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Court of Appeal Rules That ICBC Part 7 Benefits Are Excluded From Repayment Under Subrogated Claims

In Brugger v. The Trustees of The IWA, the Plaintiff was injured in a motor vehicle accident. Pursuant to a subrogation agreement, he received long term disability benefits through the Forest Industry LTD Trust. Under the provisions of the subrogation agreement, the Plaintiff agreed to repay the Trustees the amount of repayable LTD benefits. The Plaintiff also received Part 7 interim wage loss benefits through ICBC.


At one point, the Trustees demanded repayment of the repayable LTD benefits, however the Plaintiff refused, necessitating the cessation of the LTD benefits. The Plaintiff then commenced proceedings seeking damages for the wrongful termination of the LTD benefits. The Trustees counterclaimed for reimbursement.


At a Summary Trial application, the chambers judge ordered the Plaintiff to pay back a certain amount of the benefits, which also factored in Part 7 benefits from ICBC.


The Plaintiff appealed, arguing that Part 7 benefits did not apply to amounts owed pursuant to the subrogation agreement.


The Court of Appeal ruled that the chambers judge had erred when he ruled that Part 7 benefits were to be included as “compensation from … a person whose acts have caused or are alleged to have caused the Disability“. The rationale for the Court of Appeal’s decision is that Part 7 benefits are no fault, first party insurance benefits.


[48]         In my view, Part 7 benefits should not be included in Gross Compensation or calculation of the reimbursement obligation. Such benefits are not paid by or on behalf of a person whose acts or omissions have caused or are alleged to have caused the disability. They are not paid pursuant to Part 6 of the Regulation, which describes third-party liability insurance coverage; they are paid, rather, by the Disabled Employee’s insurer as first-party benefits. Pursuant to s. 79 of the Regulation, they are paid “to an insured in respect of death or injury caused by an accident that arises out of the use or operation of a vehicle” regardless of fault.


[51]         While the Trustees are given authority to set the terms upon which Plan Members are entitled to benefits, and have broad discretion to determine what portion of Gross Compensation represents compensation for wage loss, they have established a Plan and must abide by its terms. Without amending the Plan, they do not have discretion to include in Gross Compensation amounts received by the member that are not paid by or on behalf of a tortfeasor.


[65]         In my view, the Trustees and the chambers judge erred in determining the appellant’s obligation to repay benefits to the Trustees by considering Part 7 no-fault benefits to be compensation paid by or on behalf of a person who caused the appellant’s disability …

After Plaintiff’s Claim Dismissed, Court Of Appeal Orders New Trial Due To Inadequate Reasons in Trial Judgment

In Andraws v. Anslow, the Plaintiff was injured in a low speed, rear end motor vehicle accident, and consequently brought an ICBC claim for damages for pain and suffering, as well as various other types of damages. At trial, the Plaintiff’s claim was dismissed, as the trial judge did not find the Plaintiff had proven that she was injured in the motor vehicle accident in question, ruling that she was not a credible or reliable witness, despite the fact there was corroborating evidence of her injuries from her family doctor and her husband.


Counsel for the Plaintiff appealed, arguing that the trial judge provided inadequate reasons for judgment, and that the trial judge misapprehended relevant, corroborating evidence of the Plaintiff’s injuries. The Court of Appeal stated that the appeal would turn on whether or not the reasons for judgement were adequate. ICBC’S lawyer argued that that the reasons for judgment at trial, when read in conjunction with the actual record, did in fact allow for a meaningful appellate review of the live issues at trial.


The Court ruled that the evidence at trial that was capable, if accepted, of corroborating the Plaintiff’s injuries, included evidence of the Plaintiff’s family doctor, whose testimony included objective signs of injury, which was not challenged in cross-examination. Further, there was evidence given by the Plaintiff’s husband as to his observations about the Plaintiff not being able to sit for long periods of time, about her difficulty sleeping, about her being more irritable since the accident, and about how the Plaintiff could no longer perform certain leisure activities.


The Court of Appeal placed great emphasis on the evidence of the family doctor and husband, particularly that this evidence was not, if at all, adequately discussed in the reasons for judgment. In allowing the appeal, and ordering a new trial, the Court of Appeal ruled that the reasons for the judgement at trial were inadequate, as they did not provide a basis for appellate review. The Court of Appeal noted that the trial judge did not offer any explanation as to why he was of the opinion that the Plaintiff was unreliable, considering that there was independent and corroborative evidence of her injuries that she sustained in the motor vehicle accident. Further, the Court of Appeal noted that the failure in the reasons for judgment to explain why the trial judge concluded that exaggerating the low speed nature of the collision justified a rejection of the plaintiff’s evidence, if that was in fact what he concluded, only highlighted the fact that the reasons for judgment were inadequate.


[9]           Adequate reasons for judgment fulfil certain functions. As the Supreme Court of Canada stated in F.H. v. McDougall, 2008 SCC 53 at para. 98, they justify and explain the result, particularly to the losing party, provide a basis for appellate review, and satisfy the public interest in demonstrating that justice has been done. Reasons may be sufficient if they are responsive to the live issues in the case and the parties’ key arguments. A judge is not obliged to discuss all of the evidence, but it is necessary for the reasons to disclose that he or she has grappled with the substance of the live issues at trial. As Madam Justice Smith noted in Shannon at para. 9, even where reasons may be objectively inadequate, appellate interference will not be justified if the reasons, read in light of the record as a whole permit meaningful appellate review.


[14]        Given the central importance of whether the accident caused any injury, it was incumbent on the judge to demonstrate some basis in his reasons for rejecting Ms. Andraws’ evidence that she suffered injuries in and after the collision when there was some evidence tending to corroborate it. The evidence of muscle spasm shortly after the accident was objective evidence of injury. Its reliability did not depend on Ms. Andraws’ credibility. The trial judge could only have found as a fact that the accident did not cause her any injury if he either rejected the evidence that there was muscle spasm or concluded that the muscle spasm was not caused by the accident but by some other cause (of which there was no evidence). While it was open to the judge to reject the evidence of the objective symptoms of injury, there is nothing in the reasons to explain why he did so. In my view, grappling with this issue was critical to explain the result and to lay a foundation for appellate review. But there is nothing in the reasons that touches on this central question.


[15]        The husband’s evidence is of some importance as well …… Again, it tended to corroborate the allegation that the accident had caused her some injury. The judge’s finding must mean that he rejected the husband’s evidence, at least to the extent that his observations were probative of the claim that Ms. Andraws had been injured in the accident. But there is no reference to the husband’s evidence in the reasons and nothing that even hints at explaining why the judge found his evidence to be unreliable


How Does ICBC Determine Liability ? How Can You Best Protect Your Legal Interests ?

When ICBC is left to determine who is at fault for a motor vehicle accident, it will taken into consideration many factors, such as : your statement; statements of any passengers in your vehicle; statements of the other driver; statements of any passengers in the other vehicle; statements of any witnesses ; statements of any pedestrians if applicable; the police report; whether there is any camera footage of the accident; and, the damages to the vehicles. ICBC will also, if necessary, consider relevant provisions of the Motor Vehicle Act, and may also consider previous court decisions.


If you have an ICBC claim and are unrepresented, it is very important to be very careful of what you tell ICBC about how the accident happened. With the exception of rear end collisions, where the vast majority of the time there is no liability dispute, you are wise to first consult with an ICBC injury lawyer before making any statement to ICBC orally or in writing, or better yet, to have your lawyer make the statement for you. If you do not have a lawyer, if liability is contentious, and if you speak to ICBC over the phone, you are running a serious risk that your ICBC claim may be negatively affected, as you will be peppered with questions by the ICBC adjuster. You could easily say the wrong thing, or omit to say something important, which can be detrimental to your claim. If you decide not to get a lawyer, you are wise to restrict your contact with the adjuster to email communications only.


If you are unrepresented, and are not happy with the initial liability ruling, there is an internal appeal process within ICBC that you can pursue. The first step would be to discuss the decision with the adjuster’s manager. If you are still not content with the liability ruling, you can request a claims assessment review. There is 60 day time limit to initiate this review, which involves an independent decision maker who is not part of ICBC. The decision is binding on ICBC, which means they must accept it, however the decision is not binding on you. If you are not content with the outcome, your final recourse would be court.


Where liability is contentious, it is advisable to first seek legal advice before communicating with ICBC. The liability outcome can not only affect your insurance premiums, but can also affect how much you receive for the injury component of your claim.

Court Of Appeal Rules Passenger To Be A “User” Of A Vehicle, Thereby Making Him An “Insured” Under Driver’s Policy

In Felix v. ICBC, the Plaintiff was seriously injured in a motor vehicle collision after the passenger in her vehicle grabbed the steering wheel, causing a single vehicle accident in which the passenger was killed, and the Plaintiff was seriously injured. The Plaintiff brought an action against the estate of the deceased passenger, and was awarded close to $800,000 in damages. ICBC was notified of the application, but chose not to participate. As ICBC not surprisingly refused to pay, the Plaintiff then brought an action for indemnity against ICBC. The issues for the Court to consider were whether or not the passenger was an “insured” under the Plaintiff’s insurance policy, and whether or not the passenger’s “use” of the vehicle caused the Plaintiff’s injuries.


The Court dismissed the Plaintiff’s case, as it ruled that by deeming the passenger’s actions by grabbing the steering wheel to be a “use” of a motor vehicle, which would thereby qualify him as an insured, this would not be compatible with other sections of the Insurance (Motor Vehicle) Act.


The Plaintiff appealed. The Court of Appeal was left to decide whether or not a passenger “uses” a vehicle when traveling from one point to another, and whether or not in the circumstances of this case there was a causal relationship between the passenger’s “use” of the vehicle and the Plaintiff’s injuries.


The Court of Appeal allowed the appeal, ruling that the passenger was indeed an “insured” under the Act, as his actions constituted “use” of the vehicle. The Court of Appeal took a broad and liberal interpretation of the word “use”. Citing the Supreme Court of Canada decision in Ontario v. Canadian Pacific Ltd., the Court of Appeal noted that they must perform a contextual and fact-specific analysis when engaging in an interpretation of the legal meaning of the word “use”. The Court of Appeal also ruled that there was a clear, unbroken chain of causation from the passenger’s negligent act of grabbing the steering wheel to the injuries sustained by the Plaintiff. The decision of the trial judge was set aside, and a ruling was made that ICBC was liable for indemnification of the passenger’s estate for the original judgment of the Plaintiff’s.


[41]        It is clear from these decisions that the concept of “use” when it refers to use of a motor vehicle is broadly defined. In my view, being a passenger in a motor vehicle is an “ordinary and well-known” use of a vehicle. I therefore agree with the trial judge that a passenger in a motor vehicle “uses” the motor vehicle when he or she is being transported from A to B. Use by a passenger may include other factual contexts, but it is only necessary to address facts presented in this case.


[46]        The word “use” is to be considered in the context of the legislative scheme to provide “access to compensation for those who suffer losses” as a result of a motor vehicle accident, along with the legislative history, context and jurisprudence noted above. The word has been given a broad meaning in other judicial authorities. Considering all of these factors, as noted in Rizzo Shoes, I can only conclude that the word “use” in s. 63(b) includes use by a passenger in a motor vehicle when it is used as a motor vehicle.


ii)        In the context of the facts of this case, is there some nexus or causal relationship between Ms. Felix’s injuries and the use of her vehicle by Mr. Hearne?


[47]        The Court in Vytlingam addressed the issues of causation at para. 25, and said:

For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made.


[48]        I would adopt the analysis and rephrase it in this context, as, “For coverage to exist, there must be an unbroken chain of causation linking the conduct of the user as a user of a motor vehicle to the injuries in respect of which the claim is made.”

Are You Prepared To Sue A Family Member To Obtain Full Compensation For Your Injuries ?

When people are injured in motor vehicle accidents through no fault of their own, the most common type of ICBC claim involves a claim against the driver of the other vehicle.


Certain situations can arise, however, where liability has been apportioned between the two drivers, and there is a passenger in one of the vehicles. If ICBC makes a ruling that both drivers are to blame for the accident, then the passenger would need to bring a claim against the other driver, but also against the driver of the vehicle they are in. This would be to ensure that the passenger receives full compensation for their injuries. If the matter is not settled within two years of the accident, then the passenger would have to formally commence legal proceedings against the driver of the other vehicle, and the driver of the vehicle that they were in.


However, quite often the driver and the passenger in the same car are family members. This raises an interesting dilemma. Would you be prepared to bring an ICBC claim against a family member, and eventually sue that family member if you have to in order to obtain maximum compensation for your injuries ?


You are certainly not required to sue another family member in order to achieve full and proper compensation for your injuries, however any ICBC lawyer would likely encourage you to do so. If you are not interested in doing so, then your lawyer would have you acknowledge this in writing.


A common misconception can arise in that people are worried that if they sue a family member, then that family member would be responsible for the entire amount of damages awarded to the passenger. However, this is an unlikely scenario. As in most cases the family member would have proper insurance, then the family member would only be responsible for any possible increase in premiums. However, if there is no proper insurance in place, and the family member is sued, then ICBC would pay out damages to the passenger, but then seek the whole amount of such damages from the family member.


If you find  yourself involved as a passenger in a motor vehicle accident where there has been an apportionment of liability, and a family member of yours is the driver of the vehicle you are in, you are wise to seek legal advice.

Injured In A Motor Vehicle Accident ? Be Careful What You Post On Your Social Media Profiles

If you have been injured in a motor vehicle accident, and are proceeding with an ICBC claim, it is very important to watch what photos and information you post on social media sites like Facebook, Twitter, MySpace, Instagram, etc …


ICBC has a Special Investigations Unit (SIU) who take the time to look through a claimant’s social media profiles for any evidence in the form of photos, status updates, and/or information that they believe they can use to devalue your claim in some way. As such, it is important to not post photos or information about yourself that ICBC may misinterpret or take out of context. Many people believe that if they have a private profile, then they will be fine, however the SIU can also look at profiles of your friends and/or family in order to find information about you. If ICBC cannot obtain any information about you because you have a private profile and have taken great measures to ensure this, then once litigation has been started, ICBC’S lawyer may make an application to compel you as the Plaintiff to produce the entirety of any given social media profile. The Court will sometimes allow this, either in whole, or in part.


If the Court believes that evidence given at trial by the Plaintiff is contradictory to photos and/or information posted on, for example, Facebook, then this will severely undermine the Plaintiff’s credibility, which will likely affect the amount of damages awarded to the Plaintiff. For example, a Plaintiff’s evidence at trial may be that he or she leads a very sheltered life due to injuries sustained in a motor vehicle accident, however social media profiles may show an entirely different picture of the Plaintiff traveling and engaging in an active social life. Or, a Plaintiff may testify that he or she could no longer participate in sporting activities as a result of injuries sustained in a motor vehicle accident, yet pictures on social media profiles may indicate otherwise. 


You can certainly continue to enjoy your social media activity, just be careful to ensure not to post any photos, status updates, and/or information that may be taken out of context by ICBC, and used against you in an effort to devalue your claim.

The Legal Duty To Mitigate, And How Not Doing So Can Affect Your ICBC Claim

In the context of ICBC claims, mitigation stands for the principle that a person who has been injured in a motor vehicle accident must take reasonable steps to minimize or reduce the amount of the losses suffered, in terms of injuries and economic loss.


A person with an ICBC claim is under a legal duty to mitigate their losses in many ways. One such way is attending for treatment recommended by a family doctor or specialist, so that an effort is made to ameliorate a claimant’s injuries faster than without having the treatment. Another example is attempting to return to work, so as to minimize wage loss. If a person loses a job because of injuries sustained in a car accident, then they are also expected to seek other forms of employment, again so as to minimize income loss. It must be remembered that a claimant must only make “reasonable” efforts at mitigating their overall losses. What is reasonable, of course, will depend on the circumstances of each case.


Please click here for a plethora of cases discussing the concept of mitigation, and how a person’s ICBC claim may or may not be affected. Lawyers for ICBC typically make arguments at trial that a Plaintiff failed to mitigate his or her damages, and ask the Court for a reduction in the award to reflect this. Examples of arguments made by ICBC’S lawyer can include the Plaintiff not attending for psychological counseling, not taking prescribed medications such as  antidepressants, not continuing with an active rehabilitation program, not taking cortisone injections, not electing to go with surgery, or not engaging in a home exercise program.


It can be difficult for ICBC’S lawyer to succeed in a failure to mitigate argument against you. It first must be shown that it was unreasonable for you to refuse to listen to your doctor’s recommended course of treatment. ICBC’S lawyer must also prove the extent, if any, that your damages would have been reduced had you followed your doctor’s advice with respect to treatment. It should also be noted that the Court has consistently held that an inability to fund treatment is not to be construed against the Plaintiff with respect to a failure to mitigate. However, if you are able to attend treatment, and you choose not to, this will be negatively reflected in an offer by an adjuster prior to trial, the theory being that had you sought treatment, you likely would have recovered sooner. Any court award could be affected as well.


If ICBC’S lawyer is successful in advancing a failure to mitigate argument, then the Court would make a reduction in the award, usually anywhere from 10% – 25%.


The best way to avoid a failure to mitigate argument by ICBC’S lawyer is to listen to your doctor’s recommended course of treatment for your recovery.


What Is An Examination For Discovery, And How Does It Affect Your ICBC Claim ?

When I discuss the steps of the litigation process with my clients in the context of their ICBC claims, most of unaware of what exactly an examination for discovery is.


The relevant rules pertaining to an examination for discovery are contained in Rule 7-2 of the British Columbia Supreme Court Civil Rules. An examination for discovery is a pre-trial step that every Plaintiff commencing an ICBC claim for damages must attend. It typically occurs within a year of the date of service of the Notice of Civil Claim (the legal document formally commencing the action) on ICBC and/or the Defendant personally. Your lawyer meets with you in advance of the examination for discovery to prep you for it, explaining what types of questions to expect, and how to conduct yourself at the examination for discovery.


Present at the examination for discovery will be you, your lawyer, an ICBC lawyer, a court reporter, and sometimes an ICBC adjuster. The ICBC lawyer will question you on anything related to the accident, such as how the accident happened ; your educational background ; your injuries ; what doctors you saw ; what treatment providers you attended to; the efforts you made at rehabilitation ; the effect of your injuries on your life and job; your economic loss, etc… The questioning is typically very broad in scope. The duration of the examination for discovery is seven hours in some cases, but only two hours if your matter proceeds through the fast track route. Your lawyer is present with you to ensure that no improper questions are asked of you, and will object if this occurs. This can sometimes result in ICBC’S lawyer bringing a court application to compel answers to such questions.


Requests are invariably made at the examination for discovery for further financial and medical documentation. If your lawyer agrees to produce them, you may then later be examined for a second time, but only on the newly requested documentation.


Provided that a client is credible, and provides consistent testimony later at trial should it ever reach that stage, then the trial result rarely depends on what happens at examination for discovery. Many clients believe that the examination is the be all and end all of their matter, however this is simply not the case. One of the main factors an ICBC lawyer will consider is how credible you are at the examination, and how well you would present to a judge and/or jury.


There is also a common misconception that if a Plaintiff attends at an examination for discovery, then a full blown trial is inevitable, however this is simply not the case. The vast majority of ICBC claims settle between the time of the examination for discovery, and trial.

What Are Legal Costs, And How Can You As A Plaintiff Be Affected ?

Questions I frequently get asked by clients with ICBC claims are “what are legal costs”, and “how do these affect me” ?


Legal costs are financial allowances made to a successful litigant, whether before or after trial, in order to help offset the cost of legal fees. The most common type of legal costs is “party and party costs”, which are awarded to the successful party, although such costs do not fully indemnify the Plaintiff for the cost of legal fees. Such costs are based on a Schedule in the Rules of Court, and are paid as $110 per unit. The amount of “party and party” costs paid depends on the length and severity of case, and what legal steps formed part of the litigation process. Costs can be awarded for such legal steps as filing a Notice of Civil Claim, negotiations, attendance at an Examination for Discovery, interlocutory court applications, and for trial preparation and the trial itself. For “party and party” costs to be awarded prior to an actual trial having occurred, a Notice of Civil Claim must be filed, and the matter must settle for more than $25,000.00.


Legal costs have the most impact when a formal offer to settle has been issued by the Plaintiff or Defendant. For example, if a Defendant makes a formal offer to settle, one of the provisions of the offer will be that the Defendant will be entitled to its’ legal costs after the date the formal offer is made, with such costs being offset against the Plaintiff’s costs up to the date the formal offer is made.


When a formal offer to settle has been made, it can then be brought to the Court’s attention after judgment is made, and before a ruling as to costs. If for example, the Defendant makes a formal offer to settle for $200,000.00, and the Plaintiff is successful but only obtains a $150,000.00 judgment at trial, then the Court has discretion to make several different costs rulings. For example, the Court can strip the Plaintiff of his or her post offer costs. The Court can also strip the Plaintiff of his or her post offer costs, while granting the Defendant his or her post offer costs. The Court can even order both the Plaintiff and Defendant to bear their own costs after the date the formal offer was made.


If there is a situation where the Plaintiff is granted an award at trial greater than the formal offer made by the Defendant, then the Court has discretion to award the Plaintiff double costs as well, from the date of the formal offer to the date of trial.


In addition to “party and party” costs, there are also many different types of costs :


Costs in any event, or in any event of the cause

These are legal costs awarded at an interim court application to the party that is successful at the application itself, even though that party may not be successful at trial.

Costs in the cause

These are legal costs awarded at an interim application that are reserved for the successful party at trial.

Costs payable forthwith

Such legal costs must be paid immediately by the party who loses an interim application.

Solicitor and client costs

Such legal costs are awarded at a higher scale than “party and party” costs, and can approach full indemnification to the successful party

Special costs

Again awarded at a higher scale than “party and party” costs, such costs are awarded where there has been reprehensible conduct by one of the parties to the litigation. Such costs are not that commonly awarded.

What Can A Court Do If You Are Successful At Trial, But Do Not Beat ICBC’S Formal Offer?

If you are successful at the trial of your ICBC claim, yet are awarded an amount less than ICBC’S final formal settlement offer before trial, this can trigger the Court’s discretion with respect to costs. Such offers cannot be brought to the Court’s attention until such time that all issues in the proceeding, with the exception of costs, have been determined.


The Court will look at different factors when exercising its’ discretion, such as :


• whether the Defendant’s final formal offer ought to have been reasonably accepted
• the relationship between the terms of the offer, and the judgment of the Court
• the respective financial circumstances of the parties
• any other factor that the Court deems appropriate


One possibility is that the Court can strip the Plaintiff of any post offer costs and/or disbursements after the date of delivery of the Defendant’s final formal offer to settle. This can be quite substantial, particularly in the context of a lengthy trial, as such an amount can include trial preparation, attendance at trial, and/or disbursements such as expert witness fees.


Another possibility is that the Court can grant the Defendant costs in regard to some or all of the legal steps taken in the proceeding after the date of delivery of the formal settlement offer, while stripping the Plaintiff of such costs. This, depending on trial length, can also be significant, after taking into consideration trial preparation, attendance at trial and/or disbursements, such as expert witness fees.


The Court can also order both the Plaintiff and Defendant to bear their own costs after the date of the offer.


If the Plaintiff receives a small judgment in Court, then the issue of costs can be that much more problematic for the Plaintiff, who could quite conceivably owe money to ICBC, even after being successful at trial.


A risk assessment needs to be done prior to proceeding all the way to a trial, with the possible negative costs consequences being a very important factor to consider.