There is a common misconception that a victim of a hit and run accident can simply report the matter to ICBC and the police, and then do nothing else.

 

This is, in fact, not the case, and following such a path will likely result in ICBC and/or a court dismissing your claim. Under British Columbia law, it is incumbent upon victims of hit and run accidents to make “reasonable efforts” to ascertain the identity of the driver and/or owner of the vehicle that caused the hit and run accident. It is important to bear in mind that you do not have to actually find the driver and/or owner of the offending vehicle, but that you have made “reasonable efforts” to do so. Whether or not a claimant has made “reasonable efforts” will depend on the circumstances of each case.

 

In addition to notifying ICBC and the police of the circumstances of the hit and run accident, “reasonable efforts” include placing posters at the scene of the accident asking for witnesses, placing online ads asking for witnesses, placing an ad in the newspaper, speaking to residents in the area of the accident, and speaking to local merchants and businesses near the area of the accident.

 

In Ghuman v. ICBC, the Plaintiff sustained injuries after being involved in a hit and run accident, with the offending driver fleeing the scene shortly after the accident. The Plaintiff commenced formal legal proceedings, naming ICBC as a nominal Defendant.

 

Steps taken by the Plaintiff to ascertain the identity of the driver and/or owner of the other vehicle included notifying ICBC, notifying the police, posting flyers at the scene, and running an ad in the newspaper.

 

ICBC’S lawyer argued that the Plaintiff did not make “reasonable efforts” to ascertain the identity of the other driver and/or owner, as he did not follow up with the police after initially reporting the accident, and as he did not speak with local businesses in the area.

 

In ruling that the Plaintiff did indeed make “reasonable efforts”, thereby satisfying section 24(5) of the Insurance (Vehicle) Act, the Court commented,

 

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

 

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

 

In Parmar Estate v. British Columbia, the Plaintiffs were killed in a hit and run accident, with the estate consequently suing for damages. Although the Notice of Civil Claim was served and filed within the appropriate limitation periods, the Plaintiffs did not notify ICBC within six months of the accident of their intention to bring a hit and run claim, which is a requirement under Section 24(2) of the Insurance (Vehicle) Act.

 

By way of a Rule 9-6 Summary Judgment application, ICBC’S sought to have the Plaintiffs’ claims dismissed for not complying with the Section 24(2) notice requirement, nor the “reasonable efforts” obligation under Section 24(5) of the Insurance (Vehicle) Act.

 

Counsel for the Plaintiffs argued that Section 24(2) is not absolute, and must be read in conjunction with Section 24(3), which provides that after an action referred to in Section 24(1) has been commenced, it is alleged that injury, death, or property damage was caused or contributed to by an unknown motorist, the court can add ICBC as a nominal defendant.

 

ICBC’S lawyer argued that, as the proper notice under Section 24(2) was not given, there was no genuine issue to be tried. As a result, the Plaintiffs’ claims should be dismissed.

 

The Court dismissed the Plaintiffs’ claims for failing to comply with the Section 24(2) notice requirement, commenting that :

 

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

 

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

 

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

 

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

In Lapointe v. John Doe and ICBC, the Plaintiff was injured in a hit and run accident, and consequently advanced an ICBC claim for pain and suffering, as well as various other types of damages. As the identity of the owner and driver were unascertainable, ICBC was named as a nominal Defendant.

 

At one point during the litigation proceedings, counsel for the Plaintiff brought an application for summary judgement pursuant to Rule 9-6 to strike the part of the Defendant’s Response that relied on the Section 24 “reasonable efforts” defence in the Insurance (Vehicle) Act. This defence is what is commonly argued by ICBC’S lawyers in hit and run situations, where it is alleged that the Plaintiff did not make all “reasonable efforts” to ascertain the identity of the owner and/or driver of the other vehicle, by doing such things as notifying ICBC, notifying the police, placing posters at the scene looking for witnesses, placing online ads looking for witnesses, talking to residents and merchants in the area of the accident, etc…

 

The Master ruled in favor of the Plaintiff, determining that the Plaintiff had complied with Section 24(5) of the Insurance (Vehicle) Act and, as such, there was no genuine issue to be decided at trial in this regard. The relevant part of the Defendant’s Response was ordered by the Master to be struck.

 

ICBC’S lawyer appealed to the Supreme Court, citing the Court of Appeal case of Century Services v. Leroy, which was in fact handed down one day before the decision of the Master, but which was not referenced or argued before the Master. The case stood for the proposition that Rule 9-6 could not be used to render a decision on a defence when such a decision would not result in a judgment on the case as a whole, or else a discrete portion of the claim.

The Court allowed the appeal of the Master’s decision.

 

[7]     ICBC argues that this principle is applicable here; what the Master decided was an issue and not a claim. The plaintiff says the present case stands on a different footing because the Master’s judgment was determinative of ICBC’s liability to pay a future judgment which might be rendered against the unidentified driver or owner. The decision was, therefore, determinative of a claim.

 

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

 

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

In Fitger v. John Doe and ICBC, the Plaintiff was injured in a hit and run collision, and consequently brought an ICBC claim for damages for pain and suffering, as well as other heads of damages.

 

The Plaintiff, in the early stages after the accident and before retaining counsel, had discussions with the adjuster from ICBC assigned to his file. As is often the case, the adjuster did not fully advise the Plaintiff of his obligations as a victim of a hit and run accident. Such obligations include attempting to obtain the licence plate of the other vehicle, reporting the matter to the police, placing posters at the scene of the accident looking for witnesses, placing online ads looking for witnesses, and speaking to residents and merchants in the area. The adjuster informed the Plaintiff to put up signs, which the Plaintiff did. Communications between the Plaintiff and the adjuster continued, however approximately a year and a half after the accident, the adjuster advised the Plaintiff that he had not taken sufficient steps to maintain his claim.

 

The Plaintiff retained counsel. The Plaintiff detailed his communications with the adjuster in a sworn Affidavit, and maintained that never at any point was he advised of his obligations under S. 24(5) of the Insurance (Vehicle) Act to make reasonable efforts to ascertain the identity of the driver and/or owner of the other vehicle.

 

Counsel for the Plaintiff argued that ICBC should be estopped from relying on the S. 24(5) defence by virtue of how they conducted his file with him, and that it would be unfair of them to rely on it.

 

The Court was highly critical of ICBC’S policy of not advising claimants of their obligations in a hit and run situation, however nevertheless ruled that the doctrine of estoppel was not applicable to the circumstances of the case at bar.

 

The decision of the Court highlights the importance of claimants in a hit and run situation of contacting counsel before talking to ICBC. Special rules apply in hit and situations, which the vast majority of claimants are simply unaware of.

 

[10] Ignorance of the provisions of s.24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached …

 

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

 

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

In Li v. ICBC, the Plaintiff was rear ended by another vehicle, and consequently brought an ICBC for pain and suffering, as well as other forms of damages. The Plaintiff went to talk to the other driver, who told her to pull over to the side of the road. As she was in the process of doing so, the other driver fled the scene. The Plaintiff did not obtain the other driver’s information or licence plate number before the other driver fled the scene. The Plaintiff failed to take other steps as well to ascertain the identity of the other driver. ICBC’S lawyer argued that the claim should be dismissed, as the Plaintiff did not make reasonable efforts to ascertain the identity of the other driver. The claim was ultimately dismissed, with the Court also commenting on the issue of whether or not ICBC has an obligation to warn hit and run victims of their legal obligations. The Court ruled that ICBC is under no legal obligation to do so.

 

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

 

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

 

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

 

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

 

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

One of the requirements of an ICBC hit and run injury claim is that the hit and run accident must have occurred on a “highway”. Under the Motor Vehicle Act, “highway” is defined as follows :

 

“highway” includes

 

(a) every highway within the meaning of the Transportation Act,

(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and

(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,

but does not include an industrial road;

 

In Nadeau v. Okanagan Urban Youth Cultural Association et al. , the Plaintiff was injured in a hit and run accident when he was attending a music concert at an outdoor venue located on an Indian Reserve. The venue was essentially an open field, with some fencing and a big open state. Access to the venue was from a public road onto a dirt road, which leads to an entrance where tickets are sold. People would then drive their vehicles through this entrance into a large open field which was used as a parking lot. One of the issues given judicial consideration was whether or not the accident occurred on a “highway” as defined in the applicable legislation. The Plaintiff argued that it did, however ICBC’S lawyer argued that it did not, saying that the accident occurred at a private place to which the public did not have access, or else was not invited for the purposes of parking. The Court would eventually rule that the accident did in fact occur on a “highway”.

 

[115]     The area has been described as a field and physically it was a field. It is private property. However, it was being used as a parking lot when the accident occurred. At some point during the concert, there was some control over who had access to this area. However, that was not consistent throughout the concert, and I am satisfied that by the evening of July 1, this secondary area was no longer being controlled or restricted by the organizers or by security. The public had access to this area for the purposes of parking. The primary parking for the concert goers was in the general parking area, but there was no longer any control or restrictions on parking in the secondary area. Therefore, I am satisfied that for several hours before and, certainly at the time of the accident, this was a place in which the public had access for the purposes of parking. The public at this time included concert goers who might proceed through this secondary gate and clearly included anyone who was there in order to carry on the business of putting on or assisting in some way with the concert, or their friends or supporters. The people that had access at that time was a broad enough group to fall within the definition of the public in s. 1(c) of the Motor Vehicle Act.

 

Although victims of hit and run ICBC claims are expected to make “reasonable efforts” to ascertain the identity of the offending motorist or motorists, sometimes a failure to take certain steps will be excused by the Court if taking such a step would not have made any difference anyways.

 

In Akbari v. ICBC, the Plaintiff was involved in a hit and run accident, and brought an ICBC claim for damages. ICBC’S lawyer argued that the Plaintiff did not make the necessary “reasonable efforts” to ascertain the identity of the other motorist involved, such as staking out the intersection to see if the vehicle was there again, and talking to residents who lived nearby. The Court ruled that such efforts would have been fruitless, and rejected ICBC’S lawyer’s argument.

 

[65]         Counsel for the defendant suggested to Mr. Akbari that he should have canvassed the residents of the townhouse complex located near the intersection to search for possible witnesses, but I consider that would have been a fool’s errand.  The photographs of the scene indicate that the townhouse complex is some distance off the roadway and that it is highly unlikely that anyone in the townhouse complex would have been able to see anything happening in the intersection, particularly late at night, when it was dark and raining.  The resident who did call to report the collision only did so because she heard the sound of the crash.

 

[66]         Counsel also suggested that Mr. Akbari could have staked out the intersection to see if he could spot the vehicle that crossed his path.  Again, this would have been fruitless, I conclude, as neither he nor Mr. Perez was able to recall anything more specific than the fact that the other vehicle was a light-colored small car.

 

[67]         To summarize, I am satisfied that it is more probable than not that the accident was caused by the negligent actions of an unidentified driver who entered the intersection from 84^th Avenue against a red light; and drove across Nordel, cutting off Mr. Akbari’s vehicle when it was so close to the intersection as to pose an immediate hazard.  I am satisfied on the balance of probabilities that Mr. Akbari did not fail to meet the standard of care required of a reasonably prudent motorist when he swerved to avoid colliding with the vehicle crossing his path.

 

[68]         I am also satisfied that Mr. Akbari made all reasonable efforts to ascertain the identity of the unknown driver; and that the unknown driver’s identity is not ascertainable.

 

In McStravick v. Metzler, the Plaintiffs were injured in a hit and run accident, and brought ICBC claims for their injuries. ICBC was named as a nominal Defendant in the initiating legal documentation. Shortly before trial, the identity of the offending motorist became known, and the lawyer for the Plaintiff sought to substitute this person in place of ICBC as a Defendant. This was opposed by the individual, and by ICBC. The Court ordered the substitution.

 

[53]         I would observe at the outset that s. 24(6) of the Insurance (Vehicle) Act is mandatory in nature.  If the identity of the driver is ascertained then that person must be added as a defendant in substitution for ICBC.  The factors applicable to cases where parties are being added under the Supreme Court Civil Rules therefore have no application: Tse v. ICBC (1996), 24 B.C.L.R. (3d) 394 (S.C.).

 

[55]         The mandatory language of the section also limits, and probably eliminates, any scope for the application of the equitable principle of estoppel insofar as applying the estoppel principle would operate to defeat the intent and effect of the section.

 

[56]         Even if there might still be some room for estoppel to operate, I am not satisfied that estoppel has been made out on the facts of this case.  Ms. Sidwell submits that as a result of the “shared assumption” of all counsel that she was not the unknown driver, she ceased being represented by counsel and did not take part in the trial.  What that submission fails to address is the fact that (1) the substitution application can be made at any time prior to judgment being granted, and (2) her interests were represented throughout by ICBC as nominal defendant.  As to the former, since s. 24(6) allows for a substitution application to be made at any time prior to judgment, a trial might well be completed before an application is made and with no hint of it beforehand.  Here, Ms. Sidwell had two years or more of advance notice and she had representation by counsel during that time.  In addition to her own counsel, counsel for ICBC represented the interests of the unknown driver, whoever that might have been, and thus in some respects at least she had two lawyers representing her interests until shortly before trial.

 

[57]         Ms. Sidwell complains that she was deprived of taking part in the trial, but until she was made a party she would have had no standing to take part.  She points to no prejudice associated with the fact that her interests, at least her interests in a general sense, were represented by counsel for ICBC instead of her own counsel.

In Springer v. Kee, the Plaintiff was injured in a motor vehicle accident, but was unable to ascertain the identity of the other driver at the scene. The Plaintiff reported the accident to ICBC and the police, however did not take any further steps than this to ascertain the identity of the other driver. The Plaintiff then brought an ICBC claim for damages arising from the hit and run accident, however ICBC’S lawyer opposed it, arguing that the Plaintiff did not make reasonable efforts to ascertain the identity of the other driver. The Court agreed, and dismissed the lawsuit,  however was critical of how ICBC handled the situation, and suggested that the outcome of the case may have been different had estoppel been plead.

 

[92] I accept the view that ICBC was not obliged to warn the plaintiff of his ongoing obligations in the immediate aftermath of his reporting the accident to ICBC; ICBC was, in my view, remiss in their duty to inform the injured party about the steps necessary to perfect his claim, particularly in light of the conversations with the adjuster indicating that his claim had been accepted by the corporation. It seems to me that ICBC’s communications with an injured person ought to include a warning about the prerequisites of the claim against an unidentified motorist.

 

[93] In my view, although not obliged to advise people of their obligations under s. 24(5), ICBC ought to recognize the risks that laypeople will rely on remarks made by adjusters suggesting settlements can be expected without warning that the claim will be denied if s. 24(5) is not complied with. Regrettably, I also note that the “Helping You with Your Hit and Run Claim” pamphlet published by ICBC that was given to the plaintiff by the adjuster does not mention the implications of s. 24(5) of the Act.

 

[94] Counsel for the plaintiff mentioned the concept of waiver, but did not argue this as a case of estoppel and the pleadings do not advance any claim against ICBC except as nominal defendant.

 

[95] Section 24(5) does not permit me to consider the actions of ICBC in the assessment of the plaintiff’s obligations under the Act. That may be the subject of a waiver or estoppel, which is outside of the scope of this application.

In Nicholls v ICBC, the British Columbia Court of Appeal addressed the issue of “reasonable efforts”, rejecting ICBC’S lawyer’s argument for expanded obligations of hit and run victims.

 

[31]             Thus, the only qualification on the requirement of “all reasonable efforts” in s. 24(5), is the subjective aspect of the test that requires the “position and condition” of the plaintiff to be considered in determining what efforts are reasonable in the circumstances. In all cases, the single standard to be met is one of reasonableness.

 

[32]           In sum, I am not persuaded that the chambers judge erred in describing the test in s. 24(5) as one of reasonableness. In citing the statutory provision he was alive to the requirement on the respondent to demonstrate that “all reasonable efforts” had been made in the circumstances to ascertain the identity of the unknown tortfeasor. He then determined whether, in the circumstances of this case, considering the respondent’s subjective circumstances at the time of the accident, and based on a cost-benefit analysis of his efforts, or lack thereof, after the accident, the respondent had met the standard required by the provision. In my view, in the circumstances of this case, he did not err in adopting this approach to the issue.