IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100809

Docket: M116294

Registry:
New Westminster

Between:

Trevor Mudrie

Plaintiff

And

Donald Lee Grove,
John Doe, Richard Roe, XYZ Corporation and

Insurance Corporation
of British Columbia

Defendants

Before:
The Honourable Mr. Justice A. Saunders

Reasons for Judgment

I.        Introduction

[1]            
The defendant ICBC applies under Rule 18A for dismissal of the claim brought
against it by the plaintiff under s. 24 of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231.

[2]            
Section 24 provides for a direct action against ICBC when a plaintiff
has been injured by an unidentified driver. On this application, ICBC raises
three arguments:

a)    that the name of
the driver, allegedly the defendant named Donald Lee Grove, has been
ascertained;

b)    alternatively,
that if the identity of the driver has not been ascertained, the plaintiff
cannot show that his identity is not ascertainable or could not have been
ascertained through reasonable efforts;

c)     that in
any event the claim is barred by reason of s. 24(2), in that ICBC was not given
written notice of the claim within six months after the accident.

II.       Statutory Provisions

[3]            
The pertinent provisions of s. 24 read as follows:

Remedy for damage in hit and run accident

24(1)    If bodily injury to or the death of a person or damage
to property arises out of the use or operation of a vehicle on a highway in
British Columbia and

a)     the names
of both the owner and the driver of the vehicle are not ascertainable, or

b)     the name
of the driver is not ascertainable and the owner is not liable to an action for
damages for the injury, death or property damage,

c)     any person
who has a cause of action

d)     as
mentioned in paragraph (a), against the owner or the driver, or

e)     as
mentioned in paragraph (b), against the driver,

in respect of the bodily injury, death or property damage may
bring an action against the corporation as nominal defendant . . .

(2)        Proceedings must not be brought against the
corporation as nominal defendant under this section unless the person bringing
them gives written notice to the corporation as soon as reasonably practicable
and in any event within 6 months after the accident that caused the bodily
injury, death or property damage.

. . .

(5)        In an action against the corporation as nominal
defendant, a judgment against the corporation must not be given unless the
court is satisfied that

a)     all
reasonable efforts have been made by the parties to ascertain the identity of
the unknown owner and driver or unknown driver, as the case may be, and

b)    
the identity of those persons or that person, as the case may be, is not
ascertainable.

III.       Facts

[4]            
The plaintiff’s evidence is that he was rear-ended on June 12, 2007. The
driver of the other vehicle – named in the style of cause as the individual
defendant, Donald Grove – approached the plaintiff’s car asking if he was okay
and apologizing. They then drove to a nearby parking lot to exchange
information. Mr. Grove said that he did not want to report the accident
because he was from Alberta, and wanted to pay personally for the damage. The
plaintiff replied that he was uncomfortable with not reporting the accident. The
plaintiff states in his affidavit that Mr. Grove then produced his
driver’s licence – which the plaintiff believes was from Alberta – and the
plaintiff confirmed that the photograph on the licence looked like Mr. Grove.

[5]            
The other driver then purported to record his name, address and
telephone number, and his insurance policy number, on a piece of paper which
the plaintiff took from his day planner. The notes read as follow:

tuesday June 14, 07

Lee Grove, Donald

 7506 – 102 St

 grande cache

 Alberta
T9S 2C3

Policy  #   6C324337

 ING Brokerlink

 604-808-9571

[6]            
Below that information is a series of numbers and illegible characters
in the plaintiff’s own handwriting. He deposes in his affidavit that he is not
sure what those characters refer to. Below those characters is the following,
also in the plaintiff’s handwriting:

Plate JBY-85

Honda Prelude

[7]            
On examination for discovery, the plaintiff recalled Mr. Grove was
driving a black Honda Prelude, or at least a black Honda. He also stated that
he and Mr. Grove spent 15 or 20 minutes together talking, in the parking
lot, while the plaintiff waited for his father to come and pick him up.

[8]            
The plaintiff states in his affidavit that he was very shaky recording
this information on the scrap piece of paper, and that he was "in shock
and in pain" at the time of the accident and for some time afterwards.

[9]            
The excerpts from the transcripts of the plaintiff’s examination for discovery
in evidence, which are relied upon by ICBC on this application, provide only a
superficial understanding of the plaintiff’s interaction with the other driver
when they were together in the parking lot. It is unclear if the other driver
ever verbally identified himself to the plaintiff by name; if the plaintiff
checked the driver’s name and address when shown his driver’s licence, as
opposed to confining his check to comparing the photograph to the driver’s
appearance; and if the plaintiff checked any of the information written out by the
other driver against either the driver’s licence or the insurance policy. Although
the plaintiff conceded that he spent 15 or 20 minutes with the other driver
before his father picked him up, there is no evidence of what they talked
about, or if the plaintiff even has any recollection of any conversation. If
these subjects were canvassed on the examination, the corresponding passages
from the transcripts were not before the court.

[10]        
Finally, the plaintiff states in his affidavit that he made his best
efforts to record the defendant’s information correctly, and that he had no
reason to believe that the defendant was providing him with false information
at the time of the accident.

[11]        
Affidavits from the office of the plaintiff’s counsel set out the steps
that were then taken to identify and locate Mr. Grove. The plaintiff
retained counsel within days of the June 2007 accident. Nevertheless,
plaintiff’s counsel concedes that the file essentially lay dormant in their
offices for one year.

[12]        
An affidavit of a paralegal, Ms. Larsen – sworn in support of a
subsequent application to renew the writ of summons and to be given leave to
serve the defendant Grove substitutionally – explains what then transpired. Ms. Larsen
states that on June 8, 2008 she requested a pre-court vehicle plate search from
the Alberta Service Bureau for a Honda Prelude, Alberta licence plate JBY 85,
in the name of Donald Lee Grove, 7506-102nd Street, Grande Cache, Alberta. Attached
to Ms. Larsen’s affidavit as an exhibit is the Search Report, which she
says she received on that same day, June 8. The Search Report’s result is
"Not Found".

[13]        
This portion of Ms. Larsen’s affidavit is deficient and suspect to
some degree. First, the Search Report states that the search criteria used was
simply the plate number; there is nothing in the Report to confirm that Mr. Grove’s
name and address were given to the motor vehicle registry for searching, and Ms. Larsen’s
search request – if it was in writing – is not reproduced. Second, the Search
Report indicates the "customer reference number" as "Grone"
rather than "Grove", leading one to wonder, if a name search was
done, whether the correct name was given. Moreover, Ms. Larsen clearly has
the date wrong:  the Search Report is dated June 5, 2008, not June 8,
and bears a June 5 fax transmission stamp.

[14]        
The Search Report, I note, is stated to be a motor vehicle registry
search. The negative search result, in my view, clearly ought to have set off
alarm bells as to the accuracy of the information in counsel’s file, which
their client had provided to them, as to the other driver’s identity, and
clearly ought to have indicated the potential for the other driver being
unidentified. Nevertheless, there is no evidence of steps having been taken at
that time, nor at any subsequent time, to ascertain whether the Alberta
licensing authority – or, to allow for a lack of absolute certainty on the part
of the plaintiff as to whether Mr. Grove’s license was from Alberta, the
licensing authorities of any other provinces – had any record of a driver named
"Donald Lee Grove", "Donald L. Grove" or any other possible
combination of names and initials.

[15]        
Counsel for ICBC also points to the curious fact that the plate number
recorded by the plaintiff had only five characters, rather than the usual six. There
is no evidence of any inquiries having been made of the Alberta motor vehicle
registry as to whether five-character plates are issued; nor, if six characters
is the norm, whether a search could be made for six-character plates with one
of the characters missing.

[16]        
Despite this situation – where it seems clear that there were issues
that needed to be addressed as early as June 5, 2008 – Ms. Larsen deposes
to no further steps having been taken for a further three months until
September 4, 2008. Ms. Larsen deposes that on that date she spoke to an
ICBC adjuster to determine whether they had any information regarding Donald
Lee Grove. Ms. Larsen was told that ICBC had no such information. Why this
inquiry concerning someone who was purportedly an Alberta resident and an
Alberta-licensed driver was directed to the Insurance Corporation of British
Columbia is not explained.

[17]        
The writ of summons, with attached statement of claim, was filed November 13,
2008. The writ names, in addition to Mr. Grove and ICBC, three nominal
defendants:  John Doe; Richard Roe; and XYZ Corporation. Donald Lee Grove is
alleged to reside at 7506-102 Street, Grande Cache. It is alleged in the
statement of claim that the driver of the vehicle which hit the plaintiff was
either Donald Lee Grove or John Doe; the owner of that vehicle is alleged to
have been either Grove, Doe, Roe or XYZ. The naming of the alternative pseudonymous
defendants in the style of cause implies some uncertainty on the part of
plaintiff’s counsel as to the defendant driver’s true identity, which I find must
have stemmed from the negative license plate search of June 5; however, despite
that uncertainty, there is no evidence of any effort having been made up to
that point in time to verify whether the stated address was current or correct.

[18]        
ICBC was served with the writ and was put on notice of the claim,
pursuant to s. 22 of the Insurance (Vehicle) Act, by way of letter
dated April 8, 2009, i.e. some 22 months after the accident, 10 months after
the negative vehicle plate search, seven months after the verbal inquiry to
ICBC, and five months after the action was commenced. ICBC had no prior notice
of this claim. ICBC then filed a statement of defence on June 5, 2009, with an
endorsement electing fast track litigation under R. 66.

[19]        
Ms. Larsen deposes in her affidavit to the steps taken to serve Mr. Grove.
A registry service was retained to serve Mr. Grove personally at the
address in Grande Cache. In an affidavit of attempted service, a process server
by the name of Ms. Taylor describes her efforts in this regard. She went
to Grande Cache and discovered that there was no address number 7506 on 102
Street; the numbers on that street went from 9000-10000 only. She spoke with
several people who lived on that street and no one had ever heard of the
defendant. She consulted the local telephone directory and could find no
listing. On April 15, 2009, Ms. Taylor was instructed by plaintiff’s
counsel to retain a skip tracer, which they did. On June 16, 2009 Ms. Taylor
received an email from the tracing service, informing her that they had been
unable to locate Mr. Grove and would be closing their file. There is no
description of the steps taken by the skip tracer to locate Mr. Grove or
verify his identity.

[20]        
The final step described by Ms. Larsen’s affidavit is that on
August 14, 2009, she placed a call to the purported insurer of Mr. Grove,
ING, in Calgary to determine whether they had any information concerning him. She
states:

I was advised by ING customer
service during this telephone conversation that the ING database had no
individual by the name of Donald Lee Grove residing at 7506-102nd Street, Grande
Cache, Alberta, listed on their database and, further, that the claim number
did not match any on their system.

Ms. Larsen does not state whether she asked ING to
determine whether they had a record of anyone named Donald Lee Grove at any
other address. Her reference to a "claim number" search is also
problematic; as no claim had been made at the time of the accident, the number
given to the plaintiff at the accident scene would have been a policy number,
not a claim number, so of course a search for that claim number would have to
have been negative. It is not clear that ING has searched their database of
policy numbers, nor even if the number given by the other driver is in the
format used by ING for their vehicle insurance policies.

[21]        
In response to this application, plaintiff’s counsel filed a further
affidavit from a legal assistant named Ms. Santiago. This affidavit of Ms. Santiago
unnecessarily, and improperly, sets out Ms. Santiago’s interpretations of Ms. Larsen’s
affidavit, which is attached as an exhibit. Referring to Ms. Larsen’s
contact with ING, Ms. Santiago says that:

“Upon further review of the
aforementioned Affidavit #1 of M. Larsen, I have ascertained that during the
same conversation, ING informed Ms. Larsen that there was no individual by
the name of Donald Lee Grove in their database . . .”.

As I have observed above, that is not what Ms. Larsen’s
affidavit says.

[22]        
Finally, by way of an order granted September 9, 2009, the plaintiff was
given leave to serve Mr. Grove substitutionally by way of legal advertisement
in the Grande Cache Mountaineer and The Province, and this
has been done. No appearance has been filed on behalf of Mr. Grove.

[23]        
A two-day Rule 66 trial is set to commence September 16, 2010, with the
plaintiff claiming tort damages from Grove, or alternatively against ICBC under
s. 24.

IV.      Position of the Plaintiff

[24]        
The plaintiff asks that the application be dismissed on the following
grounds:

1)   
That the application is inappropriate for disposition under R. 18A
because:

a)    Rule
18A conflicts with Rule 66;

b)    there
are conflicting affidavits which cannot be resolved;

c)     there
are credibility issues; and

2)    That on the
merits,

a)    the
driver and owner are unidentified;

b)    reasonable
steps have been taken to ascertain the identity of the owner and driver;

c)     ICBC was
given actual or constructive notice under s. 24(2) of the Act
within a reasonable time after the plaintiff became aware that this matter
involved an unidentified driver.

[25]        
Given the plaintiff’s concerns as to late delivery of an ICBC affidavit
respecting the s. 24(2) notice issue, and my concern regarding the lack of
any substantial argument and supporting case law on that issue in ICBC’s
outline, I gave leave to the parties to file further written submissions on
that issue.

V.       Suitability for Disposition under Rule 18A

[26]        
During the course of the hearing, I ruled that Rule 66 is not in
conflict with Rule 18A, and hence the paramountcy of Rule 66, pursuant to
subrule 66(4), is not in question. On this issue, Plaintiff’s counsel relied
upon the decision of a Master in Hamilton v. Watson, 2005 BCSC 1750, a
costs assessment. The plaintiff in that case argued that its costs ought not to
be subject to the Rule 66 cap, as defence counsel had delivered a Rule 18A
application in the course of the proceedings. The Master described the
defendant’s position, and her ruling, as follows, at paras. 18-20:

[18]  Defendants’ counsel claims that they were entitled to
seek a summary trial pursuant to Rule 18A of the Rules of Court, as Rule 66
does not prevent this. I disagree. Rule 66(4) states,

In the event of a conflict between
this Rule and another Rule, this Rule applies.

[19]  There are a number of conflicts as between Rule 18A and
Rule 66.

[20]  I gather, other than some
correspondence between counsel and a review of the Rule 18A application by
plaintiff’s counsel, there was little more done by the plaintiff as it relates
to the Rule 18A application. These actions by the defendants were not
sufficient pursuant to Rule 66(8) to take this action out of Rule 66 of the
Rules of Court.

[27]        
In my view, in that decision the Master correctly decided the costs
issue which was before her. But, with all due respect, the existence of a
number of conflicts, or potential conflicts, between particular provisions of
R. 66 and R. 18A cannot bar the summary disposition, under R. 18A, of discrete
issues in R. 66 actions in all cases. To force a party who has elected R. 66 to
resolve all issues through trial, when those issues might be more efficiently
dealt with under R. 18A, would be contrary to the object of R. 66, as set out
in subrule 66(1), and to the object of the Rules of Court generally, as
set out in subrule 1(5). To the extent that disposition under R. 18A might have
costs consequences for a party to a R. 66 action, that is something best left
to the discretion of the court under subrule 66(29).

[28]        
The assertion of there being conflicts in the affidavits was without
substance. There are one or two instances of the plaintiff deposing in his
affidavit to matters that he could not recall on discovery, but those are
explicable on the basis that he had not, prior to the discovery, refreshed his
memory as to the content of the note made after the accident; and, defence
counsel was not in a position to cross-examine the plaintiff on the note’s
content, as it had not been disclosed, privilege having been – improperly – asserted
over it.

[29]        
As to the assertion that there are credibility issues raised by the
affidavits, I deal with this application on the basis that the plaintiff’s own
affidavit evidence as to the circumstances of the accident and its aftermath is
correct. If the plaintiff’s claim against ICBC can be shown to be unsound even
with the assumption that the plaintiff’s evidence is correct, then there is no
injustice in deciding this matter under R. 18A.

VI.      Ascertainment of Driver’s Identity

[30]        
ICBC’s onus as the applying party is to establish that the identity of
the other driver and owner are known or were ascertainable. ICBC relies
principally upon passages from two decisions. First, they cite the oft-quoted
passages from the judgment of our Court of Appeal in Leggett v. I.C.B.C.
(1992), 72 B.C.L.R. (2d) 201, 1992 CanLII 1263 concerning the purpose of s. 24:

9          The section provides a means by which a person who
has suffered injury or property damage in a motor vehicle accident may obtain
compensation from the government insurer even though the driver said to be at
fault, and the owner of the vehicle which was being driven by that person, are
insured in another jurisdiction or not insured at all, even though the
corporation will, in any event, be unable to look to the other driver for
assistance in resisting the claim, and even though the corporation will be
unable to obtain reimbursement in the event the other driver is uninsured or
there has been a policy breach, or to obtain contribution by way of increased
premiums through forfeiture of the other party’s ‘safe driving’ discount. As
the trial judge recognized, protection against fraudulent claims is only one of
the purposes of the requirement that the claimant show inability to identify
the other driver and owner as a condition of being able to claim under the
section. In my view the overall purpose of the section is to limit the exposure
of the corporation to claims brought by persons who, in the matter of seeking
to identify those responsible for the accident, have done everything they
reasonably could to protect what ordinarily would be their own interests, and
which, by virtue of the section, become the interests of the corporation.

10        The corporation’s exposure under the section is
limited to claims brought by those who could not have ascertained the
identity of the parties responsible. It does not, in my view, extend to claims
by those who have chosen not to do so.

(Emphasis in original).

[31]        
Also cited in support of ICBC’s position are the comments of Robinson J.
in Breton v. I.C.B.C. (1990), 47 C.C.L.I. 221 (B.C.S.C.) at para.10:

It surely must be that the words,
“are not ascertainable,” in [then] s.23(1)(a) of the Insurance (Motor
Vehicle) Act require an atmosphere of practical impossibility, for example,
in a hit-and-run accident or a wilful refusal by the alleged offending driver
to supply information, or an incapacity on the part of the driver of the
innocent vehicle, such as the plaintiff here.

Reliance is also placed upon Linhares v. I.C.B.C.
(1994), 98 B.C.L.R. (2d) 121, 1994 CanLII 2594 (C.A.), and Yuen v. Hinds,
1995 CanLII 2656 (B.C.S.C.).

[32]        
So, it is argued, assuming that the other driver was not “Donald Lee
Grove”, the present plaintiff’s passive acceptance of incorrect information
from the other driver did not discharge his obligation to have ascertained the
driver’s name. The plaintiff knew of the importance of reporting the accident
and obtaining correct information. Unlike those cases which are truly
“hit-and-run”, or where the other driver leaves the scene too quickly for
accurate information to be verified, this plaintiff spent 15 or 20 minutes with
the other driver, during which time accurate information could have been obtained.

[33]        
In response, the plaintiff contends – and I accept – that decisions
subsequent to Leggett have moderated this potentially harsh
interpretation of s. 24. In Smoluk v. I.C.B.C. (1993), 83 B.C.L.R.
(2d) 328, 1993 CanLII 2167 (B.C.C.A.), McEachern C.J.B.C. put the matter in
terms of an inquiry into whether the plaintiff had made a decision not to
pursue his or her rights. In Scott v. Davies, [1993] B.C.J. No. 1973, 1993
CanLII 791 (B.C.S.C.), Kirkpatrick J. considered Smoluk and allowed the plaintiff’s
claim to proceed because she had been given false information:

[17]  It appears that the standard required of a claimant is
not one of perfection. The plaintiff argues that she did not decide not to
pursue her rights. That assertion is, in my view, supported by the
evidence. There is no other logical conclusion to draw from her request of the
other driver that he provide his name, telephone number and licence number.

[18]   It is apparent that the plaintiff has a trusting
nature and was evidently "taken in" by the unknown driver’s
assurances. The question remains, however, whether the plaintiff took all
reasonable steps to ascertain the identity of the unknown driver or owner of
the other vehicle. Counsel for I.C.B.C. submits that the plaintiff, while the
opportunity was there, should have looked at the paper and should have
memorized or written down the licence number of the car parked in plain view in
front of her car.

[19]  My reading of both the Leggett
and Smoluk decisions suggests to me that "all reasonable
steps" must be assessed in the context of each individual case. The
plaintiff testified that, immediately after the accident, she was
"shaken-up" and "headachy". Nevertheless, she had the
presence of mind to know that the driver’s name, telephone number and licence
number was important information to obtain. I cannot find her conduct anything
but reasonable. She trusted the other driver to provide truthful information. It
is a rather sad commentary on current social morality that her trust would be
rewarded with such an obvious deception. Quite apart from that, however, the
plaintiff in my view, can reasonably expect that the information provided would
be full and accurate. She took active steps to obtain that information. 

[34]        
In my respectful view, the logic of Scott applies to the present
situation, regardless of whether I were to accept the plaintiff’s evidence of
having been in “shock” following the accident.

[35]        
Finally, in Likus v. I.C.B.C., [1996] B.C.J. No. 2224 (B.C.Prov.Ct.),
Grannary P.C.J. noted the provisions of the Motor Vehicle Act,
R.S.B.C. 1996,        c. 318, which require parties to an accident to remain at
the scene and produce their particulars to the other driver; it was held,
following Scott, that a driver is entitled to rely upon an unknown
driver to comply with his statutory duties.

[36]        
Therefore, on the evidence before me I find the plaintiff acted
reasonably in relying upon the other driver to provide full and accurate
particulars, when they met following the accident. If those particulars have
proven to be false or incorrect, such that reasonable efforts by his counsel to
identify the driver could not succeed, I would not hold that the failure to
take more active steps has disqualified this plaintiff from meeting the
requirement of s. 24(5).

[37]         
However, s. 24(5) is not engaged unless the plaintiff can first
establish that he has a cause of action against ICBC under s. 24(1), by
reason of the names of the driver and owner being unknown and unknowable: Linhares,
supra. On the evidence – and this is the fundamental point made on behalf
of ICBC – I cannot say that the driver’s name is not known. The address in
Grande Cache appears to have been false, the ING policy particulars may or may
not have been incorrect, and the plate number recorded by the plaintiff may
have been incorrect or incomplete. But “Donald Lee Grove” may possibly be the
defendant’s real name; the evidence, while it suggests that the other driver
may have fraudulently misrepresented himself completely, is inconclusive and without
better evidence I could not find on the balance of probabilities that this name
is false. It may very well be that further, adequate investigation might lead
to Donald Lee Grove’s identity being confirmed, and through him, the vehicle
owner being identified. Until an adequate investigation is undertaken and that
evidence has been produced, this is not an “unknown driver” case; it is simply
a case of a driver whose name appears to be known not having been located.

[38]        
Neither party, at this stage, is able to show whether or not the names
of both the owner and the driver of the vehicle are ascertainable. There is a
real possibility that a proper investigation may have been able to shed more
light on whether Donald Lee Grove is a real person, and for that reason I would
not grant judgment to ICBC on this ground. Likewise, I could not grant judgment
to the plaintiff. If ICBC had wished to put more definitive evidence before
this court in support of its application for summary judgment, it had the
option of undertaking an investigation of its own. A plaintiff whose counsel
has not undertaken a sufficient investigation before trial should not be
deprived of the opportunity to put better evidence before the court at trial.

VII.     Section 24(2) Notice Defence

[39]        
Section 24(2) provides that unidentified driver proceedings must not be
brought against ICBC unless the plaintiff gives written notice to ICBC as soon
as reasonably practicable and in any event within 6 months after the accident.
How is this statutory requirement to be applied to the present fact situation?
No written notice was served on ICBC prior to the Writ itself being served, and
that did not happen within six months of the accident. However, the plaintiff
had no reason, subjectively, to become aware of the possibility of this being
an unidentified driver situation until twelve months after the accident; given
that, does the discoverability rule apply? Once the plaintiff gained that
knowledge, ICBC was not immediately put on notice; did the plaintiff act as
soon as reasonably practicable? And what bearing, if any, does the question of
potential prejudice to ICBC arising from late notice, have on the application
of the statute?

[40]        
At the outset, I reject the plaintiff’s contention that I might resolve
these questions in the plaintiffs favour through recourse to the power to
relieve through forfeiture granted by s. 24 of the Law and Equity Act,
R.S.B.C. 1996, c. 253. That power does not apply to statutory forfeitures: see Can.
Nor. Ry Co. v. R., 64 SCR 264, [1923] 2 W.W.R. 836 [1923] 2 D.L.R. 693,
aff’d [1923] A.C. 714, as applied in Martin Mine Ltd. v. British Columbia
(1985), 62 B.C.L.R. 107, [1985] 4 W.W.R. 515 (B.C.C.A.) at paras. 20-22. I
also reject the contention that the power to relieve from forfeiture granted by
s. 10 of the Insurance Act applies: s. 3 of Part 2 of that Act
specifically states that Part 2 does not apply to vehicle insurance under
the Insurance (Vehicle) Act, and there is no provision analogous to
s. 10 in the latter.

[41]        
With respect to the discoverability issue, I adopt the following from
the decision of the Supreme Court of Canada in Peixeiro v. Haberman
[1997] 3 SCR 549, 1997 CanLII 325, 151 D.L.R. (4^th) 429 at paras. 36-39,
in which the Court considered whether the commencement of a two-year limitation
period under the Ontario Highway Traffic Act would be postponed until
the plaintiff met the threshold for tort liability – a function of the severity
of the injury sustained. In speaking for the Court, Major J. said:

[36]  Since this Court’s decisions in Kamloops (City of)
v. Nielsen, [1984] 2 S.C.R. 2, and Central Trust Co. v. Rafuse,
[1986] 2 S.C.R. 147, at p. 224, discoverability is a general rule applied
to avoid the injustice of precluding an action before the person is able to
raise it. See Sparham-Souter v. Town & Country Developments (Essex) Ltd.,
[1976] 1 Q.B. 858 (C.A.), at p. 868 per Lord Denning, M.R., citing Cartledge
v. E. Jopling & Sons Ltd., [[1963] A.C. 758 (H.L.)]:

It appears to me to be unreasonable
and unjustifiable in principle that a cause of action should he held to accrue
before it is possible to discover any injury and, therefore, before it is
possible to raise any action.

See also M. (K.) v. M. (H.), [[1992] 3 S.C.R. 6], at
p. 32, and Murphy v. Welsh, [[1993] 2 S.C.R. 1069], at pp. 1079-81.

[37]  In this regard, I adopt Twaddle J.A.’s statement in Fehr
v. Jacob (1993), 14 C.C.L.T. (2d) 200 (Man. C.A.), at p. 206, that the
discoverability rule is an interpretive tool for the construing of limitations
statutes which ought to be considered each time a limitations provision is in
issue:

In my opinion, the judge-made
discoverability rule is nothing more than a rule of construction. Whenever a
statute requires an action to be commenced within a specified time from the
happening of a specific event, the statutory language must be construed. When
time runs from “the accrual of the cause of action” or from some other event which
can be construed as occurring only when the injured party has knowledge of the
injury sustained, the judge-made discoverability rule applies. But, when time
runs from an event which clearly occurs without regard to the injured party’s
knowledge, the judge-made discoverability rule may not extend the period the
legislature has prescribed.

[38]  The appellant submitted here that the general rule of
discoverability was ousted because the legislature used the words “damages were
sustained”, rather than the date “when the cause of action arose”. It is
unlikely that by using the words “damages were sustained”, the legislature
intended that the determination of the starting point of the limitation period
should take place without regard to the injured party’s knowledge. It would
require clearer language to displace the general rule of discoverability. The
use of the phrase “damages were sustained” rather than “cause of action arose”,
in the context of the HTA, is a distinction without a difference. The
discoverability rule has been applied by this Court even to statutes of
limitation in which plain construction of the language used would appear to
exclude the operation of the rule. Kamloops, supra, dealt in part with
s. 739 of the Municipal Act, R.S.B.C. 1960, c. 255, which
required that notice should be given within two months “from and after the date
on which [the] damage was sustained”. However, this Court applied the
discoverability rule even with respect to this section; see Kamloops, supra,
at pp. 35-40.

[39]  I agree with the Court of
Appeal that to hold that the discoverability principle does not apply to
s. 206 HTA would unfairly preclude actions by plaintiffs unaware of
the existence of their cause of action. In balancing the defendant’s legitimate
interest in respecting limitations periods and the interest of the plaintiffs,
the fundamental unfairness of requiring a plaintiff to bring a cause of action
before he could reasonably have discovered that he had a cause of action is a
compelling consideration. The diligence rationale would not be undermined by
the application of the discoverability principle as it still requires
reasonable diligence by the plaintiff.

[42]        
ICBC argues that Peixeiro ought to be distinguished, on the
grounds that the triggering event under ss. 24(2), the accident, is – in
the words of Twaddle J.A. in Fehr – “an event which clearly occurs
without regard to the injured party’s knowledge”. I do not agree. The
“accident” referred to ss. 24(2) is, by implication, one involving an
unidentified driver or owner. The question of whether the driver has been
identified requires consideration of the plaintiff’s subjective state of mind.
To bar a claim on the basis of a plaintiff’s failure to have given notice of an
accident when there was no reasonable way for the plaintiff to know that the
other driver’s actual name had not been given would be “unreasonable and
unjustifiable in principle”. If that had been the legislature’s intention,
clearer words would have been required.

[43]        
I conclude on the evidence that the plaintiff’s obligation to provide
written notice to ICBC under s. 24(2) did not arise at the time of the
accident. However, as I have found, the negative vehicle plate search results
reported on June 5, 2008 must have led – quite reasonably – to the plaintiff
apprehending the potential for an unidentified driver claim; otherwise, there
is no explanation for the writ having been issued with pseudonymous defendants.
In the words of the Supreme Court of Canada in Peixeiro, at that point,
or very shortly thereafter, the plaintiff could reasonably have discovered that
he had a cause of action against ICBC. I therefore find the plaintiff did have
that obligation to notify ICBC as soon as reasonably practicable, within days
of June 5, 2008.

[44]        
The plaintiff argues that constructive notice of the claim was given thereafter
on September 4, 2008, when ICBC was contacted to determine if it had any
information regarding Mr. Grove. In my view, even if I could overlook the
statutory requirement that notice be in writing, this contact was nowhere close
to being sufficient to discharge the plaintiff’s obligation. There is no
evidence of any indication having been given to ICBC that an unidentified
driver claim might be pursued.

[45]        
The only notice, written or otherwise, given ICBC in this case was the
writ and statement of claim. I see nothing in the statute which precludes the pleadings
themselves serving as the required notice under ss. 24(2). The purpose of
the notice provision is to provide ICBC with sufficient opportunity to make its
own investigation of the other driver’s or owner’s identity: Stelmock v.
I.C.B.C. (1982), 42 B.C.L.R. 145 (S.C.) at para. 10; Goltzman v.
McKenzie (1989), 36 B.C.L.R. (2d) 228 (C.A.). Successful identification of
the driver or owner will lead to a tort claim, relieving ICBC from direct
liability. If those persons are insured by ICBC, it may eventually have to make
an indemnity payment on its assureds’ behalf, but may possibly then have the
potential of recouping some of its loss through adjustments to those assureds’
future premiums. In the case of an out-of-province driver, ICBC may of course
avoid liability altogether. Given the potential for fraud in cases of alleged
hit-and-run accidents, notice to ICBC will also enable it to investigate the
circumstances of the reported accident to determine if the plaintiff’s claim
has merit: Epp v. Harden Estate (1988), 24 B.C.L.R (2d) 89, 31 C.C.L.I.
229 (B.C.S.C.). These legislative purposes may be fulfilled through ICBC
receiving details of an accident through a writ, as opposed to discrete advance
notification that a claim will be made. And in my view the writ with its
attached statement of claim, in the present case, disclosed sufficient detail
that service on ICBC alone would have met the notice requirement, if it had
been done in a timely manner.

[46]        
This brings us to the real question in this case: whether ICBC received
notification of the claim, through the writ, within the time parameters given
in the statute. The writ was not served until April 2009, ten months after the
negative vehicle plate search. No explanation for this delay has been offered.

[47]        
In respect of interpreting the notice requirement, the plaintiff argues
that the legislative purpose behind the requirement is the same as that which
lies behind the two-month notice requirement to municipalities under s. 286
of the Local Government Act, R.S.B.C. 1996 c. 323: the prevention of
prejudice to the defence of a government body. It is argued that this court
should direct its inquiry into whether ICBC has been prejudiced by the late
notification; the logic of that argument is that ICBC cannot be presumed to have
been prejudiced, when the trail left by “Mr. Grove” would already have
gone cold by the time the plaintiff ought to have realized this was an
unidentified driver case. The notice provisions of the two statutes are,
however, entirely different. Under the Local Government Act, there is a
blanket requirement that notice of claims falling within the ambit of s. 286
be delivered within two months, but subsection (3) specifically provides that
the failure to give notice, or sufficient notice, is not a bar to maintaining
an action if the court believes (a) there was reasonable excuse, and (b) the
municipality has suffered no prejudice. In contrast, under the Insurance
(Vehicle) Act’s s.24, the obligation is to give notice as soon as
reasonably practicable, and in any event – meaning, whether reasonably
practicable or not – within six months.

[48]        
If the prevention of prejudice could be said to be the dominant purpose
of the notice requirement, it would appear that the legislature has either deemed
there to be prejudice after six months has elapsed, or has otherwise
determined, as a matter of policy, that ICBC’s exposure to such claims ought to
be capped at that point. To subject that provision to an overarching, implied
test involving the finding of real prejudice would be tantamount to rewriting
the statute. The most that could be said is that a consideration of prejudice
might, in certain circumstances, be implied by the qualifier “reasonably”. But
even so, that cannot assist the plaintiff in the present case, when notice was
not given to ICBC until long after the six-month period had lapsed.

VIII.    Conclusion

[49]        
ICBC was not notified of this claim within six months of when the
plaintiff could reasonably have discovered that he had a cause of action
against ICBC. The claim against ICBC is therefore dismissed. The parties are at
liberty to make written submissions as to costs.

“A.
Saunders, J.”
The Honourable Mr. Justice Saunders