In Lapointe v. John Doe, the Plaintiff was injured in a hit and run accident, and commenced legal proceedings against ICBC, naming them as a nominal Defendant. Prior to trial, counsel for the Plaintiff brought an application for summary judgment on liability under Rule 9-6 of the Rules of Court, which included an application to strike the portion of the Defendant’s Response relying on the Section 24 defence. This is what is known as the “reasonable efforts” defence, wherein ICBC typically argues that the Plaintiff did not make “reasonable efforts” to ascertain the identity of the unknown driver/owner. The Master ruled that the Plaintiff had in fact made the required “reasonable efforts”, and, as such, this would not be a live issue at trial.

 

At the present application, ICBC’S lawyer made an application for the same Master to reconsider his earlier decision, arguing that a miscarriage of justice would likely occur, as the original decision of the Master was based on a misapprehension of the law. ICBC’S lawyer argued that one day before the Master’s original decision, the Court of Appeal Case in Century Services Link v. Leroy ruled that the striking of the Section 24 defence is not a remedy available under Rule 9-6.

 

The Master had jurisdiction to hear the application, as his original Order had yet to be entered. However, the Master refused to reconsider his decision. The Master firstly noted that this was not an application based on fresh evidence, which is the general test for reconsideration. Further, in addition to distinguishing the Century Services Link case on its’ facts, the Master also noted that the proper remedy would have been for ICBC’S lawyer to appeal the original decision of the Master. ICBC’S lawyer had already done this. The Master ruled that it was an abuse of the court process to make an application to have his earlier decision reconsidered, while at the same time an appeal had already been filed.

 

[16] This is obviously not a case where there is proposed fresh evidence; rather, this is a case where ICBC submits that I have misapplied the law. The proper remedy for a master making an error in law is to appeal the decision.

 

[17] The plaintiff disagrees that the law was misapplied.

 

[19] ICBC submits that it has established that a miscarriage of justice would likely occur without a re-hearing because the original decision was based on a misapprehension of the law. On the other hand, the plaintiff submits that a miscarriage of justice would likely occur by forcing the plaintiff to re-litigate an issue which, based on all of the material to date, ICBC has no chance of succeeding on.

 

[20] This does not seem to be a situation such as was facing the Court of Appeal in Century Services; rather, it was an application after examination for discovery on admissible affidavit evidence decided in favour of the plaintiff, the result of which will serve to shorten the trial.

 

[21] The issue of whether or not the decision was erroneous in law remains open. ICBC filed a notice of appeal on March 31, 2015.

 

[22] I decline to reconsider my decision. Seeking to reconsider at this late date as well as to appeal strikes me as an abuse of the court process.

A summary judgment is when a court makes an order or judgment dismissing a claim summarily, meaning without a full trial, on the basis that there is no claim or defence with a reasonable prospect of success. It is not a very common procedure, and will not be granted if there is a genuine issue to be tried. The Court cannot engage in an exercise of weighing evidence of the competing parties, as there must be no evidence contrary to the position advanced by the party making the application in order for summary judgment to be granted.

 

In Klein v. ICBC, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. Liability was admitted by ICBC’S lawyer, and a trial had been set for the following year. Prior to trial, ICBC had made Part 7 (benefits) payments to the Plaintiff, as well as other tort advances. Issues arose with respect to the payment of Part 7 benefits, necessitating the Plaintiff to file a Part 7 action against ICBC, where she sought a declaration that she was entitled to further Part 7 payments, as well as general damages for breach of a contract of insurance.

 

The Plaintiff then brought an application for summary judgment against ICBC, claiming reimbursement of Part 7 expenses, payment of mandatory Part 7 payments that had yet to be made, and aggravated and punitive damages for bad faith on the part of ICBC. ICBC’S lawyer took the position that all payments for benefits had in fact been paid by ICBC, and that the Plaintiff was not owed anything.

 

The positions of the parties were diametrically opposed, with the Plaintiff claiming she was owed money, and ICBC’S lawyer maintaining that she was not. As there was a dispute as to the evidence, the Court took the position that it could not grant summary judgment, and dismissed the Plaintiff’s application.

 

[22] The Supreme Court Civil Rules dealing with summary judgment applications are clear that where there is a genuine issue to be tried, the court may not grant judgment: Drummond v. Drummond Estate, 2012 BCSC 496 (CanLII).

 

[23] In the case before this Court, the genuine issue to be tried involves an oath against an oath. Ms. Klein says under oath she is owed money by ICBC, although the amount is uncertain. Ms. Brown says under oath that there is no money owing by ICBC to Ms. Klein. Ms. Brown further states that “at no time since the Accident, has the Plaintiff’s Part 7 benefits been terminated or suspended”.

 

[24] The test for the availability of summary judgment is provided for in International Taoist Church of Canada v. Ching Chung Taoist Association of Hong Kong Ltd., 2011 BCCA 149 (CanLII), and Nanji v. Bouch (1988), 1988 CanLII 3179 (BC SC), 32 B.C.L.R. (2d) 6.

 

[25] The issue that must be decided by the court in a summary application cannot be based on weighing evidence in favour of a party. There must be no evidence contrary to the position advanced by the applicant in order for the court to grant a summary judgment. As Mr. Justice Wilson provided in Atha v. Thompson, 2008 BCSC 1075 (CanLII) at para. 33, “[i]t is not the function of the court to weigh evidence, or choose between conflicting versions of an event, on a summary judgment application.”

 

[26] Ms. Klein provided the Court with a number of cases that focused on the issue of whether a particular treatment recommended for an injured insured was to be paid for by ICBC. In those cases, ICBC disputed the appropriateness of the proposed treatment. In the case at bar, no particular treatment is disputed. The genuine issue that has arisen is “have all of the services claimed been paid for by ICBC?” That issue is disputed and is not resolvable in a summary proceeding.