In GG v ICBC, the Arbitrator also discussed the power of an arbitrator to make liability findings, when such findings had not previously been the subject of a liability trial.
71. As I have noted previously, the scheme of UMP compensation in British Columbia, in the absence of agreement between ICBC and a claimant, is premised upon an underlying tort judgement. Sections 148.2(1) and (6) cannot mean that either party can arbitrarily and unilaterally have any issue relating to legal entitlement to recover damages determined in an arbitration because in those instances where there is a judgement int he underlying tort action, legal entitlement to recover damages will have been judicially decided. Section 148.2(6) must at least be intended to give an arbitrator authority to determine issues of legal entitlement including contributory negligence where there is an agreement by the parties that the issue should be determined in the arbitration. Absent the presence of collusion or fraud in obtaining judgement in a foreign jurisdiction, I think that the scheme of UMP compensation presumes that for accidents in foreign jurisdictions, issues of legal liability including contributory negligence are conclusively determined in a judgement of the foreign court. I do not think that Section 148.2(6) entitles either a claimant or ICBC to “relitigate” an issue of liability or contributory negligence where there has been a judicial determination om the merits of the issue in a tort action in the jurisdiction where the accident occurred….I do not think a claimant who has succeeded in obtaining a judgement after trial in a foreign jurisdiction where such potential defences were not alleged, is exposed to have such defences raised for the first time in a subsequent UMP arbitration. If the claimant here is entitled to pursue his UMP claim, notwithstanding the entered Consent Dismissal Order in the Washington action, it seems to me that the actual Order cannot be regarded as determinative of anything and is virtually irrelevant. In that circumstance, I think Section 148.2(6) permits ICBC to raise the issue of contributory negligence, although whether the issue could be heard on its merits would be subject to full argument on the issue of whether, under Washington Law which is determinative as to issues of liability, formal admissions of fault in the pleadings constitute a conclusive determination of liability.