bodily harm);
*s 236 (manslaughter); s 249 (dangerous operation of a motor vehicle);
*s 252(1) (failure to stop at an accident),
*s 253 (driving while impaired or with a blood-alcohol level exceeding 80 milligrams per 100 millilitres);
*s 254(5) (refusal or failure to give a breath sample);
*s 255 (impaired driving causing bodily harm or death);
*s 259 (4): driving while disqualified;
*a conviction under the Youth Criminal Justice Act (Canada) for any of the above offences;
*“similar result” or conviction of these offences in a jurisdiction in the U.S.; or
*a conviction under ss 95 or 102 of the MVA or similar convictions under another Canadian or American jurisdiction (both concern driving while prohibited); or </blockquote>


c) permitting another person to use the insured vehicle in a way that results in a conviction for any of the offences outlined above (IMVA Regulations, s 55). </blockquote>
===== (1) The Notice of Civil Claim =====


=== 12. Making a Claim Under Part 6: Procedural Steps and Considerations ===
A claim in the Supreme Court of British Columbia is initiated by filing a Notice of Civil Claim. The Notice of Civil Claim is served upon ICBC and the defendant(s). The ''IVR'' deals with situations where there are unknown drivers, hit and run accidents, etc. Where the defendant is an  uninsured motorist, ICBC will receive the pleadings and file a defence.


==== a) Limitation Period ====
===== (2) The Response to Civil Claim =====


Section 76 of the ''IVR'' provides that any action started to enforce third-party liability for bodily injury and/or property damage (i.e. claims made under Part 6 of the ''IVR'') must comply with the ''LA'' section 3(2)(a) of the LA provides a two-year limitation period for actions for damages related to injuries to a person and/or property, including negligence claims against the driver and/or the owner of the vehicle driven.
After the claim has been served, ICBC will appoint defence counsel on behalf of the insured, or on behalf of itself if there is an uninsured motorist, and file a Response to Civil Claim.  


Minors are not subject to a limitation period (''LA'', s7).  After the minor has reached age 19, s 3(2)(a) begins to apply and the two-year limitation period commences. However, if the minor’s guardian or litigation guardian receives a Notice to Proceed, the limitation period is initiated notwithstanding the minor status (''LA'', s 7(6)). The Notice to Proceed must meet the requirements of the ''LA'', ss 7(7)(a-g).
===== (3) Reserving a Trial Date =====


It is important to be aware of the limitation periods associated with ''IVR'' Part 7 benefits, see [[{{PAGENAME}}#C. Accident (“No-Fault”) Benefits: Part 7 of the IVR| Section X.C. Accident (“No-Fault”) Benefits: Part 7 of the ''IVR'']] below.
After the Response to Civil Claim is filed, the parties will reserve a trial date. The trial date usually falls approximately two to two-and-a-half years ahead. The reason for this delay is that the court registry is overbooked. The delay is not usually a problem since it takes some time to organize the trial and it is often not until some time after the accident that the full extent of the claimant’s injuries can be  determined. If additional time is required, when the trial date arrives, the trial can be adjourned by consent of the parties.  


==== b) Duties Outlined in Section 73 of the ''IVR'' ====
===== (4) The Examination for Discovery =====


An insured must comply with s 73 of the IVR.  Failure to do so may result in a claim being denied. '''See''' [[{{PAGENAME}}#7. Duties of the Insured | Section X.B.7. Duties of the Insured]].
Once the trial date is reserved, an Examination for Discovery may be held.  Discovery of the plaintiff is initiated at the option of defence counsel and will typically occur six months to one year after the lawsuit is initiated.  The Discovery will usually take one day but can last longer in certain cases. Prior to the Discovery, defence counsel will scrutinize the claimant’s statements to the adjuster. At the Discovery, the defence counsel will cross-examine the claimant about the manner in which the accident occurred and the extent of the claimant’s injuries.


==== c) Service on ICBC ====
Most cases are not settled until after the Discovery, since it is at this stage that defence counsel is able to assess the credibility and seriousness of the claim and make a determination respecting the sort of damages to which the claimant may be entitled.


A claimant who starts an action for damages caused by a motor vehicle or trailer must also serve ICBC with a copy of the Notice of Civil Claim the same way the defendant is served and must also file proof of service in the court in which the action is started. No further step in the action can be taken until eight days after the filing of the service in court (''IVA'', s 22).
==== b) Fast Track Litigation - Rule 15-1 ====


==== d) Information and Evidence ====
This rule was introduced to provide an efficient and less expensive means of dealing with cases where the trial will last 3 days or less.


ICBC has a broad right to compel the insured and others to provide information set out in the ''IVA''. Specific types of information that ICBC can demand are noted in s 11 (combined forms and information); s 27 (accident report); s 28 (medical reports for accidents before April 1, 2019); s 29 (employers’ reports); and s 30 (superintendent’s records).  
Fast track litigation may apply to an action if:
#The only claims in the action are for money, real property, builder's lien, and/or personal property '''and''' the total of the following amounts  is $100,000 or less, exclusive of interest and costs:
#*a) the amount of any money claimed in the action by the plaintiff for pecuniary loss;  
#*b) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss; and
#*c) the fair market value, as at the date the action is commenced, of all real property, all interests in real property, all personal  property and all interests in personal property claimed in the action by the plaintiff.
#The trial of the action can be completed within 3 days
#The parties to the action consent, '''or'''
#The court, on its own motion or on the application of any party, so orders.  


According to [https://www.canlii.org/en/bc/bcca/doc/1931/1931canlii473/1931canlii473.html?autocompleteStr=mcknight%20v%20general&autocompletePos=1 ''McKnight v General Casualty Insurance Co. of Paris''], 1931 CanLII 473 (BC CA), an insured need not provide information or evidence to an insurance company respecting a breach if the company is contemplating using such a breach to deny coverage to the insured. This is not considered to be refusing to cooperate with the insurer in the defence of the action. However, the insured may still have to provide information regarding the accident itself.
'''NOTE''': The court is not prevented from awarding damages in excess of $100,000.  


== C. Accident (“No-Fault”) Benefits: Part 7 of the ''IVR'' ==
If this rule applies to an action,
#any party may file a notice of fast track action in Form 61;
#the filing party must serve all other parties on record with a copy; '''and'''
#the words “Subject to Rule 15-1” must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed or if the court so orders.


=== 1. What are “No-Fault” Benefits? ===
*This rule ceases to apply if the court, on its own motion or on application of any party, so orders.
*Parties to a fast track action can serve on another party a notice of application or an affidavit in support of an application ONLY after a  case planning conference or a trial management conference has been conducted in relation to the action. This rule does not apply if:
**a. The court orders the fast track action to cease;
**b. If an application is made by a party, judge, or master to relieve a party from this requirement if           
***i. It is impracticable or unfair to require the party to comply; '''or'''
***ii. The fast track litigation application is urgent;
**c. If the action is scandalous, frivolous, or vexatious (as per Rule 9-5);
**d. If the action will proceed by summary judgment or summary trial (Rule 9-6 and 9-7);
**e. If an application is made to add, remove, or substitute a party; or
**f. The parties consent.
*Fast track action must be heard by the court without a jury.
*Examinations for discovery of a party of record by all parties of record who are adverse in interest must not, in total, exceed 2 hours or any greater period to which the person to be examined consents, unless otherwise ordered by a court
*All examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date, unless the court  orders otherwise or the parties to the examination consent.
*If a party to a fast track action applies for a trial date within 4 moths after the date on which this rules becomes applicable to that  action, the registrar must set a date for the trial that is not later than 4 months after the application for a trial date.
*Rule 11-8 is modified in a fast track action:
**Rule 11-8 (3): Except as provided under this rule, a party to a vehicle action may tender, at trial, only the following as expert opinion evidence on the issue of damages arising from personal injury or death:
***(a) expert opinion evidence of up to 3 experts;
***(b) one report from each expert referred to in paragraph (a).
Rule 11-8 (3) (a) is to be read as if the reference to “3 experts” were a reference to “one expert”.
**Rule 11-8 (8): In a vehicle action, only the following amounts may be allowed or awarded to a party as disbursements for expert opinion evidence on the issue of damages arising from personal injury or death:
***(a)the amount incurred by the party for up to 3 expert reports, whether or not the reports were tendered at trial, provided that each report was
****(i)served in accordance with these Supreme Court Civil Rules, and
****(ii)prepared by a different expert;
***(b)the amount incurred by the party for
****(i)a report allowed under subrule (4) or (5),
****(ii)a report referred to in subrule (6) or (7), or
****(iii)a report prepared by an expert appointed by the court under Rule 11-5 (1);
***(c)the amount incurred by the party for an expert to give testimony at trial in relation to a report, referred to in paragraph (a) or (b), that was prepared by the expert.
Rule 11-8 (8) (a) is to be read as follows: the amount incurred by the party for one expert report, whether or not the report was tendered at trial, provided that the report was served in accordance with these Supreme Civil Court Rules.


Regardless of who is at fault in an accident, ICBC pays benefits for injuries to the occupants of a licensed vehicle and pedestrians and cyclists injured by a vehicle described in any owner’s certificate. The accident benefits, commonly called “no-fault” benefits, are payable to an insured for death or injury caused by an accident arising out of the owner’s ownership, use, or operation of a vehicle in Canada or, with some restrictions, in the U.S. (''IVR'', s 79(1)).
== H. Damages ==


In [http://www.canlii.org/en/ca/scc/doc/1995/1995canlii66/1995canlii66.html?autocompleteStr=amos%20v&autocompletePos=1 ''Amos v ICBC''], [1995] 3 SCR 405, 1995 CanLII 66 (SCC), the Supreme Court of Canada laid out a two-part test for determining if death or injury falls within the scope of s 79(1). The following must be met:
Claimants often have unrealistic expectations about the amount of damages they are likely to receive. Claimants should be cautious about listening to stories of awards told by relatives and friends as these stories may be exaggerated and/or may be missing crucial pieces of information.
<blockquote> a) the accident must result from the ordinary and well-known activities to which automobiles are put; and </blockquote>


<blockquote> b) there must be some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the plaintiff’s injuries and the owner’s ownership, use, or operation of his or her vehicle. That is, the connection between the injuries and the ownership, use, or operation of the vehicle must not be merely incidental or fortuitous. </blockquote>
=== 1. How Damages are Assessed ===


''Amos'' reversed the BC Court of Appeal judgment and held that the plaintiff’s injuries were causally connected to the ownership and use of his vehicle. The plaintiff was shot while driving away from a gang who was trying to gain entry into his motor vehicle. However, Major J. noted that if the gunshots had been truly random and not causally connected to the plaintiff’s ownership of the vehicle then his injuries would not have been covered under s 79(1).
The court will determine what damages a claimant is entitled to on the basis of precedent. It is, therefore, possible to project what the court  will award by looking for similar cases. The judgments will outline the nature of the injuries sustained by the claimant and the court’s assessment of damages.


=== 2. Who is Covered? ===
=== 2. Heads of Damage ===


Section 78 of the ''IVR'' contains a definition of "insured", which includes, in part: 
To understand an award, it is necessary to consider all the heads of damage. For example, a claimant who is a brain surgeon at the height of his or her career and who has a finger amputated might have a loss of prospective earnings claim in the millions and a relatively small claim for non-pecuniary losses. In contrast, a claimant who is retired and has a leg amputated may have a relatively low loss of prospective earnings claim but a relatively high claim for non-pecuniary damages.  
*a person named as an owner in an owner's certificate;
*a household member of a person named in an owner's certificate;
*an occupant of a vehicle that is licensed in BC and is not exempted under section 43 of the ''IVA'' (vehicles from the federal or a provincial  government other than BC);
*any occupant of a vehicle that is not required to be licensed in BC, but is operated by a person named in a driver's certificate;
*a cyclist or pedestrian who collides with a vehicle described in an owner's certificate;
*a BC resident who is entitled to bring an action for injury or death under section 20 (uninsured vehicles) or 24 (remedy for hit and run accidents) of the ''IVA''; or
*the personal representative of a deceased insured.


=== 3. Benefits Payable ===
The major heads of damage are as follows:


==== a) Disability Benefits for Employed Persons ====
==== a) Non-pecuniary Damages ====


ICBC is obligated to pay “no fault” benefits to an insured person if:
Non-pecuniary damages are awarded to '''compensate''' the claimant for pain and suffering, loss of enjoyment of life, loss of expectation of  life, etc. In 1978, the Supreme Court of Canada placed a cap of $100,000 on awards for non-pecuniary damages in [http://www.canlii.org/en/ca/scc/doc/1978/1978canlii1/1978canlii1.html?autocompleteStr=andrews%20v%20grand%20&autocompletePos=1 ''Andrews v Grand & Toy Alberta  Ltd''], 1978 CanLII 1 (SCC). This means that the limit for this head of damages after adjusting for inflation, is now about $380,000.
<blockquote> a) within 20 days of the accident, the injury completely disables the insured; '''and'''</blockquote>
<blockquote> b) the insured is an “employed person” (''IVR'', s 80). </blockquote>


An “employed person” is defined in s 78 of the ''IVR'' as a person who, on the day of the accident or for any 6 months during the previous 12  months immediately preceding the accident, is employed or actively engaged in an occupation for wages or profit. Eligible insured persons who are completely unable to engage in employment can collect either 75 percent of their average gross weekly earnings or $300 per week, whichever is less, for the length of the disability or 104 weeks, whichever is shorter. See section 80 and Schedule 3 of the ''IVR'' for more details.
==== b) Loss of Prospective Earnings ====


'''NOTE''': There is a waiting period of seven days before disability benefits are paid out.  Also, no benefits are paid for these initial seven days (''IVR'', s 85).
Loss of prospective earnings is the capitalized value of the claimant’s loss of income from the time of the accident to the claimant’s  projected date of retirement. The capitalization rate will be calculated by using present rates of return on long-term investments, and an allowance will be made for the effects of future inflation. In determining the value of prospective earnings, the claimant’s earning capacity over his or her working life, prior to the accident, will be evaluated. In a claim for the capitalized value of lost prospective earnings, the defendant will seek to reduce that amount by introducing evidence of future contingencies.


==== b) Disability Benefits for Homemakers ====
==== c) Cost of Future Care ====


Insured persons who are homemakers may also be eligible for no-fault benefits. If a homemaker sustains an injury from an accident, and it substantially or continuously disables the insured from regularly performing most household tasks, ICBC will compensate the insured for the duration of the disability or 104 consecutive weeks, whichever is shorter (''IVR'', s 84(1)). The insured will be compensated for reasonable expenses incurred by the insured in hiring a person to perform household tasks on the insured’s behalf, up to a maximum of $145 per week (''IVR'', Schedule 3, s 2(b)). However, there is no compensation for household tasks performed by an insured’s family members (''IVR'', s 84(2)). Starting April 1, 2019, this amount will be increased to $280 per week.
Cost of future care is the cost of the claimant’s future care over his or her expected life span. As with loss of prospective earnings, cost of future care is capitalized and reduced for contingencies.  


==== c) Disability Beyond 104 Weeks ====
==== d) Special Damages ====


If at the end of the first two years, the total disability continues, an insured receiving benefits under s 80 or 84 of the ''IVR'' can continue to receive the payments for the duration of the disability or until the age of 65, whichever is shorter (''IVR'', s 86). The no-fault benefits will be reduced by the amount of the Canada Pension Plan benefits if and when such benefits become payable to the insured (''IVR'', s 86).
Special damages compensate the claimant for expenses like drugs, crutches, orthopaedic shoes, and artificial limbs. Claimants should keep  every document, receipt and bill that relates to their accident. The claimant must have the originals to be reimbursed.  


'''NOTE''': Any benefits payable under s 80, 84, or 86 of the IVR may be reviewed every 12 months and terminated by ICBC on the advice of its medical adviser (''IVR'', s 87).
=== 3. Lump Sum Awards and Structured Settlements ===


==== d) Medical or Rehabilitation Benefits ====
Damages can be paid in a lump sum or through a structured settlement. A structured settlement is an arrangement where the damages to which a claimant is entitled are left under the control of the insurer. The insurer enters an annuity contract with the claimant and agrees to pay that claimant a certain income for a set period of time. Structured settlements are often recommended in infant cases and cases where the claimant has a mental disability or infirmity. In rare cases, a court imposes a structured settlement.


In addition to the disability benefits described above, ICBC is obligated to pay all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing service, or for necessary physiotherapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis (''IVR'', s 88(1)). In appropriate cases, ICBC may also provide attendant care to the insured to perform duties normally undertaken by the insured (''IVR'', s 88(2)(c)). Under Schedule 3, s 3, ICBC’s liability for rehabilitation benefits is limited to $300,000. For qualification: the amount by which the liability of the corporation is limited in respect of each insured injured:
Structured settlements are worth considering if the amount of the principal settlement exceeds $50,000 to $100,000. These arrangements offer  advantages for the claimant and the insurer. One advantage for the claimant is that the interest gained on that settlement is not taxable. The claimant, therefore, gets much more money than if he or she took the lump sum and invested it. Another advantage is that the claimant does not suddenly come into a large sum of money and run the risk of spending it foolishly. The advantage to the insurer is that the Corporation doesn’t have to pay out all of the money at once and is entitled to derive income from it.
*in the same occurrence on or after January 1, 1990 and before January 1, 2018 must not exceed $150 000, and
*in the same occurrence on or after January 1, 2018 must not exceed $300 000.
Also, ICBC is not liable for expenses payable to the insured under a medical, surgical, dental, or hospital plan, or paid or payable by another insurer (s 88(6)).


==== e) Death Benefits ====
Structured settlements can be set up through a number of licensed dealers in British Columbia. Various options are available. For example, the claimant could receive a lump sum every five years, an indexed monthly sum, a monthly sum that decreases over the years, or a monthly sum and periodic lump sum payments. Most dealers do not charge for providing projections of the various income streams and the costs associated with them.


In the event of the applicant’s death, ICBC will pay:
== I. Costs ==
<blockquote> a) up to $2,500 for funeral expenses (see s 91 and s 4 of Schedule 3 of the ''IVR''), starting April 1, 2019, this amount will be increased to $7,500);
b) $5,000 if the deceased was a “head of a household” (i.e. was providing the “major portion” of household income), plus a Supplemental Death  benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per  week for each additional survivor for a duration of 104 weeks (see s 92 of the ''IVR'');


c) $2,500 if the deceased was a “spouse in household” (i.e. was supporting the household or helping to raise dependent children), plus a  Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first  survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s 92–94 and Schedule 3 ss 5, 6, 8 of the ''IVR''); and
In addition to the claim for damages, the claimant should claim costs. Courts award costs as crude compensation for the costs of pursuing the claim. Costs are calculated or assessed on the basis of a tariff set out in the ''Supreme Court Act'', RSBC 1996, c 443. They do not fully compensate the claimant for the cost of pursuing the litigation but go some distance toward paying for the disbursements and a portion of the legal fees charged by the lawyer. Claimants in Small Claims court can claim “expenses”  but not counsel fees.
d) $500 to $1,500 for the death of each dependent child, depending on the child’s age (see Schedule 3, s 5 of the ''IVR'').</blockquote>


'''NOTE''':
== J. Reaching a Settlement Before Trial ==
<blockquote> Status with respect to “head of household”, “spouse of household” or “dependent child” is determined at the date of death resulting from a motor vehicle accident.


In addition, the ''Family Compensation Act'', RSBC 1996, c 126 [FCA], creates a statutory right for claims to be brought by the surviving spouse, parent, grandparent, or child of the deceased, in some cases appropriately as against ICBC.
=== 1. Negotiation ===


The ''FCA'' provides a statutory scheme for fatal accident compensation that abrogated the common law rule that no one has a cause of action in tort against a person who has wrongfully caused the death of a third person (see [http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1168/2013bcsc1168.html?autocompleteStr=mcleod%20v%20ga&autocompletePos=5 ''Gaida Estate v McLeod''], 2013 BCSC 1168 (CanLII)).
Following the discovery, defence counsel will write a detailed reporting letter to the adjuster making recommendations about a settlement. The adjuster will present the defence counsel’s recommendations to ICBC, which may or may not accept them. Upon reply, defence counsel will inform the claimant’s counsel of ICBC's position. If the claimant is unwilling to settle, the claimant’s counsel may contact the adjuster and submit a counter-offer. This process will likely be repeated several times. These types of negotiations are expensive, time consuming, slow, and frustrating.


The ''FCA'' intends to place the claimant in the same economic position that he or she would have enjoyed but for the death of his or her spouse, parent or child.  There are only a limited number of family members that would be eligible for compensation under the ''FCA'', and the definition of who qualifies for compensation is important.  The starting point to determine eligibility for bringing a claim begins with section 1 of the ''FCA''.
=== 2. Mediation ===
Compensation under the ''FCA'' is generally limited to the following:
# damages for loss of love, guidance and affection (generally for infant children of the deceased only);
# damages for the loss of services that would otherwise have been provided by the deceased to the remaining family members;
# damages for the loss of financial support to the remaining family members;
# limited out-of-pocket expenses incurred as a direct result of a death (funeral and related expenses); and,
# damages for loss of inheritance.


</blockquote>
The Notice to Mediate is a new process by which any party to a motor vehicle action in Supreme Court may compel all other parties to the action to mediate the matters in dispute (''Notice to Mediate Regulation'', BC Reg 127/98, s 2 [''NMR'']).  The Notice to Mediate process does not provide a blanket mechanism to compel parties into mediation.  Rather, this process provides institutional support for mediation in the context of motor vehicle actions.


==== f) Reinstatement and Revival of No-Fault Benefits ====
The party that wishes to initiate mediation delivers a Notice to Mediate to all other parties in the action no earlier than 60 days after the pleading period, and no later than 77 days before the date set for the start of the trial.  Within 10 days after the Notice has been delivered to all parties, the parties must jointly agree upon and appoint a mediator (''NMR'', s 6).  The mediation must occur within 60 days of the mediator’s appointment, unless all parties agree in writing to a later date (''NMR'', s 5).  If one party fails to comply with a provision of the ''NMR'', any of the other parties may file a Declaration of Default with the court (''NMR'', s 11).  If this occurs, the court has a wide range of powers, such as staying the action until the defaulting party attends mediation, or making such orders as to costs that the court considers appropriate.


No-fault benefits can be reinstated if a person receiving benefits goes back to work only to find that the injury comes back and prevents them from working ([http://www.canlii.org/en/bc/bcsc/doc/1999/1999canlii6570/1999canlii6570.html?autocompleteStr=brewer%20v%20ins&autocompletePos=1 ''Brewer v Insurance Corporation of British Columbia''] 1999 CanLII 6570 (BC SC). This includes a situation where a plaintiff goes back to work prior to the end of the 104-week period and leaves work after the end of the 104-week period ([http://www.canlii.org/en/bc/bcca/doc/2016/2016bcca207/2016bcca207.html?autocompleteStr=symons%20v%20insu&autocompletePos=3 ''Symons v Insurance Corporation of British Columbia''], 2016 BCCA 207 (CanLII)).
The parties will share the cost of the mediator equally, unless the parties agree on some other cost sharing arrangement (''NMR'', s 9(2)(b)). The hourly rates of mediators vary, and this is a factor to be considered in selecting a mediator.  The mediator will probably spend about one hour preparing for the mediation, and the mediation session will last about three hours.


=== 4. Restrictions and Exclusion of Benefits ===
=== 3. ICBC’s Obligations to the Insured ===


Claimants should check the ''IVR'' carefully to find what restrictions are applicable to a given claim for benefits.  The following is merely a brief summary of some very complicated provisions.  Generally, ICBC is not liable to pay any of the benefits discussed above, in any of the following situations:
ICBC has an obligation to protect the insured by making an effort to settle the claim in the limits of the amounts of coverage. Insurers are under an obligation to consider the interests of their insured in deciding whether to settle a claim. The insurer assumes by contract the power of deciding whether to settle and it must exercise that power in good faith.  
*if the applicant resides outside BC '''and''' the vehicle in which he or she was riding or driving at the material time was not designated in an owner’s certificate (s 96(a));
*if the applicant at the time of the accident was an occupant of, or was struck by, a vehicle that could not be licensed under the ''MVA'' or ''Commercial Transport Act'' (s 96(b)(i));
*if the death or injury resulted from the injured person’s suicide or attempted suicide, whether “sane or insane” (s 96(c));
*if the applicant was an occupant of a vehicle being used in an illicit trade at  the time of the accident (s 96(e)); or
*if the death or injury is a result of the applicant's medical condition, as distinct from an injury caused by the accident, unless the  condition was itself a direct result of an accident for which benefits are provided under Part 7 of the ''IVR'' (s 96(f)).


Also, under s 90 of the ''IVR'', ICBC may terminate an insured’s benefits if an insured refuses to undergo any:  
In [http://www.canlii.org/en/bc/bcsc/doc/1990/1990canlii3814/1990canlii3814.html?autocompleteStr=fredrikson%20v&autocompletePos=2 ''Fredrikson v Insurance Corporation British Columbia''], 1990 CanLII 3814 (BCSC), Esson CJ. summarizes the law respecting the insurer’s duty to its insureds in certain areas discussed therein. In this particular case, ICBC acted in good faith, and in a fair and open manner, followed the course the insured wished to take. Among the points raised in the judgment are:
*medical, surgical, or other similar treatment, which, in the opinion of the ICBC medical adviser and the medical practitioner attending the insured, is likely to relieve, wholly or partly, the insured’s disability; or
*i) the exclusive discretionary power of ICBC to settle liability claims places  the insured at the mercy of the insurer
*retraining or educational program likely to assist in the insured’s rehabilitation.
*ii) this vulnerability imposes duties on the insurer to act in good faith and deal fairly, and to not act contrary to the interests of the insured, or, at least, to fully advise the insured of its intention to do so;
*iii) the insurer’s duty to defend includes the obligation to defend by all lawful means the amount of any judgment awarded against the insured.  


If ICBC intends to terminate an insured’s benefit, ICBC must first give an insured at least 60 days notice in writing, by registered mail, of  their intention to terminate benefits. Under section 90(3) of the ''IVR'', the insured may, within that 60-day period, apply to the Supreme Court for an injunction against the termination of the benefits, on the ground that:
See also [http://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii616/1991canlii616.html?autocompleteStr=shea%20v%20ma&autocompletePos=1 ''Shea v Manitoba Public Insurance Corporation''] 1991 CanLII 616 (BCSC), per Finch J.
*the treatment required of the insured is unlikely to relieve the disability; 
*the treatment may injuriously affect the balance of the insured’s health; or 
*the treatment program is not likely to assist in rehabilitation.


=== 5. Forfeiture and Breach of Conditions ===
=== 4. Formal Offers to Settle and Cost Consequences ===


The same provisions apply as those outlined under Third-Party Legal Liability. These are contained in s 19 of the ''IVA'' and s 55 of the ''IVR''. See [[{{PAGENAME}}#10. Forfeiture of Claims and Relief from Forfeiture | Section X.B.10: Forfeiture of Claims and Relief from Forfeiture]] and [[{{PAGENAME}}#11. Breach of Conditions and Consequences | Section X.B.11: Breach of Conditions and Consequences]], above.
Under Rule 9-1 of the ''Supreme Court Rules'', a plaintiff or defendant who refuses a reasonable offer to settle may be penalized for needlessly dragging out the litigation.  


=== 6. Making a Claim Under Part 7: Procedural Steps and Considerations ===
'''NOTE''': An offer to settle does not expire due to a counter offer being made.  


==== a) Limitation Period ====
For Rule 9-1 to be engaged, a formal offer to settle must be made in writing, and delivered to all parties of record, and must contain the language:


Section 103 of the IVR provides that any action started to enforce no-fault or accident benefits must do the following:
*"The  ............''[party(ies)]''............,  ............''[name(s) of the party(ies)]''............, reserve(s) the right to bring this  offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."


*the insured must have “substantially” complied with sections 97-100 (See [[{{PAGENAME}}#7. Duties of the Insured | Section III.C.6.b: Duties in Sections 97-100 of the ''IVR'']] below); and
Such an offer to settle must not be disclosed to the court/jury or set out in any proceeding until all issues in the proceeding, other than costs, have been determined. Also, an offer to settle does not constitute an admission.  
*the action must be started by the later of the following:
*a) with '''three months''' after the date of the response from ICBC;
*b) within '''two years''' after the date of the accident for which the benefits are claimed;
*c) where benefits have been paid, with two years after the date the insured last received a payment.
*These limitation periods also apply to minors.  In other words, the limitation date for Part 7 actions for minors does not commence at age 19 but commences on the date of the accident.


==== b) Duties in Sections 97-100 of the ''IVR'' ====
If a plaintiff accepts an offer, the sum of which falls in the jurisdiction of the Provincial Court (''Small Claims Act''), they are '''not''' entitled to costs, other than disbursements. However, this rule can be overridden if the court finds a sufficient reason for the proceeding taking place in the Supreme Court.


An insured must meet the requirements set out in s 97-100 of the ''IVR''.  If an insured fails to do this to the prejudice of ICBC, ICBC may deny coverage of a claim. The following is a brief summary and claimants should refer to the ''IVR'' for more detail. The insured must comply with the following:
The court, in assessing costs has broad discretion to consider a refusal to settle in making an order with respect to costs. The court may consider:
*give prompt notice to ICBC of the accident;  
*whether the offer ought to have reasonably been accepted;  
*provide a written report within 30 days of the accident;
*relationship between the terms of settlement and the final judgment of the court;  
*provide a proof of claim (a standard form authorized by ICBC and provided to applicants) within 90 days of the accident; and 
*relative financial circumstances of the parties; and/or
*at ICBC’s request, promptly provide a certificate of an attending medical professional as to the nature and extent of the insured’s injury  and the treatment, current condition, and prognosis of the injury;  
*any other factor the court considers appropriate.  
*at ICBC’s expense and request, be medically examined by someone selected by ICBC;
*where applicable, permit a post mortem examination and/or autopsy.


'''NOTE''': For liability to cease (i.e. coverage to be denied), ICBC must have suffered prejudice as a result of the applicant’ s failure to comply.
Based on such considerations, the court '''may''' do one or more of the following:  
*if it determines that the offer ought reasonably to have been accepted, then the court may deprive a party of costs, to which it would otherwise be entitled, for steps taken after the date of service or delivery of the offer to settle;
*award double costs for all or some of the steps taken in the proceeding after the delivery date of the formal offer;
*award a party costs for all or some of the steps taken in the proceeding after the delivery date of the formal offer which that party would  be entitled to had the offer not been made;
*Where the plaintiff refuses an offer to settle from the defendant, and the eventual judgement is no greater than the offer, the court may award the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of the offer.


== D. Uninsured Motorists or Unidentified Motorist (Hit and Run) Cases ==
The rules penalizing a plaintiff for overreaching the true value of a claim can be catastrophic, and can visit financial ruin upon a claimant who does not exercise a sober and realistic assessment of his or her claim as he or she proceeds into Supreme Court. It is entirely within the realm of possibility that a claimant who refuses to accept an offer of $30,000.00, after judgment for $29,000.00 (i.e. lower than the offer to settle) would finish the day, after paying the insurer’s costs and disbursements, and his or her own disbursements, with '''nothing''' or '''less than nothing''': a debt to the insurer and his or her own lawyer for disbursements.


=== 1. Claims Against Uninsured Vehicles: Section 20 of the ''IVA'' ===
It should be stressed to clients that the lawyer who is hired to do a personal injury case is supposed to be objective, realistic, and not inclined to simply tell the client what they want to hear.  When a lawyer talks about the risks of litigation, this penalty for misjudging the value of a case is one of the most important risks to consider.
 
While it is against the law, there are some drivers who operate motor vehicles without any insurance.  If a claimant suffers damages from an uninsured motorist, he or she is not without a remedy.  Instead, the claimant may make a claim to ICBC for compensation. 
 
==== a) Definition of Uninsured Vehicle ====
 
Under the current ''IVA'', an “uninsured motorist” continues to be defined as someone who operates a motor vehicle without third-party liability coverage of at least $100,000.  When death, personal injury, or property damage results from the use of an uninsured vehicle, a claimant may apply to ICBC under s 20 for compensation.
 
==== b) Limitation Period ====
 
The claimant must meet the requirements set out in the ''LA''.  The claimant has two years from the date of the loss to start an action for personal injury, death, and/or property damage (''LA'', s 3(2) and ''Civil Resolution Tribunal Act'', s 13).
 
==== c) Rights and Obligations of ICBC ====
 
If ICBC receives such an application under s 20, it must forward a notice it to the owner or driver of the uninsured motor vehicle, by registered mail (''IVA'', s 20(3)).  If ICBC pays out any amount under this section, it is subrogated to the rights of the person paid (i.e. the successful claimant). Also, ICBC may maintain an action in its name or in the name of the successful claimant against the person liable (''IVA'', s 20(11)).
 
After ICBC has given notice to the owner or driver of the uninsured vehicle (“the defendant”), it has control over the resolution of the case.  ICBC is deemed to be the agent of the defendant for service of notice. Thus, the Claimant may start an action against the defendant by serving ICBC with a Notice of Claim in Small Claims or a Notice of Civil Claim in Supreme Court.
 
ICBC has the authority to settle or consent to judgement, at any time, in the name of the uninsured defendant. But, if the defendant responds within the time limit indicated in the notice, then ICBC is not entitled to recover from the defendant without a judgment (s 20(5)).
If the claimant serves the uninsured defendant directly and he or she does not enter an appearance or does not file a Response to Civil Claim, or does not appear at trial, or does anything that permits default judgment to be taken against him or her, then ICBC may intervene. ICBC can defend the action in the name of the defendant. ICBC’s acts are deemed to be the defendant’s acts (''IVA'', s 20(7)).
 
==== d) ICBC Liability Limited ====
 
There is a limit to how much ICBC will pay out for any individual claim made under section 20 of the ''IVA''. Regardless of the number of claims or the number of people making claims, the limit of ICBC’s liability arising out of the same accident is $200,000, including claims for costs, pre-judgment, and post-judgment interest (see ''IVR'', s 105 and Schedule 3, s 9(1)).
 
The insured and the claimant both have an obligation to seek other sources of coverage. Applicants may have other sources of insurance, including claims or benefits under the ''Workers’ Compensation Act'', RSBC 1996, c 492, the ''Employment Insurance Act (Canada)'', RSC 1996, c 23, and/or the government of Canada or provinces or territories. It is important that applicants apply for all benefits they are entitled to under the above sources of coverage or other similar sources coverage since ICBC is relieved from paying the of judgment equal to what is provided by these sources.
 
Furthermore, applicants should also apply for all benefits and/or coverage from any private insurance that they may have as soon as possible.  An applicant may have private insurance through their employer.  ICBC may not be obligated to pay benefits that could have been received (note: need not actually receive) from another source.  If a decision is made concluding that ICBC is not liable for these amounts, the limitation period for making a claim through the other source will most likely have ended.  See section 81, 83 and 106 of the ''IVR'' for more details.
 
Also, see [[{{PAGENAME}}#3. Exclusion of ICBC Liability | Section III.D.3. Exclusion of ICBC Liability]], below.
 
'''NOTE''': Any dispute as to entitlement or amount of damages an insured is entitled to recover must be submitted for arbitration under the ''Commercial Arbitration Act'', RSBC 1996, c 55 (''IVR'', s 148.2).
 
'''NOTE''': Excess underinsured motorist protection may still be purchased through insurers and presumably is intended to be covered under ''IVA''  Part 4 (Optional Insurance Contracts).
 
=== 2. Claims Against Unidentified or Hit and Run Motorists: Section 24 of the ''IVA'' ===
 
Where personal injury, death, or property damage over $150 arises out of the use of a vehicle on a road '''in British Columbia''' and the identity of the driver and owner cannot be ascertained (or the ascertained owner is not liable, as would be the case if the vehicle had been stolen), the injured party may sue ICBC as nominal defendant. For accidents occurring outside BC, see [[{{PAGENAME}}#1. Inverse Liability and Uninsured or Hit and Run Accidents Outside BC | Section III.E.1: Inverse Liability and Uninsured or Hit and Run Accidents Outside BC]].
 
==== a) Reasonable Efforts to Ascertain Identity ====
 
In order for a claimant to make a claim or get a judgment against ICBC under s 24 of the IVA, the court must first be satisfied that all reasonable efforts have been made to ascertain the identity of the owner and/or driver (IVA'', s 24(5)). [http://www.canlii.org/en/bc/bcca/doc/1992/1992canlii1263/1992canlii1263.html?autocompleteStr=leggett%20&autocompletePos=1 ''Leggett v Insurance Corporation British Columbia''], 1992 CanLII 1263 (BCCA), states that the critical time of taking steps to ascertain the identity of the driver is immediately at the scene of the accident, and that reasonable efforts must be interpreted in the context of the claimant’s position and ability to discover the driver or owner’s identity. This could include taking down the description of the vehicle, including the license plate number, if the claimant is able to at the scene. If the identity of those persons cannot be ascertained, ICBC is authorized to settle any such claims, or to conduct the defence of the case as it sees fit.
 
==== b) Written Notice to ICBC ====
 
To proceed with the claim, the claimant must give written notice to ICBC “as soon as reasonably practicable” and within six months of the accident (''IVA'', s 24(2).
 
==== c) Police Report Requirements ====
 
A claimant must make an accident report to the police (''IVA'', s 107(1)). More specifically, the claimant must:
*make a report to the police within 48 hours of discovering the loss or damage;
*get the police case file number for the police report; and
*on ICBC’s request, advise ICBC of the police case file number. 
 
If a claimant fails to comply with the above without reasonable cause, then ICBC will not be liable to pay the claim made under s 24 of the ''IVA''.
 
==== d) Limitation Period ====
 
Once notice has been properly provided, the claimant must also meet the requirements set out in the ''Limitation Act''. The claimant has two years from the date of the loss to start an action for personal injury, death, and/or property damage (''LA'', s 3(2)).
 
=== 3. Exclusion of ICBC Liability ===
 
There are certain situations where ICBC will not be liable to pay a claim made under section 20 and/or section 24 of the ''IVA''. ICBC will '''not''' be liable:  
*to a claimant, under s 24 of the ''IVA'', who fails to comply with section 107(1) of the ''IVA'' without reasonable cause (see [[{{PAGENAME}}#10. |  Section III.D.2.c]]): Police Report Requirements);
*to a claimant, under s 20 or 24 of the ''IVA'', for loss or damage arising while the vehicle was in the claimant’s possession without the owner’s consent (i.e. stolen) (''IVR'', s 107(2)(a)).
 
=== 4. Forfeiture and Breach of Conditions ===
 
The same provisions apply as those outlined under [[{{PAGENAME}}#10. Forfeiture of Claims and Relief from Forfeiture | Section III.B.10: Forfeiture of Claims and Relief from Forfeiture]] and [[{{PAGENAME}}#11. Breach of Conditions and Consequences | Section III.B.11: Breach of Conditions and Consequences]], above. These are contained in s 19 of the ''IVA'' and s 55 of the ''IVR''.
 
== E. First Party Coverage Under Part 10 of the IVR ==
 
=== 1. Inverse Liability and Uninsured or Hit and Run Accidents Outside British Columbia: Part 10, Division 1 of the ''IVR'' ===
 
==== a) Section 147 Claims: Inverse Liability ====
 
===== (1) What is Inverse Liability? =====
 
Inverse liability coverage is part of the basic insurance plan, which covers costs to vehicle repairs when an insured is involved in an  accident out of British Columbia. More specifically, the basic compulsory coverage will pay for loss or damage to a BC vehicle resulting from  an accident occurring '''outside BC'''. but in Canada or the U.S. if the insured does not have a right of action under the law of:
*the place where the accident happened; or 
*the place where the person responsible for the accident is a resident (e.g. unidentified defendant following a hit and run collision). 
 
===== (2) Who is Covered? =====
 
Section 147 of the ''IVR'' has its own definition of “insured”, which includes: 
*(a) the person named as an owner in an owner's certificate or if deceased, his or her personal representative;
*(b) a person who can provide written proof that he or she is the beneficial owner of a commercial vehicle described in an owner's certificate; or 
*(c) the renter of a vehicle described in an owner's certificate.
 
===== (3) What is Covered? =====
 
“Loss or damage” in this section means damage to the vehicle and does not include compensation for medical or rehabilitation costs. Compensation is to the extent to which the insured would have recovered if he or she had a right of action. In other words, ICBC will pay to the extent that the other driver is found liable (''IVR'', s 147).  However, this amount is limited to the lesser of the cost of the vehicle repair, the declared value of the vehicle, or the actual cash value of the vehicle. 
 
===== (4) Dispute Resolution =====
 
If the insured is found to be at fault or partially at fault, he or she will be responsible for paying for the remaining costs of repair to  the vehicle, unless the insured person purchased collision coverage (see [[Optional ICBC Insurance (12:IV)#(1) Collision | Section IV.B.2.1: Collision]]). If a dispute between the claimant and ICBC arises  under  this  section,  it  must  be  arbitrated.  Once the  arbitrator adjudicates the dispute, the reasons for the decision must be published.
 
==== b) Section 148 Claims: Accidents in Nunavut, Yukon, Northwest Territories or the U.S.A. ====
 
This section deals with the scenario of a person having a motor vehicle accident in Nunavut, the Yukon, or Northwest Territories, or the U.S. that involves an uninsured or unidentified motorist.
 
===== (1) Who is Covered? =====
 
A person involved in a motor vehicle accident may be entitled to compensation under section 148(2) of the ''IVR'', if that person:
*is a person named as an owner in the owner’s certificate, or a household member of the person named as an owner in the owner’s certificate;
*suffers death or injury in the Nunavut, Yukon, Northwest Territories or the U.S.; '''and'''
*the vehicle responsible is an unidentified or uninsured vehicle. 
 
===== (2) How Much is the Coverage? =====
 
ICBC’s liability (i.e. the payout) is limited to $200,000 (see Schedule 3, s 11 of the ''IVR''). Payments are subject to adjustment if recovery or  partial recovery is made from another party (''IVR'', s 148(2)).
 
===== (3) Exclusion or Limitation of Liability by ICBC =====
 
If a claim is made under this section, the claimant must be sure to comply with the requirements set out in s 148 of the ''IVR''. ICBC will not be liable (i.e. ICBC will not compensate the claimant) in the following situations:
*if the insured has a right of recovery under an unsatisfied judgment;
*if the insured was operating a vehicle without the consent of the vehicle’s owner;
*if the insured fails to comply with s 148(4)b) '''to the prejudice of ICBC''' (see immediately below); '''or'''
*if the insured fails to comply with s 148(5) (see immediately below).
 
===== (4) Insured’s Obligations Under Section 148(4) and (5) of the ''IVR'' =====
 
Under section 148(4)(b) of the ''IVR'', the insured:
*must file a copy of the originating process with ICBC within 60 days of the action commencing; '''and'''
*must not settle a claim without the written consent of ICBC
 
Under s 148(5) of the ''IVR'', the insured (or his or her representative) must: 
*for accidents involving an '''unidentified''' vehicle, report the accident, within 24 hours of the accident, to the police, or the administrator of any law respecting motor vehicles;
*file with ICBC, within 28 days of the accident, a statement under oath that: a) the insured has a cause of action arising out of the accident  against the owner or driver of an '''unidentified or uninsured''' vehicle and b) setting out the facts in support of that statement; '''and'''
*at ICBC’s request, allow ICBC to inspect the insured’s motor vehicle that was in the accident.
 
:'''NOTE:''' Payments made under s 148 will be deducted from the amount aninsured is entitled to under Parts 6 or 7 of the ''IVR'' (s 148(6) and (7)). Also, ICBC will not be liable to pay any benefit, indemnity, or compensation payable from another source, including: Workers Compensation, Employment Insurance, and any government bodies (s 106(1)).
 
===== (5) Dispute Resolution =====
 
Any dispute between the claimant and ICBC under this section must be arbitrated. The arbitrator who adjudicates the dispute must publish the reasons for the decision (''IVR'', s 148(8)).
 
=== 2. Underinsured Motorist Protection (UMP): Part 10, Division 2 of the ''IVR'' ===
 
==== a) What is UMP Coverage? ====
 
$1 million of UMP coverage is part of the basic compulsory coverage motorists have with ICBC. It provides compensation against bodily injury or death for  the victim of an accident caused by a motorist who does not carry sufficient insurance to pay for the claims.  The maximum coverage under UMP is $2,000,000 (which an insured must pay an extra premium to purchase) for each insured person (Schedule 3, s 13 of the ''IVR''). This limit includes claims for prejudgment and post-judgment interest and costs. See section 148.1(5).
 
==== b) Prerequisites for UMP Coverage ====
 
Generally, UMP coverage is available where an insured’s death or injury is caused by the operation of a vehicle operated by an underinsured  motorist, and occurs in Canada or the U.S.
 
If an insured is making a claim for UMP coverage in the relation to a '''hit and run''' accident, there are additional requirements that need to be met. Under section 148.1(4), the following criteria must also be met:
*the accident must occur on a highway; and
*the  accident must have '''physical''' contact between the insured vehicle and the unidentified vehicle, '''if''' it occurred in the Yukon, Northwest Territories, or U.S.
 
==== c) Who Is Covered? ====
 
Section 148.1 of the ''IVR'' has its own definition of “insured”. Note that the insured need not be in his or her car to be eligible for compensation. Under this section, “insured” includes, but is not limited to:
*a person named in the owner’s certificate and members of his or her household; 
*any person who is an occupant of the insured vehicle; 
*any person with a valid BC “driver’s certificate” (i.e. driver’s license) and members of his or her household; and
*any person entitled, in the jurisdiction in which the accident occurred, to maintain an action against the underinsured motorist for damages because of the death of one of the insured.
 
==== d) Who is Not Covered? ====
 
There are certain people who are not entitled to UMP coverage. Section 148.1(3) of the ''IVR'' describes when ICBC will not be liable. The following are most relevant, whereby coverage is denied if:
*the insured’s vehicle was in fact not licensed and the insured had no reasonable grounds to believe it was; or
*the vehicle’s operator or passenger did not have the owner’s consent to operate or be in the vehicle and ought to have known there was no  consent (i.e. the operator or passenger is in a stolen vehicle). 
 
==== e) UMP Coverage and Accidents Outside B.C. ====
 
For accidents occurring outside BC, the '''law of the accident occurred determines the legal liability of an underinsured motorist''', whereas the '''amount''' of the UMP claim is determined by BC law. See section 148.2(6) of the ''IVR''.
 
UMP protection does not apply in a jurisdiction where the right to sue for injuries caused by a vehicle accident is barred by law (''IVR'', s 148.2(4)). UMP coverage does not apply to vehicles used as buses, taxis, or limousines (s 148.4).
 
==== f) Forfeiture and Breach of Conditions ====
 
Under section 148.2(5) of the ''IVR'', the same provisions that apply to those outlined under Third Party Legal Liability also apply here (see [[{{PAGENAME}}#10. Forfeiture of Claims and Relief from Forfeiture | Section III.B.10: Forfeiture of Claims and Relief from Forfeiture]] and [[{{PAGENAME}}#11. Breach of Conditions and Consequences | Section III.B.11: Breach of Conditions and Consequences]], above.). An award otherwise available under UMP will be reduced by any amount forfeited by a breach outlined in s 55.
 
==== g) Dispute Resolution ====
 
Any dispute between the claimant and ICBC must be arbitrated. An arbitrator who adjudicates a dispute under this section must publish the  reasons for the decision (''IVR'', s 148.2(1.1) and ((2.1)).


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Revision as of 18:19, 11 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 12, 2020.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
12. Auto Insurance (ICBC)
 · I. Introduction

 · II. Governing Legislation and Resources
 · III. Basic Coverage
 · IV. Optional Insurance
 · V. Seeking Legal Counsel
 · VI. Disputes with ICBC
 · VII. When You Can Still Sue
 · VIII. On or Before April 30 2021
 · IX. Limitation on Experts
 · X. Compulsory Coverage
 · XI. Optional Insurance
 · XII. Personal Injury Claims

 · XIII. Out-of-Province
v • d • e



NOTE: The following portion of this chapter was written prior to April 30, 2021. Therefore, though it is written in the present tense, please be advised that it applies only to claims for accidents that occurred on or before April 30, 2021.

A. Making a Claim with ICBC

The IVR provides for a number of benefits that are administered by ICBC, as the motorist's insurer, in instances where the motorist damages his or her automobile and/or sustains injuries after an accident. These regulations can be thought of as the motorist’s “insurance policy”. All of the benefits to which a motorist is entitled are explained in the IA Regulations. ICBC adjusters in claim centres around the province administer these benefits. The following outlines the general process to be expected.

A claimant must also keep in mind that drivers have certain responsibilities at the scene of an accident. For a full list of these responsibilities, please see Chapter 13: Motor Vehicle Law of the LSLAP Manual.

1. Dial-A-Claim

When calling Dial-a-Claim, the claimant will be put in touch with a representative who will take down pertinent details of the accident, including the time, date, place, license identification of the vehicles involved, etc The representative will ask the claimant to give a brief narrative of how the accident occurred. This narrative will be taken down and entered into the computer files at ICBC The claimant will then be given a claim number that will follow the claim and the claimant through the entire process. The claim number enables ICBC to find the claimant’s file through any office and to quickly identify the adjuster who is dealing with the claim.

2. Meeting with the Adjuster

The Dial-a-Claim representative will schedule an appointment for the claimant at a local claim centre. When the claimant goes to the appointment, he or she will talk to an adjuster about the accident. The adjuster will ask the claimant to make a statement about how the accident occurred and about the injuries that the claimant sustained.

The adjuster will also ask the claimant to sign “No-Fault Benefit Claim Forms”. These forms are not “releases” and by signing them, the claimant is not waiving any of his or her rights to benefits or to damages for injuries or loss emanating from the accident. The forms simply allow for the release of the claimant’s MSP number, the claimant’s SIN number, information from the claimant’s doctor, and information from the claimant’s employer. Nonetheless, it would be prudent for unsophisticated or illiterate claimants to have someone, other than the adjuster, go over the forms with them before signing.

3. The Adjuster’s Perspective

While the adjuster is an agent of the claimant’s own insurance company, for purposes of administering the “no-fault benefits” the adjuster is also an agent of the tortfeasor’s insurance company and, in that capacity, has an interest in minimizing the claimant’s injuries and damages.

The adjuster will typically encourage the claimant to minimize the extent of the injuries or damages. The claimant should be aware of this and should guard against agreeing that everything is satisfactory when it is not. Claimants should be cautious not to express optimism about their injuries and should try to neither understate nor overstate their injuries.

Where fault is an issue, claimants may find the adjuster manipulating their narrative to place them in a negative light. This is often done in very subtle ways and claimants should be aware of it so that they can guard against it. Typically, an adjuster will draw a map or diagram of the accident scene and state that it is “not to scale”. The Corporation may later claim that the diagram is an accurate depiction of the accident and tantamount to a confession of fault.

The claimant should avoid agreeing with interpretations of the accident that are made by the adjuster and should endeavour to have the adjuster transcribe the claimant’s exact words. Typically, the adjuster will write out the claimant’s statement in longhand and then ask the claimant to review it. The claimant may feel reluctant to make changes because the adjuster has taken the time to write out the statement. The claimant should not hesitate to make changes and initial them, or to ask the adjuster to start all over again.

The claimant should be extremely careful in making statements to the adjuster. The claimant must understand that these statements will later be scrutinized. In cases involving serious injury and cases where liability is disputed, the claimant should have a lawyer with him or her when he or she makes statements to the adjuster.

4. The “Independent” Medical Assessment

Under the IVR, ICBC may appoint a doctor to make an “independent” medical assessment of the claimant’s condition even after your own doctor has assessed you’. While some of these doctors are objective, others may have a strong defence bias. Their task is to see if they can locate weaknesses in the claimant’s case. The claimant should take care neither to exaggerate nor to minimize the injuries.

5. ICBC Private Investigators

The claimant should be aware that private investigators hired by ICBC do exist. They check up on claimants and the evidence that they gather can be used against claimants. For example, if the claimant says that he or she cannot mow the lawn or lift a bag of flour, and then goes outside and does just that, he or she runs the risk of being photographed and/or videotaped by a person employed by ICBC.

6. “Minimal Damage” and ICBC Policy

The claimant should also be aware that ICBC has a well-publicized policy of declining to honour claims for injuries or losses where there is “minimal damage” to the automobiles and/or persons involved in the collision. Where the damages fall below $1,000, a claimant may find him or herself confronted with an adjuster who states flatly that ICBC has a policy of refusing to pay claims in certain cases where science has established that injuries and damages cannot occur. An adjuster may also tell a claimant that he or she is without discretion in settling claims, and that he or she is required to employ classifications and a system of scaling, with an unsuccessful or unsatisfactory result for the claimant. In all these situations, the claimant should know that these decisions do not represent the law, but are merely ICBC policy, and can be and often are challenged successfully in court, where judges may give larger awards. Recently, it appears that ICBC is revoking this policy.

B. Identifying Parties to the Dispute

The plaintiff(s) in a given case may be any or all of the following:

  • the injured party (which could be the driver, occupant, or bystander) or the estate of the deceased; the relatives of the injured party; the registered owner of the vehicle in the accident; and/or the guardian of a party lacking the requisite mental capacity to commence an action.

In general, anyone whose negligence may have caused or contributed to the motor vehicle accident should be joined as a defendant. This might include:

  • the drivers; passengers; the estate of deceased defendants; registered owners of vehicles; ICBC or other insurers; the ministry of BC transportation; municipalities; the parties responsible for the manufacture or maintenance of the vehicle; and/or employers.

Appropriate third parties to the dispute will often include insurance companies (including ICBC) who, while not themselves tortfeasors, may be under an obligation to indemnify the defendant.

NOTE: It is very important to properly determine who the parties are. Failure to do so may adversely affect the client’s claim, and/or may result in an empty judgement. See Chapter 20: Small Claims for more information (the information holds true in Supreme Court as well).
NOTE: When the accident occurred “in the course of employment”, the Workers Compensation Act [WCA], RSBC 1996, c492, may apply. Where the WCA is engaged, the Act assumes exclusive jurisdiction over the case, and an action in tort is barred. It is therefore extremely important to fully explore the employment relationship(s) of both plaintiffs and defendants before proceeding. See Chapter 7: Workers’ Compensation for more information.

C. The Fault Requirement

The present system of accident compensation is fault-based. The claimant sues in tort, which can be divided into two areas: intentional torts and negligence. Injuries that are caused with intent to contact (in the case of battery) are intentional torts. Injuries that are caused by a lack of reasonable care by one party are negligence claims. Negligence encompasses all departures from accepted reasonable standards.

A prerequisite to any tort action is that the damages suffered by the claimant were not caused by the claimant’s own fault. If the claimant is partly at fault for the accident, damages will be reduced in accordance with the claimant’s degree of fault. For example, if the claimant is 50 percent to blame for the accident, his or her damages will be reduced by a corresponding amount of 50 percent.

Cases where fault is an issue frequently go to trial. Claimants should be advised that often the adjuster will suggest a claimant is fully at fault for the accident, when in fact she or he may only be partially at fault. The claimant should recognize that the adjuster is trying to dissuade the claimant from litigating a claim. The claimant may well end up establishing 50 percent fault on the part of the other driver and obtaining a 50 percent settlement.

D. Private Settlements

Private settlements should be discouraged. Potential plaintiffs should always consult a lawyer prior to settling a claim, whether privately or with ICBC. Similarly, potential defendants in such matters should seek the advice of a lawyer and contact ICBC prior to paying out any sums, so as not to prejudice their rights and their plan of insurance with ICBC.

E. Inequality of Bargaining Power

The courts may set aside a release of claim for personal injuries on the grounds that it was in circumstances where it can be shown there was inequality of bargaining power between the parties.

In Towers v Affleck, [1974] 1 WWR 714 at 719 (BCSC), Anderson J. stated that the question to be determined is whether “the plaintiff has proved by a preponderance of evidence that the parties were on such an unequal footing that it would be unfair and inequitable to hold him or her to the terms of the agreement which he or she signed. While the court will not likely set aside a settlement agreement, the court will set aside contracts and bargains of an improvident character made by poor and ignorant persons acting without independent advice unless the other party discharges the onus on him or her to show that the transaction is fair and reasonable.” See also Pridmore v Calvert 1975 CanLII 1091 (BCSC).

On the basis of the preponderance of the evidence (or on a balance of probabilities), therefore, the following questions should be asked:

  1. Was there inequality of bargaining power?
  2. If so, would it be unfair or inequitable to enforce the release of claim against the weaker party?

Where a plaintiff signs a Release of Claim, the defendant will not be able to dismiss a claim the plaintiff subsequently makes using Rule 9-7 of the BC Supreme Court Civil Rules, if the evidence leads the court to conclude that the plaintiff was misled, even if unintentionally, into believing the document signed was releasing claims in areas that the plaintiff believed to be irrelevant.

This reasoning relies on the plea of non est factum (Latin for “not my deed”), a common law plea allowing a person who has signed a written document in ignorance of its character to argue that, notwithstanding the signature, it is not his or her deed. In other words, if the person’s mind does not go with the deed of signing, the release is not truly his or her deed.

Unconscionability and misrepresentation may also be successful grounds for rendering an otherwise valid Release of Claim invalid. Unconscionability can be established when the bargain was an unfair one and when there is an inequality of power in the bargaining positions. See Morrison v. Coast Finance Ltd., 1965 CanLII 493 (BCCA). Misrepresentations are untrue or misleading statements made during a negotiation. See Clancy v Linquist 1991 CanLII 795 (BCSC), per Scarth J.

In Mix v Cummings 1990 CanLII 1 (BCSC) [Mix], per Perry J., a general release discharging and releasing defendants from all claims, damages, and causes of action resulting, or that will result, from injuries received in an automobile accident was upheld on the following basis:

  1. the court found no mutual mistake of fact based on a misconception as to the seriousness of the injuries sustained in the accident;
  2. the release was not the product of an unconscionable or unfair bargain; and
  3. the plea of non est factum and want of consensus ad idem were unfounded in the circumstances.

The implication of the Mix judgment is that the presence of any of the above factors in a particular set of facts may be sufficient to invalidate a general release. Note, however, that the mere fact that a plaintiff’s injuries became more serious than he or she anticipated when signing a release will generally not invalidate the release.

F. Plaintiff's Duty to Mitigate

The plaintiff has a duty to mitigate his/her injuries after an accident. Generally, this means following your doctor’s instructions so that recovery from any injuries is as quick as possible. Failing to follow your doctor’s instructions can aggravate the injury and prolong recovery, thus increasing expenses. If this is the case, ICBC will argue that your failure to mitigate and speed up the recovery should decrease the amount of money to which you are entitled. This occurred in Rasmussen v Blower, 2014 BCSC 1697, , where the plaintiff was counselled to do physiotherapy and massage, but only attended one appointment of each. The trial judge stated that the plaintiff should have shown more perseverance and given time to allow the medical treatments to work. Due to the plaintiff’s failure to mitigate, the trial judge reduced the plaintiff’s award by 20%.

If you find that you are unable to afford certain treatments that are mandated, you should apply for coverage through Part 7 (no-fault) benefits (see Part III.C). A judge will not take a failure to apply for these benefits as an excuse for not continuing with treatment (Rasmussen v Blower).

G. Which Court has Jurisdiction?

1. Provincial Court, Small Claims Division

The Small Claims limit is $35,000 (effective June 1, 2017). Accordingly, claims for minor injuries may come within the jurisdiction of the Provincial Court. The procedure for bringing a case to trial in Small Claims Court is fully set out in this Manual in Chapter 20: Small Claims.

A claim commenced in Small Claims court can be transferred to Supreme Court on application by one of the parties or by a judge on his or her own initiative. Such an application should be made as early as possible for a greater chance of success. A judge at the settlement/trial conference, at trial, or after application by a party at any time, must transfer a claim to Supreme Court if he or she is satisfied that the monetary outcome of a claim (not including interest and expenses) may exceed $35,000. However, there may be exceptions. A claim will remain in the Small Claims Division if the claimant expressly chooses to abandon the amount over $35,000. For personal injury claims, a judge must consider medical or other reports filed or brought to the settlement/ trial conference by the parties before transferring the claim to the Supreme Court.

2. Civil Resolution Tribunal

Starting April 1, 2019, the Civil Resolution Tribunal (CRT) will make decisions on the following matters, when there is disagreement between a claimant and ICBC:

  • 1. classification of an injury as a minor injury;
  • 2. entitlement to receive accident benefits claimed;
  • 3. entitlement to receive accident benefits claimed; and
  • 4. decisions regarding who is at-fault in the crash and settlement amounts for all motor vehicle injury claims below a threshold that will not exceed $50,000.

For claims started before April 1, 2019, the upper limit of $5,000 applies and the claim must be made under the CRT’s small claims jurisdiction – this is not the same as the Small Claims Court.

The Civil Resolution Tribunal is designed to be accessible, economical, and without the need for legal representation. Claimants will still be able to hire a lawyer for most motor vehicle claims made on or after April 1, 2019, should they choose to do so. In some circumstances, the claimant may have to ask the CRT for permission to hire a lawyer. Decisions made by the Civil Resolution Tribunal can be reviewed by the Supreme Court of British Columbia.

For more details, Chapter 20 of the LSLAP Manual on the CRT and its procedures: "https://www.lslap.bc.ca/manual.html"

You can also find useful information on the CRT’s website: "https://civilresolutionbc.ca/how-the-crt-works/getting-started/motor-vehicle-accidents-and-injuries/"

3. Supreme Court of British Columbia

The Supreme Court of British Columbia is governed by the Supreme Court Civil Rules.

Actions involving the ICBC for damages over $50,000 (effective July 2, 2019) come within the jurisdiction of the Supreme Court of British Columbia (Accident Claims Regulations, s 7). The following represents a brief overview of the procedure for bringing a case to trial at this level.

A claim commenced in Supreme Court can be transferred to the Small Claims on application by one of the parties or by a judge on his or her own initiative. The judge must be satisfied that the monetary outcome of the claim will not exceed $50,000. Such an application should be made as early as possible for a greater chance of success, and where appropriate, may be accompanied by an express statement by the plaintiff abandoning any claim to damages in excess of $50,000.

a) Regular Trial

(1) The Notice of Civil Claim

A claim in the Supreme Court of British Columbia is initiated by filing a Notice of Civil Claim. The Notice of Civil Claim is served upon ICBC and the defendant(s). The IVR deals with situations where there are unknown drivers, hit and run accidents, etc. Where the defendant is an uninsured motorist, ICBC will receive the pleadings and file a defence.

(2) The Response to Civil Claim

After the claim has been served, ICBC will appoint defence counsel on behalf of the insured, or on behalf of itself if there is an uninsured motorist, and file a Response to Civil Claim.

(3) Reserving a Trial Date

After the Response to Civil Claim is filed, the parties will reserve a trial date. The trial date usually falls approximately two to two-and-a-half years ahead. The reason for this delay is that the court registry is overbooked. The delay is not usually a problem since it takes some time to organize the trial and it is often not until some time after the accident that the full extent of the claimant’s injuries can be determined. If additional time is required, when the trial date arrives, the trial can be adjourned by consent of the parties.

(4) The Examination for Discovery

Once the trial date is reserved, an Examination for Discovery may be held. Discovery of the plaintiff is initiated at the option of defence counsel and will typically occur six months to one year after the lawsuit is initiated. The Discovery will usually take one day but can last longer in certain cases. Prior to the Discovery, defence counsel will scrutinize the claimant’s statements to the adjuster. At the Discovery, the defence counsel will cross-examine the claimant about the manner in which the accident occurred and the extent of the claimant’s injuries.

Most cases are not settled until after the Discovery, since it is at this stage that defence counsel is able to assess the credibility and seriousness of the claim and make a determination respecting the sort of damages to which the claimant may be entitled.

b) Fast Track Litigation - Rule 15-1

This rule was introduced to provide an efficient and less expensive means of dealing with cases where the trial will last 3 days or less.

Fast track litigation may apply to an action if:

  1. The only claims in the action are for money, real property, builder's lien, and/or personal property and the total of the following amounts is $100,000 or less, exclusive of interest and costs:
    • a) the amount of any money claimed in the action by the plaintiff for pecuniary loss;
    • b) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss; and
    • c) the fair market value, as at the date the action is commenced, of all real property, all interests in real property, all personal property and all interests in personal property claimed in the action by the plaintiff.
  2. The trial of the action can be completed within 3 days
  3. The parties to the action consent, or
  4. The court, on its own motion or on the application of any party, so orders.

NOTE: The court is not prevented from awarding damages in excess of $100,000.

If this rule applies to an action,

  1. any party may file a notice of fast track action in Form 61;
  2. the filing party must serve all other parties on record with a copy; and
  3. the words “Subject to Rule 15-1” must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed or if the court so orders.
  • This rule ceases to apply if the court, on its own motion or on application of any party, so orders.
  • Parties to a fast track action can serve on another party a notice of application or an affidavit in support of an application ONLY after a case planning conference or a trial management conference has been conducted in relation to the action. This rule does not apply if:
    • a. The court orders the fast track action to cease;
    • b. If an application is made by a party, judge, or master to relieve a party from this requirement if
      • i. It is impracticable or unfair to require the party to comply; or
      • ii. The fast track litigation application is urgent;
    • c. If the action is scandalous, frivolous, or vexatious (as per Rule 9-5);
    • d. If the action will proceed by summary judgment or summary trial (Rule 9-6 and 9-7);
    • e. If an application is made to add, remove, or substitute a party; or
    • f. The parties consent.
  • Fast track action must be heard by the court without a jury.
  • Examinations for discovery of a party of record by all parties of record who are adverse in interest must not, in total, exceed 2 hours or any greater period to which the person to be examined consents, unless otherwise ordered by a court
  • All examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date, unless the court orders otherwise or the parties to the examination consent.
  • If a party to a fast track action applies for a trial date within 4 moths after the date on which this rules becomes applicable to that action, the registrar must set a date for the trial that is not later than 4 months after the application for a trial date.
  • Rule 11-8 is modified in a fast track action:
    • Rule 11-8 (3): Except as provided under this rule, a party to a vehicle action may tender, at trial, only the following as expert opinion evidence on the issue of damages arising from personal injury or death:
      • (a) expert opinion evidence of up to 3 experts;
      • (b) one report from each expert referred to in paragraph (a).
Rule 11-8 (3) (a) is to be read as if the reference to “3 experts” were a reference to “one expert”.
    • Rule 11-8 (8): In a vehicle action, only the following amounts may be allowed or awarded to a party as disbursements for expert opinion evidence on the issue of damages arising from personal injury or death:
      • (a)the amount incurred by the party for up to 3 expert reports, whether or not the reports were tendered at trial, provided that each report was
        • (i)served in accordance with these Supreme Court Civil Rules, and
        • (ii)prepared by a different expert;
      • (b)the amount incurred by the party for
        • (i)a report allowed under subrule (4) or (5),
        • (ii)a report referred to in subrule (6) or (7), or
        • (iii)a report prepared by an expert appointed by the court under Rule 11-5 (1);
      • (c)the amount incurred by the party for an expert to give testimony at trial in relation to a report, referred to in paragraph (a) or (b), that was prepared by the expert.
Rule 11-8 (8) (a) is to be read as follows: the amount incurred by the party for one expert report, whether or not the report was tendered at trial, provided that the report was served in accordance with these Supreme Civil Court Rules.

H. Damages

Claimants often have unrealistic expectations about the amount of damages they are likely to receive. Claimants should be cautious about listening to stories of awards told by relatives and friends as these stories may be exaggerated and/or may be missing crucial pieces of information.

1. How Damages are Assessed

The court will determine what damages a claimant is entitled to on the basis of precedent. It is, therefore, possible to project what the court will award by looking for similar cases. The judgments will outline the nature of the injuries sustained by the claimant and the court’s assessment of damages.

2. Heads of Damage

To understand an award, it is necessary to consider all the heads of damage. For example, a claimant who is a brain surgeon at the height of his or her career and who has a finger amputated might have a loss of prospective earnings claim in the millions and a relatively small claim for non-pecuniary losses. In contrast, a claimant who is retired and has a leg amputated may have a relatively low loss of prospective earnings claim but a relatively high claim for non-pecuniary damages.

The major heads of damage are as follows:

a) Non-pecuniary Damages

Non-pecuniary damages are awarded to compensate the claimant for pain and suffering, loss of enjoyment of life, loss of expectation of life, etc. In 1978, the Supreme Court of Canada placed a cap of $100,000 on awards for non-pecuniary damages in Andrews v Grand & Toy Alberta Ltd, 1978 CanLII 1 (SCC). This means that the limit for this head of damages after adjusting for inflation, is now about $380,000.

b) Loss of Prospective Earnings

Loss of prospective earnings is the capitalized value of the claimant’s loss of income from the time of the accident to the claimant’s projected date of retirement. The capitalization rate will be calculated by using present rates of return on long-term investments, and an allowance will be made for the effects of future inflation. In determining the value of prospective earnings, the claimant’s earning capacity over his or her working life, prior to the accident, will be evaluated. In a claim for the capitalized value of lost prospective earnings, the defendant will seek to reduce that amount by introducing evidence of future contingencies.

c) Cost of Future Care

Cost of future care is the cost of the claimant’s future care over his or her expected life span. As with loss of prospective earnings, cost of future care is capitalized and reduced for contingencies.

d) Special Damages

Special damages compensate the claimant for expenses like drugs, crutches, orthopaedic shoes, and artificial limbs. Claimants should keep every document, receipt and bill that relates to their accident. The claimant must have the originals to be reimbursed.

3. Lump Sum Awards and Structured Settlements

Damages can be paid in a lump sum or through a structured settlement. A structured settlement is an arrangement where the damages to which a claimant is entitled are left under the control of the insurer. The insurer enters an annuity contract with the claimant and agrees to pay that claimant a certain income for a set period of time. Structured settlements are often recommended in infant cases and cases where the claimant has a mental disability or infirmity. In rare cases, a court imposes a structured settlement.

Structured settlements are worth considering if the amount of the principal settlement exceeds $50,000 to $100,000. These arrangements offer advantages for the claimant and the insurer. One advantage for the claimant is that the interest gained on that settlement is not taxable. The claimant, therefore, gets much more money than if he or she took the lump sum and invested it. Another advantage is that the claimant does not suddenly come into a large sum of money and run the risk of spending it foolishly. The advantage to the insurer is that the Corporation doesn’t have to pay out all of the money at once and is entitled to derive income from it.

Structured settlements can be set up through a number of licensed dealers in British Columbia. Various options are available. For example, the claimant could receive a lump sum every five years, an indexed monthly sum, a monthly sum that decreases over the years, or a monthly sum and periodic lump sum payments. Most dealers do not charge for providing projections of the various income streams and the costs associated with them.

I. Costs

In addition to the claim for damages, the claimant should claim costs. Courts award costs as crude compensation for the costs of pursuing the claim. Costs are calculated or assessed on the basis of a tariff set out in the Supreme Court Act, RSBC 1996, c 443. They do not fully compensate the claimant for the cost of pursuing the litigation but go some distance toward paying for the disbursements and a portion of the legal fees charged by the lawyer. Claimants in Small Claims court can claim “expenses” but not counsel fees.

J. Reaching a Settlement Before Trial

1. Negotiation

Following the discovery, defence counsel will write a detailed reporting letter to the adjuster making recommendations about a settlement. The adjuster will present the defence counsel’s recommendations to ICBC, which may or may not accept them. Upon reply, defence counsel will inform the claimant’s counsel of ICBC's position. If the claimant is unwilling to settle, the claimant’s counsel may contact the adjuster and submit a counter-offer. This process will likely be repeated several times. These types of negotiations are expensive, time consuming, slow, and frustrating.

2. Mediation

The Notice to Mediate is a new process by which any party to a motor vehicle action in Supreme Court may compel all other parties to the action to mediate the matters in dispute (Notice to Mediate Regulation, BC Reg 127/98, s 2 [NMR]). The Notice to Mediate process does not provide a blanket mechanism to compel parties into mediation. Rather, this process provides institutional support for mediation in the context of motor vehicle actions.

The party that wishes to initiate mediation delivers a Notice to Mediate to all other parties in the action no earlier than 60 days after the pleading period, and no later than 77 days before the date set for the start of the trial. Within 10 days after the Notice has been delivered to all parties, the parties must jointly agree upon and appoint a mediator (NMR, s 6). The mediation must occur within 60 days of the mediator’s appointment, unless all parties agree in writing to a later date (NMR, s 5). If one party fails to comply with a provision of the NMR, any of the other parties may file a Declaration of Default with the court (NMR, s 11). If this occurs, the court has a wide range of powers, such as staying the action until the defaulting party attends mediation, or making such orders as to costs that the court considers appropriate.

The parties will share the cost of the mediator equally, unless the parties agree on some other cost sharing arrangement (NMR, s 9(2)(b)). The hourly rates of mediators vary, and this is a factor to be considered in selecting a mediator. The mediator will probably spend about one hour preparing for the mediation, and the mediation session will last about three hours.

3. ICBC’s Obligations to the Insured

ICBC has an obligation to protect the insured by making an effort to settle the claim in the limits of the amounts of coverage. Insurers are under an obligation to consider the interests of their insured in deciding whether to settle a claim. The insurer assumes by contract the power of deciding whether to settle and it must exercise that power in good faith.

In Fredrikson v Insurance Corporation British Columbia, 1990 CanLII 3814 (BCSC), Esson CJ. summarizes the law respecting the insurer’s duty to its insureds in certain areas discussed therein. In this particular case, ICBC acted in good faith, and in a fair and open manner, followed the course the insured wished to take. Among the points raised in the judgment are:

  • i) the exclusive discretionary power of ICBC to settle liability claims places the insured at the mercy of the insurer
  • ii) this vulnerability imposes duties on the insurer to act in good faith and deal fairly, and to not act contrary to the interests of the insured, or, at least, to fully advise the insured of its intention to do so;
  • iii) the insurer’s duty to defend includes the obligation to defend by all lawful means the amount of any judgment awarded against the insured.

See also Shea v Manitoba Public Insurance Corporation 1991 CanLII 616 (BCSC), per Finch J.

4. Formal Offers to Settle and Cost Consequences

Under Rule 9-1 of the Supreme Court Rules, a plaintiff or defendant who refuses a reasonable offer to settle may be penalized for needlessly dragging out the litigation.

NOTE: An offer to settle does not expire due to a counter offer being made.

For Rule 9-1 to be engaged, a formal offer to settle must be made in writing, and delivered to all parties of record, and must contain the language:

  • "The ............[party(ies)]............, ............[name(s) of the party(ies)]............, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."

Such an offer to settle must not be disclosed to the court/jury or set out in any proceeding until all issues in the proceeding, other than costs, have been determined. Also, an offer to settle does not constitute an admission.

If a plaintiff accepts an offer, the sum of which falls in the jurisdiction of the Provincial Court (Small Claims Act), they are not entitled to costs, other than disbursements. However, this rule can be overridden if the court finds a sufficient reason for the proceeding taking place in the Supreme Court.

The court, in assessing costs has broad discretion to consider a refusal to settle in making an order with respect to costs. The court may consider:

  • whether the offer ought to have reasonably been accepted;
  • relationship between the terms of settlement and the final judgment of the court;
  • relative financial circumstances of the parties; and/or
  • any other factor the court considers appropriate.

Based on such considerations, the court may do one or more of the following:

  • if it determines that the offer ought reasonably to have been accepted, then the court may deprive a party of costs, to which it would otherwise be entitled, for steps taken after the date of service or delivery of the offer to settle;
  • award double costs for all or some of the steps taken in the proceeding after the delivery date of the formal offer;
  • award a party costs for all or some of the steps taken in the proceeding after the delivery date of the formal offer which that party would be entitled to had the offer not been made;
  • Where the plaintiff refuses an offer to settle from the defendant, and the eventual judgement is no greater than the offer, the court may award the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of the offer.

The rules penalizing a plaintiff for overreaching the true value of a claim can be catastrophic, and can visit financial ruin upon a claimant who does not exercise a sober and realistic assessment of his or her claim as he or she proceeds into Supreme Court. It is entirely within the realm of possibility that a claimant who refuses to accept an offer of $30,000.00, after judgment for $29,000.00 (i.e. lower than the offer to settle) would finish the day, after paying the insurer’s costs and disbursements, and his or her own disbursements, with nothing or less than nothing: a debt to the insurer and his or her own lawyer for disbursements.

It should be stressed to clients that the lawyer who is hired to do a personal injury case is supposed to be objective, realistic, and not inclined to simply tell the client what they want to hear. When a lawyer talks about the risks of litigation, this penalty for misjudging the value of a case is one of the most important risks to consider.

v • d • e
 
Chapters 8-14
Employment Insurance  · Employment Law  · Creditors and Debtors  · Consumer Protection  · Auto Insurance (ICBC)  · Motor Vehicle Law  · Mental Health Law
Chapter Eight:
Employment Insurance
Chapter Nine:
Employment Law
Chapter Ten:
Creditors' Remedies and Debtors' Assistance
Chapter Eleven:
Consumer Protection
Chapter Twelve:
Auto Insurance (ICBC)
Chapter Thirteen:
Motor Vehicle Law
Chapter Fourteen:
Mental Health Law
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


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