There is a common misconception that ICBC must advise you of limitation periods applicable to your ICBC claim. Although some adjusters will do so, they are under no legal obligation to do so, which can result in serious injustices to claimants who simply do not know what to do, or are unaware of limitation periods, and the effect that missing one can have on their ICBC claims.

 

 

 

In Tolentino v. Gill, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for pain and suffering, as well as other forms of damages. The Plaintiff was unrepresented, and had some discussions with the ICBC adjuster. The Plaintiff was unaware of the two year limitation period in which a lawsuit had to be commenced, and was not informed of this by the ICBC adjuster. By the time the Plaintiff contacted the ICBC adjuster again, it was too late to bring an action. The Plaintiff still did file the necessary legal documentation, however after the fact, and the Plaintiff’s ICBC claim would eventually be dismissed. The Court had some harsh words for the ICBC adjuster in question.

 

 

 

[23]        It is indeed unfortunate that Ms. Brunac-White made no effort to contact Mr. Tolentino before the limitation period expired. It would have been a simple task that could have served the interests of both parties. However, as the plaintiff concedes, ICBC as the insurer has no duty to advise him about the limitation period. Silence or inaction may be considered a representation only where the representor owes a legal duty to the representee to disclose something or take certain steps: Ryan v Moore, 2005 SCC 38…

 

 

 

[29]        I wish to add, however, that I was disturbed by the adjuster’s approach in this case. She sought to rely on an “agreement” with the plaintiff about the next steps but when he did not contact her after several months, she ought to have considered that there could have been a misunderstanding. While she may not have been successful in making contact with the plaintiff given his history, her failure to make any attempt to contact him before the limitation period expired was in my view unreasonable. She had a telephone number and could have left him a message. Although she did not have a legal duty to do so, given her knowledge of the claim, this would have been a more reasonable and fair approach.

In Field v. Harvey, the Plaintiff was injured in a motor vehicle accident, but chose not to retain the services of a lawyer. There were some discussions with respect to settlement, including a “without prejudice” letter from ICBC with respect to payment for massage therapy costs, which ICBC stated would be discussed at the time of settlement. The Plaintiff did not settle her matter with ICBC, and eventually commenced formal legal proceedings, but not until after the two year mark from the date of the motor vehicle accident. The Plaintiff brought a court application, arguing that ICBC should be estopped (prevented) from relying on the limitation period because of the letter discussing settlement. The Court disallowed the Plaintiff’s application, meaning that, barring an appeal, the Plaintiff’s claim for damages would be lost forever.

 

[27]         Finally, the defendants argue that ICBC does not have any duty, statutory or otherwise, to inform potential claimants of the specific date on which the right to commence an action upon a claim will expire.

 

[30]         It is clear from the case law that ICBC was under no obligation to warn the plaintiff that the limitation period had commenced, was not postponed, and would soon expire. It also clear that ICBC abided by the “preferred course” of action, as articulated by Huddart J.A. in Balzer, by including the following notification in their correspondence with the plaintiff:

 

Nothing herein contained is or shall be construed as either an admission of liability on the part of the insured or a waiver or extension of any applicable limitation period.

 

It is evident that the plaintiff received this notification, given her handwritten reply on the letter in question and this statement should have alerted the plaintiff to the existence of the limitation period.

 

[35]         To allow the plaintiff to defeat a limitation period on the basis of an estoppel would arguably render the applicable portion of the Limitation Act meaningless. However, on the facts of this case I do not need to decide that issue. As, in my view, even if the doctrine of estoppel is available, the criteria necessary in order to satisfy the three variations of estoppel advanced by the plaintiff have not been met.

 

[36]         The plaintiff relies solely on the December 15, 2008, letter for her argument that the defence of estoppel can be applied as a defence to the provisions of the Limitation Act. That letter explicitly states: “[n]othing herein contained is or shall be construed as either an admission of liability on the part of the insured or a waiver or extension of any applicable limitation period.”

 

[37]         A reasonable interpretation of this letter in no way evidences a representation or promise, by convention or otherwise, to waive or extend the applicable limitation period. In my opinion, it does quite the opposite by warning the plaintiff that, although all claims are negotiated toward the goal of settlement, time is still running.

 

In Morris v Doe, the Plaintiff’s hit and run ICBC injury claim under Section 24 of the Insurance (Vehicle) Actwas dismissed for failure to make all reasonable efforts to ascertain the identity of the other motorist. With respect to the issue of costs, counsel for the Plaintiff argued that any award would be unjust, as ICBC had failed to advise the Plaintiff of the proper way to go about her hit and run ICBC injury claim. The Court disagreed, commenting that:

 

[8] During his oral submissions, counsel for the plaintiff argued that costs ought not to be awarded against the plaintiff as the defendant, the Insurance Corporation of British Columbia (“ICBC”), through its adjusters ought to have advised the plaintiff of the importance of immediately obtaining legal advice on the steps she needed to take to satisfy the unidentified motorist provisions of the Act.  Counsel appears to argue that it is this failure and circumstance connected with the case that renders it manifestly unfair to award costs against the plaintiff in this case

 

[9]  No statutory authority or case authority was provided to support the proposition that ICBC through its employees has a duty to provide a potential plaintiff with a warning that it is in their interests to obtain legal advice.  Indeed, counsel recognized and seemed to suggest that the law, although not there yet, ought to be moving in that direction.  Thus, counsel for the plaintiff seeks to place a duty on ICBC adjusters to give a form of right to counsel advice akin to that contained in s. 10(b) of the Canadian Charter of Rights and Freedoms, modified to fit the circumstances of the civil context of motor vehicle actions and particularly cases involving the unidentified motorist scenario. 

 

[51] It is clear from the decisions cited in my original judgment dismissing the action that ICBC has no obligation to advise a plaintiff of the nature of the steps they need to take in order to satisfy the court they have taken all necessary and reasonable steps to ascertain the identity of the offending unidentified driver.

 

[52] I do not understand the jurisprudence or the governing statutory provisions to place any sort of positive obligation on ICBC through its employees to either advise a plaintiff of the steps they must take to ascertain an unknown driver’s identity or of the need to obtain independent legal advice on this provision.

 

[53] I cannot accede to counsel’s suggestion that ICBC or an insurer has a positive obligation to advise an insured of the need to obtain legal advice.  To do so would fundamentally change the nature of the contractual relationship between the insurer and insured and place the insurer in a position of quasi-authority requiring it to provide an element of legal advice, something adjusters and claims managers may not be well suited to do and may create a host of unanticipated and unforeseen consequences.

 

[54] While the comments of Barrow J. in Tessier are compelling as to the fairness that at least notifying a plaintiff of the provisions of the Act would appear to create, the fact of the matter is that there is no statutory authority mandating that ICBC advise or alert a potential plaintiff of the provisions of s. 24(5) of the Act.

 

[55] Moreover, the jurisprudence since 2003, and most recently re-stated in Wah Fai Plumbing, establishes that denying a successful litigant its costs based on pre-litigation conduct or for reasons that appear to impose quasi-liability on the successful party and sanction non-actionable conduct is not an appropriate or principled application of the costs rules.

 

[56] I must say again that, in this case, I have a great deal of sympathy for the unsuccessful plaintiff, particularly in light of ICBC’s failure to set her straight at the outset when it was apparent she did not understand the process.  However, by the time the statement of defence was issued in October 2007, it would have been clear to the plaintiff and her counsel that her case was in peril, or definitely not nearly as strong as initially believed.