When a person is injured in British Columbia in a hit and run accident, and the identity of the driver and/or owner cannot be ascertained, then the Plaintiff can name ICBC as a nominal Defendant when commencing litigation. Should the identity of the driver and/or owner later be ascertained, the Plaintiff can then make an application to substitute such parties as Defendants.
In Turnbull v. ICBC, the Plaintiff was injured in a hit and run accident in the parking lot of his business. He attempted to record the licence plate number of the offending vehicle, however he maintains that the ink in his pen ran dry. The Plaintiff believe that he was struck by a customer of the store, and maintained that his was unable to secure the identity of the person who struck him from his employer. ICBC eventually denied the claim, maintaining that the Plaintiff had not provided any particulars of the Defendant driver and/or owner. Further attempts were made by the Plaintiff after this point, but again proved to be unsuccessful.
Counsel for the Plaintiff filed the Statement of Claim (nowadays called a Notice of Civil Claim) within the two year limitation period, naming ICBC, John Doe #1, and John Doe #2 as Defendants. The Plaintiff was eventually able to identify the driver and owner of the vehicle that struck him, and attempted to substitute them as Defendants in the action. The Court denied the request, commenting :
[21] In all such cases, the plaintiff cannot be faulted for the delay and the overall interests of justice outweigh the prejudice, if any, to the intended defendant. That is not the situation which I am asked to rule on in the case before me.
[22] In the present case, the plaintiff knew of the existence of documentation which would have identified potential defendants at the time of and at all times following the alleged incident. The plaintiff retained counsel shortly after the incident. The plaintiff and his counsel were aware well before the expiry of the limitation period that identification of the vehicle and driver was a central and important issue in the claim. No application was made during the limitation period, or even during the year following the expiry of the limitation period, to pursue the documents which the plaintiff knew existed and knew might well identify the vehicle and the driver.
[23] In short the plaintiff, and the plaintiff alone, bears the responsibility for the failure to identify potential defendants in a timely fashion and certainly within two years of the incident plus one year to serve. In such circumstances, if limitation periods are to have any meaning and effect in our system, the interests of justice and the potential prejudice to the intended defendant outweigh the interests of the plaintiff.
