“Concerning” Affidavit Makes ICBC Benefits Deduction Application Come Up Short

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, largely rejecting an ICBC application to have future care benefits from a tort judgment significantly reduced.

In today’s case (Luck v. Shack) the Plaintiff was in a collision and was awarded damages for prolonged injuries including $85,000 for future care costs.  The Defendant argued that much of the services covered by this award can be accessed through ICBC no-fault benefits and asked that the award be reduced by $65,000.  The Court noted ‘concern‘ about ICBC’s affidavit evidence leaving some uncertainty as to whether discretionary no fault benefits would be paid or denied in the future.  In only allowing $3,540 in deductions Madam Justice MacDonald provided the following reasons:

[50]         To answer whether I should deduct the amounts, I must turn to the sworn evidence of the ICBC claims specialist. As stated in Norris at para. 35: “The Court will not presume that the future conduct of ICBC will be other than honourable.” However, Riley J. in Sangha stated that this Court must independently assess the affidavit evidence from the ICBC specialist. Even where an affidavit “irrevocably, unequivocally, and unconditionally” agrees to reimburse the plaintiff for the future benefits, I must analyze this commitment to ensure it is in compliance with the Act and Regulation: Schmitt; Sangha. In Sangha, this Court did not accept the ICBC specialist’s evidence that ICBC would “irrevocably, unequivocally, and unconditionally” pay for certain benefits in the future.

[51]         Ms. Uppal deposed that ICBC accepts this Court’s Judgment regarding Ms. Luck’s treatment needs following the motor vehicle accident. Ms. Uppal deposed that ICBC will “irrevocably, unequivocally, and unconditionally agree to pay, under Part 7” the cost of the future care amounts specified in the Judgment,[2] “up to the amounts allowed pursuant to section 88(1.2) and schedule 3.1 of the Regulation”.

[52]         Despite the above statement, I have concerns with the affidavit evidence because Ms. Uppal does not waive the need for continued medical certification in the Regulation. For example, mandatory and discretionary benefits are limited to the amounts set out in Schedule 3.1 of the Regulation. Ms. Uppal refers to this limitation in paragraph 15 of her affidavit:

  1. I am authorized on behalf of ICBC to advise that ICBC will irrevocably, unequivocally, and unconditionally agree to pay, under Part 7, for the following itemsup to the amounts allowed pursuant to section 88(1.2) and schedule 3.1 of theRegulation, as incurred and submitted to ICBC by the Plaintiff for reimbursement, up to the amounts indicated in the table below… [Emphasis added.]

[53]         Further, Ms. Uppal did not address the s. 88(1.01) treatments, over and above the number of mandatory pre-authorized treatments, that are provided more than 12 weeks after the date of the accident. Ms. Uppal did not refer to waiving the need for continued medical certification.  The affidavits relied upon in Sangha and Wark both waived the need for future medical certification and referred to s. 88(1.01).

[54]         Importantly, Ms. Uppal testified that if there is any uncertainty as to what, if any, Part 7 benefits may be payable to the plaintiff she would look to the Act and Regulation. This statement was not qualified by any reference to her affidavit. 

[55]         The plaintiff points out that funding for a pain management clinic is not provided for as a treatment modality under Part 7 and is not provided for in Schedule 3.1. The defendants argue ICBC will fund the clinical counselling aspect of the pain management treatment. Even accepting this argument, the counselling would take place more than 12 weeks after the accident. It is therefore a discretionary benefit and suffers from the same problem articulated above.

[56]         The defendants bear the onus to prove entitlement to ongoing benefits. Any uncertainty must be resolved in favour of the plaintiff. To prove ongoing reimbursement for benefits, the defendants’ evidence must use precise language. Ms. Uppal’s evidence was not sufficiently precise, especially when combined with her testimony. I adopt Riley J.’s comments in Sangha:

[20(a)] …Thus, while Ms. Sit says ICBC will “irrevocably, unequivocally, and unconditionally” agree to pay all of Ms. Sangha’s previously incurred expenses under as Part 7 benefits, I foresee some difficulty in Ms. Sangha obtaining reimbursement. This is not a criticism of Ms. Sit’s integrity as a duly authorized ICBC representative, but rather a recognition that an insured person may encounter resistance in obtaining benefits where there is apparent inconsistency between ICBC’s presently-stated position and the requirements set out in the Regulations. The ambiguity on this particular point must be resolved in Ms. Sangha’s favour. I would not deduct this amount.

[57]         Based on the above reasoning, Ms. Uppal’s affidavit and testimony do not satisfy me that ICBC has waived the requirements in s. 88(1.01) of the Regulation and the need for ongoing medical certification. Uncertainty persists with respect to these discretionary benefits. I am not satisfied Ms. Uppal’s commitment, especially when viewed in light of her qualifications in oral testimony, overcomes the ongoing conditions in the Regulation.

[58]         The deficiencies in the evidence create uncertainties regarding the future payment of benefits. Any uncertainties must be resolved in favour of Ms. Luck. I am therefore unable to deduct the full $65,000 from the Judgment to avoid double recovery.

[59]         I will deduct an amount from the Judgment based on the benefits for which Ms. Luck can, with certainty, be reimbursed.

bc injury law, Luck v. Shack, Madam Justice MacDonald, Section 83 Insurance (Vehicle) Act

Some temporary COVID-19 support measures to expire

August 7, 2020

With Phase 3 of B.C.’s Restart Plan progressing and more British Columbians returning to B.C.’s roads and highways, three of the temporary measures ICBC had introduced in response to the COVID-19 pandemic are now set to expire in the coming weeks.

The B.C. Utilities Commission had approved ICBC implementing the following measures starting April 23 and ending on August 20:

  • waiving of the $30 insurance cancellation charge

  • suspension of fleet vehicle insurance

  • allowance of unlimited deliveries by drivers in non-delivery rate classes

Private passenger vehicles continue to have up to six days per month for delivery use.

Customers are now reinsuring their vehicles at higher than historic levels. Since April 23, 2020, a total of 300,000 new plate policies have been issued for non-fleet customers compared with the approximately 120,000 non-fleet customers who cancelled their insurance policies for the same time period.

As these measures come to an end on August 20, customers are encouraged to talk to their broker to ensure they are properly insured, including those people who are using their vehicle for the delivery of food or medical products and services.

The following measures remain in place at this time, as outlined in regulation:

  • waiving of the $18 re-plating fee

  • waiving of the first knowledge test fee for learner driver’s licence holders whose licence expired during the pandemic

Customers can continue to renew their insurance by phone and email with the help of brokers, and those who are facing financial hardship and who pay for their insurance on a monthly basis still have the ability to defer their payments for up to 90 days with no penalty.

ICBC continues to review its operations to support the safety and well-being of its customers and employees as normal business resumes.

​ICBC & police warn impaired drivers ahead of long weekend

​ICBC & police warn impaired drivers ahead of long weekend

This B.C. Day long weekend, our roads will be busy with some British Columbians choosing to travel throughout the province for a getaway and others visiting local parks and restaurants. No matter what your plans are, if you plan to drink, don’t drive.

Police will be setting up CounterAttack roadchecks across the province to get impaired drivers off our roads. If you’re caught driving impaired, you could end up paying in a number of lasting ways – from increased insurance premiums to fines, car impoundment or even jail time.

On average, four people are killed and 620 people injured in 2,200 crashes across the province over the B.C. long weekend.*

5 ways to stay safe on your road trip:

  1. If you’re away from home, you may not be familiar with all of the options available to get home safely after you’ve had a few drinks. Check your options such as taxis, ride sharing, transit or shuttle services before you head out and save the information into your cell phone so you can relax knowing you have a plan to get home safely.

  2. Most crashes on B.C. Day long weekend occur on Friday so plan to leave on Thursday or Saturday morning if possible to avoid traffic congestion and possible delays. You should also make sure you get a good night’s sleep to avoid getting fatigued behind the wheel. Plan your route on drivebc.ca and include rest breaks or switch drivers every two hours.

  3. Do a pre-trip check and check your engine oil, coolant levels and lights, and inspect your vehicle tires, including the spare, to make sure they’re in good condition and properly inflated. Make sure any camping or outdoor equipment is securely tied down to your vehicle before you take off.

  4. Summer means more motorcyclists on our roads so it’s vital to scan as you approach an intersection. Be ready to yield the right-of-way when turning left and keep in mind that it can be hard to tell how fast motorcyclists are travelling.

  5. Be patient with R.V. drivers if they’re travelling below the speed limit in mountainous areas as they’re likely going uphill as fast as they can. If you’re driving your RV this weekend, be courteous and pull over when it’s safe to do so to let others by. This is much safer than a driver making an unsafe pass out of frustration.

Regional statistics*:

  • Over the B.C. day long weekend, on average, 420 people are injured in 1,400 crashes in the Lower Mainland every year.

  • Over the B.C. Day long weekend, on average, 94 people are injured in 380 crashes in the Southern Interior every year.

  • Over the B.C. Day long weekend, on average, 26 people are injured in 130 crashes in North Central B.C. every year.

  • Over the B.C. Day long weekend, on average, 75 people are injured in 330 crashes on Vancouver Island every year.

* Five-year annual average. Crash and injury data is ICBC data (2015 to 2019). Fatality data is police data (2014 to 2018). B.C. Day long weekend is calculated from 18:00 the Friday prior to B.C. Day to midnight on B.C. Day.

Extensive new ICBC data available to public online

British Columbians can now access comprehensive new data, quickly and easily, as part of ICBC’s commitment to increase transparency, with extensive crash and vehicle population data available on icbc.com.

“Making sure the public is well-informed and supported is a priority,” said Nicolas Jimenez, ICBC’s president and CEO. “We’ll continue to expand the data available on icbc.com to better support customers, researchers, media and stakeholders.”

ICBC is sharing more data publicly in a customizable, convenient format that will make data available to the public in a timelier way. This initiative also supports the B.C. government’s Open Data initiative.

Customers can customize the new data sets or download the data in its entirety.

Vehicle population data includes various fields such as municipality, vehicle type or area based on the first three characters of a postal code. Crash data can be filtered to the details of an individual crash, including the street and crash configuration (for example, rear end, head on or side impact). As an example, users can filter crash data to municipality level by severity, street name and identify whether a pedestrian or cyclist was involved.

More data will be added throughout the year on topics including contraventions and driver licensing.

Quick Statistics, a collection of the most commonly requested statistics provided in a simple view, was previously published as PDFs and is now available in a downloadable, interactive format. Quick Statistics and crash maps have also been updated with 2019 data.

ICBC launches online booking system for in-office driver licensing appointments

ICBC launches online booking system for in-office driver licensing appointments

Starting today, ICBC is moving to an appointment-based system for most driver licensing office transactions. As customer volume increases, ICBC is asking customers to book an appointment before visiting an ICBC office for transactions such as driver licence renewals and knowledge tests.  This ensures that ICBC continues to adhere to physical distancing guidelines set by the Provincial Health Officer.

As of today, customers can book their appointment through icbc.com. When booking a visit to a driver licensing office, customers will be able to choose a location and time that is convenient for them, allowing customers to plan their visit in advance. Customers will be asked to arrive 10 minutes prior to their appointment and to ensure they have the required documentation with them. This online booking system is not for booking road tests.

ICBC is strongly advising customers to book an appointment at least three weeks in advance of their driver licence expiring, as walk-in availability will be limited, and waits are anticipated as scheduled appointments take place. The system will offer flexibility for rescheduling and cancelling appointments if needed. Customers will receive a confirmation email as well as two reminder emails with instructions ahead of the appointment. Consistent with public health guidelines, ICBC is asking customers not to attend an office if they are experiencing any COVID-19 symptoms.

Customers who need to pay a ticket, obtain their driver history/abstract or update their address can continue to do so online or by phone.

For more information on ICBC’s services during the pandemic, visit icbc.com/covid-19.

CRT Assesses Damages for “Relatively Minor” Injury at Only $1,500

The guest post is written by ERIK MAGRAKEN

Reasons for judgement were published this week by BC’s Civil Resolution Tribunal (“CRT”) addressing fault and damages following a collision.  In what is one of the lowest assessments of non-pecuniary damages I have seen the CRT awarded $1,500 for injuries which lasted several months.

In today’s case (Thandi v. Uggal) the Applicant was involved in a 2019 collision.  The Respondent denied fault but was found liable for the crash.

The Applicant, who was self represented, gave evidence that he suffered various soft tissue injuries.  These required 3 physiotherapy sessions and two doctors visits.  The Applicant did not bring medico-legal evidence in support of his claim.

Tribunal Member Kristin Gardner accepted he was injured but awarded non-pecuniary damages at only $1,500.  In doing so the Member cited a BC Provincial Court authority from 14 years ago, took the lowest end of the suggested range of applicable damages and did not adjust it for inflation.  In reaching this assessment the following reasons were given:

35.   Mr. Thandi submits that he suffered injuries to his neck, shoulder and upper back as a result of the accident.

36.   Mr. Thandi claims $5,500 for pain and suffering. This figure is the applicable cap for a “minor injury” as defined in the Insurance (Vehicle) Act (IVA). The parties did not expressly agree whether Mr. Thandi’s injuries are “minor injuries” as defined in section 101 of the IVA. However, given Mr. Thandi’s claim does not exceed the applicable “minor injury cap”, I find that I do not need to determine whether the injuries are in fact “minor injuries”.

37.   Mr. Thandi says that due to the Covid-19 pandemic he was unable to obtain his doctor’s records to support his claim. However, I note that Mr. Thandi did not request an extension of these CRT proceedings so that he could obtain this evidence. It is undisputed that Mr. Thandi attended 3 physiotherapy treatments and 2 visits to his doctor, with his last treatment in November 2019. Mr. Uggal submits that there is insufficient documentation to properly evaluate Mr. Thandi’s claim for pain and suffering. However, Mr. Uggal does not dispute that Mr. Thandi sustained injuries from the accident.

38.   In Holt v. Hertzberg, 2006 BCPC 228 at paragraph 27, the court noted after reviewing the authorities, that non-pecuniary damages for relatively minor soft tissue injuries that resolve within a matter of months are often assessed in the range of $1,500 to $7,500, depending on the facts of the case. Given the limited evidence about Mr. Thandi’s injuries, on a judgment basis, I find that $1,500 is appropriate compensation for non-pecuniary (pain and suffering) damages.

minor soft tissue injury, Thandi v. Uggal, Tribunal Member Kristin Gardner


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