IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120813

Docket: M105930

Registry:
Vancouver

Between:

Ashley Springer

Plaintiff

And

Po Ngo Kee, Gareth
Lou Kee,

Insurance Corporation
of British Columbia, and

John and/or Jane
Doe

Defendants

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

[1]          
On December 12, 2008, the plaintiff, Ashley Springer, and the defendant Po
Ngo Kee (Ms. Kee) were driving eastbound on Sprott Street in Burnaby at about
5:30 p.m. As the parties neared an upcoming intersection, the traffic in front
came to a halt. The plaintiff stopped and as the defendant was slowing down,
her car was struck from behind and pushed underneath the back of the plaintiff’s
car.

[2]          
Ms. Kee was driving a 2003 Hyundai owned by the defendant Gareth Lou Kee
(Mr. Kee). I will refer to them collectively as “the Kees”.

[3]          
The identity of the owner/driver of the car that struck the back of the Kees’
car remains unknown to the parties.

[4]          
Mr. Springer sued the Kees, and John and/or Jane Doe in negligence for
having caused the accident. John and/or Jane Doe are the unidentified owner/driver
of the vehicle that struck Ms. Kee’s vehicle. The Insurance Corporation of
British Columbia (“ICBC”) is sued as the nominal defendant under s. 24 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231[Act].

[5]          
The Kees and ICBC jointly brought an application that the proceedings be
dismissed against them and want a summary determination of the issue of
liability. They also asked for costs of the application to be payable by the
plaintiff.

[6]          
The plaintiff recognizes that there is no evidence that the collision
was caused by the negligence of Ms. Kee.

[7]          
The issue on this summary trial is whether ICBC is liable for the plaintiff’s
damages under s. 24 of the Act. ICBC alleges that the plaintiff is not
entitled to judgment because he did not meet the requirements of s. 24(5) of
the Act in that he failed to take all reasonable efforts to ascertain
the identity of the unknown owner/driver.

[8]          
ICBC abandoned the second ground of the application that Mr. Springer
did not give sufficient written notice of the accident to ICBC under s.24 (2)
of the Act.

Facts

[9]          
 The accident happened at approximately 5:30 p.m. on December 12, 2008
when the parties were driving eastbound on Sprott Street heading to their
respective homes. It was dark and as a result raining. The defendant Ms. Kee
traveling alone in her 2003 Hyundai. The plaintiff was also alone and was
traveling in a Nissan Pathfinder.

[10]       
Sprott Street is a two lane road (one lane in each direction) running
east and west. It crosses over the Trans Canada Highway.

[11]       
The plaintiff was traveling east on Sprott Street and came to a complete
stop behind other vehicles at a red light at the intersection of Sprott Street
and Norland Avenue. The defendant’s Hyundai was slowing behind the plaintiff
when it was struck from behind and pushed underneath the plaintiff’s Nissan. After
the collision, the plaintiff was in shock and remained in his vehicle for
approximately one minute.

[12]       
The plaintiff then got out of his vehicle and observed the Ms. Kee standing
beside her vehicle. He noticed that Ms. Kee’s vehicle was pinned underneath his
rear bumper. The plaintiff spoke to Ms. Kee and observed that she seemed
agitated, nervous and concerned. She told him that someone had hit her from
behind and pushed her vehicle into his. Mr. Springer did not see another
vehicle touching or impacting Ms. Kee’s vehicle. There was traffic stopped
behind Ms. Kee’s car and he did not recall seeing any vehicles passing their
vehicles.

[13]       
In the course of their conversation, Ms. Kee directed the plaintiff’s
attention to a man looking at a vehicle east of the Norland intersection which
was some distance from where they stood. Neither of them could clearly see the
vehicle or the person beside it because of darkness. Mr. Springer had no
information as to whether this vehicle in the distance was the one that had
struck Ms. Kee’s car. Ms. Kee could not see well because it was dark and her
glasses were fogged up.

[14]       
Mr. Springer and Ms. Kee eventually pulled their vehicles off to the
side of Sprott Street to allow other vehicles stopped behind them to pass.
These cars had been unable to pass because the parties’ vehicles were blocking
the eastbound lane.

[15]       
Mr. Springer called 911 and a police officer attended. Ms. Kee informed the
officer that she had been struck from behind by an unidentified vehicle and
pushed into the plaintiff’s car. Mr. Springer could not recall if he had
informed the police officer that Ms. Kee had been struck by an unidentified
motorist.

[16]       
There were several cars stopped on Sprott Street behind Ms. Kee’s car. Mr.
Springer did not approach any of the drivers in these vehicles to determine if
they had witnessed the accident or had any information that might identify the
owner or driver of that car.

[17]       
Photographs of the scene of the accident and surrounding area were
produced. The evidence was uncertain as to the precise location where the
accident occurred; it was described to me in reference to a photograph of the
area, to have happened 12 to 15 car lengths west of the intersection with Norland
Avenue. There is a large building with an extensive parking lot facing both roads
at the northeast of the intersection between Sprott Street and Norland Avenue;
I was told that this was an ice arena.

[18]       
There was a pedestrian crosswalk across Sprott Street at Norland Avenue,
a sidewalk along the south side of Sprott Street, a sidewalk on the north side
of Sprott Street east of Norland Avenue and a sidewalk on the east side of
Norland Avenue.

[19]       
On December 23, 2008, eleven days after the collision, Mr. Springer
attended an appointment with an ICBC adjuster, Maria Estrada. At that meeting,
he told Ms. Estrada he was stopped at a traffic light with two or three cars in
front of him when he was hit from behind. He told the adjuster that Ms. Kee had
told him she had been hit from behind and pushed into his vehicle. He observed
minimal damage to Ms. Kee’s car. He answered other questions and gave a written
statement that included information about the involvement of the unidentified
car.

[20]       
At the conclusion of this interview, Mr. Springer was given a document
by Ms. Estrada which contained the following:

What Mr. Springer Needs To Do:

Call me when you have returned to work.

Submit your prescription receipts for consideration.

Submit your user fees for consideration.

Call me if you have any questions.

Please contact adjuster with the name of the medical clinic you
attended in Surrey.

What Maria Estrada needs to do:

I will keep you informed of events as changes take place.

I will order the police report.

Investigate and resolve liability.

I will inform you once liability has been resolved. It will
waive or reimburse your deductible.

I will contact you within one
month to see how you are doing and will make an offer to settle your claim
within 90 days.

[21]       
Ms. Estrada deposed that she confirmed that Ms. Kee’s vehicle showed
rear end damages that were likely accident related. She gave Mr. Springer “a
hit and run claim at that point, subject to his deductible”. She also gave him
a pamphlet entitled “Helping You with Your Hit and Run Claim”. In this
document, the recipient is advised to take all reasonable steps to identify the
motorist who fail to stop. The context of this comment is coupled with advice
to report the matter to the police and to I CBC. The pamphlet does not mention
the reason why the recipient should take steps to identify the other motorist;
it could be construed as advising that reporting to the police and I CBC were
sufficient steps. The document does not go that far but it does not alert the
insured to the importance of taking the type of steps ICBC now alleges were necessary.

[22]       
Ms. Estrada did not advise Mr. Springer of the details of s. 24(5) of
the Act that might affect his claim. She did not provide him with any
information or guidance indicating his obligations to take actions to identify
the driver or owner of the vehicle that hit Ms. Kee. He understood that ICBC
was going to investigate the issue of liability. The first time he became aware
that ICBC denied liability because he failed to take reasonable steps to
identify the negligent driver was when he received ICBC’s response to notice of
civil claim.

[23]       
At various times after his first contact with Ms. Estrada, she called
him to inquire about the possibility of settling his claim. He had ongoing
symptoms and developed tingling in his left arm and was scheduled for a CT scan
that was performed in December 2009. In mid-November 2010, Ms. Estrada
contacted Mr. Springer for an update and he told her that his doctor had
recommended waiting six months to see if the symptoms improved. She informed
Mr. Springer that he had a two-year limitation within which to file a writ of
summons in order to preserve his claim for damages.

[24]       
He had a further conversation with another ICBC representative to
discuss the process of protecting himself; this representative explained the
requirement that he commence a proceeding before December 12, 2010 and offered
to meet Mr. Springer with a view to resolve his claim before that date. The
plaintiff said he could not consider settling at the time because he was unsure
whether he might require surgery in the future.

[25]       
As part of the ICBC internal process, they flagged the Springer/Kee
accident as one involving an unidentified vehicle or hit-and-run. Ms. Estrada
testified that it was her normal practice to inform an insured about the
requirements to take further steps to identify an unknown motorist or owner and
included that information in the CL 398 form. However, on this occasion, she
did not explain to Mr. Springer that he had additional obligations under s. 24(5)
of the Act.

[26]       
Ms. Estrada was under the impression that the plaintiff had satisfied
all of the requirements under s. 24(5). I highlight an exchange that occurred
during her cross-examination (transcript at p. 45, lines 31-45):

Q.        Taking you
back to the May 2008 claims manual,

 Exhibit
2. Under the introduction, partway down

 the
page, it says things to keep in mind when

 you’re
dealing with a hit and run accident.

All reasonable efforts must be made to

ascertain the identity pursuant to
section

24.5 of the Insurance (Vehicle) Act.

And you’ll agree with me that when you
provided

Mr. Springer with his hit and run
claim you were

satisfied that he had fulfilled that
requirement;

correct?

A.         Yes.

[27]       
Ms. Estrada was satisfied that there were no witnesses she could contact
to get more information about the accident. The only steps taken by ICBC to
identify the owner or driver of the hit-and-run vehicle were the reviews of the
information provided by the parties.

[28]       
ICBC had accepted Mr. Springer’s claim as a hit and run, but Ms. Estrada
was not aware at the time of the interview with Mr. Springer that there was a
line of vehicles stopped behind the parties after the collision.

[29]       
Mr. Springer did not take any steps to identify the driver of the
vehicle that struck Ms. Kee or to locate any potential witnesses to the
accident at any time after the collision. At his examination for discovery, he
gave this reason for not taking steps to identify the motorist.

272      Q:        Why
is it that you did not take any steps to

 post
signs, place advertisements or try to locate

 the
driver?

 A:         Simple.
The vehicle struck me from behind, and

 that’s
the person I dealt with at the time.

275      Q:        But
following this state, knowing the position of

 Ms.
Kee, why would you not have sought or tried to

 determine
or locate any witnesses?

 A:         I
don’t know how I could have done that.

Issues

[30]       
During the argument, the plaintiff acknowledged that there is no
evidence pointing to a breach of Ms. Kee’s duty of care to him and no
foundation for finding her liable for his injuries.

[31]       
In its submissions, ICBC abandoned its argument that Mr. Springer had
failed to provide notice under s. 24(2) of the Act.

[32]       
The remaining issue to be resolved is:

i.          Did
Mr. Springer make all reasonable efforts to ascertain the identity of the
unknown owner/driver; and

ii.         Is the
identity of those persons or that person ascertainable?

The Defendant’s Position

[33]       
The defendant argues that Mr. Springer failed to comply with s. 24(5)
because he took no steps to obtain information from other motorists at the
scene of the accident who might have observed the license plate number of the
vehicle that struck Ms. Kee. Further, ICBC argues that in the months after the
accident, Mr. Springer took no steps to follow up with the police, advertise in
local newspapers or to post signs in and about the location of the collision in
an effort to find witnesses.

[34]       
His failure to follow up with the police and the absence of efforts at
the usual steps of posting notices and advertising in the newspaper
demonstrates a deliberate failure to comply with s. 24(5) and he is not
entitled to judgment.

The Plaintiff’s Position

[35]       
The plaintiff argues that in the circumstances of this collision he
should be excused from his failure to approach witnesses in the cars behind Ms.
Kee’s car after the collision. He argues that he took all reasonable steps at
the scene of the accident and that it would have been unreasonable to leave the
scene of the accident to pursue the suspect driver.

[36]       
Mr. Springer argues that he took all reasonable steps to identify the
owner/driver of the unidentified vehicle. He reported the claim to the police
and to ICBC. He argues that it was not unreasonable for him to rely on their
efforts to find the suspect owner/driver. Mr. Springer says that the accident
occurred in a place where there were no buildings or premises at which he might
have solicited information. He said there were no roadside areas where a sign
could effectively attract the attention of passing traffic.

[37]       
It was unlikely that the unidentified motorist him or herself would
answer an advertisement in a newspaper or respond to a roadside sign. The prospect
of success coming from that type of advertising effort was minimal; this would
render those steps unreasonable.

[38]       
Mr. Springer also argues that it would be inequitable to permit ICBC to
deny the claim two years after his initial report to them during which time he
was induced to believe that his claim was accepted.

[39]       
ICBC failed to follow its own internal policies and failed to inform him
of the requirements of s. 24(5) of the Act.

[40]       
Mr. Springer argues that ICBC accepted his claim early in the process
and this acceptance reflected compliance with ss. 24(2) and 24(5). He said that
ICBC had acknowledged that he had made all reasonable efforts to identify the
unidentified motorist and his claim cannot now be barred by reason of failure to
take further measures to comply with s. 24(5) of the Act.

Analysis

Suitability of Summary Trial

[41]       
The plaintiff argued that if conflicts in the evidence were sufficiently
important to the issues, I should decline to give judgment at this summary
trial. The plaintiff referred to five facts on which the plaintiff and the
defendant Kee differed. They included whether Mr Springer’s vehicle was
completely stopped before the collision, the number of lanes on Sprott Street,
whether the unidentified vehicle passed by at the scene, which of the two
parties pointed to the vehicle stopped on Norland Avenue, and the timing of the
conversations relating to the vehicle stopped on Norland Avenue.

[42]       
None of these factors significantly impact analysis of the issues in
this case. I have been able to find the facts necessary to decide the issues
based on the materials and without relying on those disputed facts.

[43]       
I am satisfied that the issues presented on this application are
suitable to be determined on a summary trial (Ferrier v. Johnscross
Properties (B.C.) Ltd., 2010 BCSC 492 at paras. 13-15).

Section 24 of the Insurance (Vehicle) Act

[44]       
The remaining issue on this application is whether Mr. Springer
discharged the burden of proof outlined in s. 24(5) of the Act. I
include the pertinent subsections of s. 24 of the Act below:

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,

any person who has a cause of
action

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

(d)        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, either alone or
as a defendant with others alleged to be responsible for the injury, death or
property damage, but in an action in which the names of both the owner and the
driver of the vehicle are not known or ascertainable, recovery for property
damage is limited to the amount by which the damages exceed the prescribed
amount.

(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.

(3)        If, after an action referred to in subsection (1)
has been commenced, it is alleged that the injury, death or property damage was
caused or contributed to by another vehicle, but

(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,

the corporation may be added as a nominal defendant on the
application of any party and must be added as a nominal defendant on its own
application.

(4)        In an action against the corporation as nominal
defendant, the corporation may deny generally the allegations in respect of the
unidentified vehicle and its owner and driver, and need not set out the facts
on which it relies.

(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.

(6)        If the identity of the unknown owner or driver is
ascertained before judgment is granted in an action against the insurer as
nominal defendant, then, despite the limitation period in the Motor Vehicle
Act, that owner or driver must be added as a defendant in the action in
substitution for the corporation, subject to the conditions the court may
specify.

(7)        The corporation may,
at any stage, compromise and settle the claim of a person entitled to commence
an action under this section.

[45]       
The analysis of this claim is guided by the Court of Appeal decision in Leggett
v. Insurance Corp. of British Columbia (1992), 72 B.C.L.R. (2d) 201 (C.A.),
setting out the policy behind s. 24 of the Act:

[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.

[Emphasis
added.]

[46]       
The question is whether Mr. Springer’s efforts can be construed as doing
everything reasonable to protect what ordinarily would be his own interest in
identifying the unidentified owner/driver.

[47]       
In Leggett, the Court said:

[11] I do not think the words
"not ascertainable" should be strictly interpreted, so as to mean
"could not possibly have been ascertained". I think they are to be
interpreted with reference to subs. (5) so as to mean "could not have been
ascertained had the claimant made all reasonable efforts, having regard to the
claimant’s position, to discover them".

[48]       
The plaintiff’s duty is to make all reasonable efforts to identify the
other party involved in the collision. This is a continuing obligation that
first arises at the scene of the collision and continues for a reasonable time
after.

[49]       
The interpretation of “reasonableness” in the context of this section is
measured by whether Mr. Springer did everything he reasonably could have done
to protect what would ordinarily be his interest if ICBC was not involved in
funding the claim (Leggett, at paras. 9 and 13).

[50]       
The assessment of his efforts focuses on steps that are “logical,
sensible, and fair” but not “absurd, whimsical or unwarranted” (see Slezak
v. ICBC, 2003 BCSC 1679 at para. 40). The plaintiff is not required to take
steps that are “highly unlikely” to produce any result (Liao v. Doe,
2005 BCSC 431 at para. 14; Goncalves v. Doe, 2010 BCSC
1241 at para. 10).

[51]       
The plaintiff’s efforts do not require him to turn over every stone.

[52]       
Mr. Springer’s failure to take steps to identify the unknown driver at
the scene is an impediment to the court granting judgment for the statutory
benefits otherwise recoverable under the Act (Morris v. Doe, 2011
BCSC 253; Tessier v. Vancouver (City), 2002 BCSC 1938).

[53]       
The defendant says that Podowski v. Insurance Corp. of British
Columbia (26 October 1993), Vancouver B906267 (B.C.S.C.), is a case with
similar features to Mr. Springer’s claim. In Podowski, the plaintiff
vehicle was struck on the right front corner while driving on the Georgia Viaduct.
The plaintiff’s vehicle struck a wall. There were vehicles waiting behind her when
she got out of her car; she did not speak to any of those motorists and
explained that omission due to being flustered and upset. The police advised
the plaintiff to put up notices at the T-shirt shop on Main Street to advertise
for witnesses to the collision. She did not do so because she did not think it
would help to determine the identity of the other driver. She attended ICBC and
reported the claim as a hit-and-run accident. ICBC did not believe that the
collision had been caused by an unidentified motorist. Smith J. said:

[24]      Like Mr. Johal, the plaintiff here made no efforts
to find witnesses at the scene of the incident. Unlike Mr. Johal, she put no
advertisement in any newspaper to attempt to locate witnesses. It is true that
the Chief Justice placed some weight on Mr. Johal’s delay in reporting the
matter to the police, while here the plaintiff reported the matter to the
police the next day. However, she was told by the police that she should place
notices near the scene and should advertise to try to find witnesses, but
failed to do either.

[25]      In all the
circumstances I am not satisfied that the plaintiff has made "all
reasonable efforts" and I must dismiss the action.

[54]       
In Becker v. Insurance Corp. of British Columbia, 2002 BCSC 1106,
the court concluded that the plaintiff had chosen not to attempt to ascertain
the identity of the driver. In Becker, the court found that the
plaintiff, having reported his accident to the RCMP, placed all his reliance on
them to locate the unidentified motorist. Burnyeat J. discussed other
authorities that had concluded it was reasonable for the plaintiffs to have
relied on the efforts of the police to obtain the information which was
required; but in the case before him, the plaintiff had made no attempts to
ascertain whether the police were undertaking any investigation at all. He
concluded it was not reasonable for Mr. Becker to have no contact with the police
for almost 14 months after the accident.

[55]       
Justice Burnyeat accepted that Mr. Becker could not be faulted for
failing to obtain details at the scene from people who witnessed the accident
but, in the end, concluded that his failure to promptly contact witnesses known
to the police and leaving the matter entirely in the hands of the police was
not reasonable.

[56]       
In Tessier, the court concluded that the failure of the ICBC
adjuster to advise the plaintiff that other steps were necessary to ascertain
the identity of a driver did not relieve the plaintiff of the obligation to
take all reasonable steps. The court said at para. 21:

[21]      … In saying that I
would not for a moment impose an obligation on the Insurance Corporation of
British Columbia to advise someone as to how they might discharge the
obligation of section 24(5). … Counsel for the Insurance Corporation quite
rightly points out that there is no obligation on the Insurance Company’s
employees to do that.

[57]       
ICBC argues that the plaintiff took no steps to identify the motorist
who struck Ms. Kee’s car at the scene; he did not post notices in the vicinity
of the accident; he did not advertise in the newspapers; and does not appear to
have followed up with the police. As a result, the defendant argues that the plaintiff
cannot satisfy me that he made all reasonable efforts to ascertain the identity
of the unknown driver. Further, the defendant says that the plaintiff cannot
rely on the comments or representations of Ms. Estrada for the reasons set out
in Tessier. Moreover, the defendant argues that when Ms. Estrada offered
a settlement of the claim, she was doing so under the statutory authority (s.
24(7) of the Act) to settle claims involving unidentified motorists.

[58]       
The defense also argues that if Ms. Estrada had been aware that there
were witnesses to the accident then she would not have accepted that there was
nothing further Mr. Springer could have done to identify the owner or driver of
the car.

[59]       
The plaintiff must be resolute and resourceful in undertaking the
ongoing obligation to ascertain the identity of the unknown owner/driver. The
plaintiff’s obligation to make reasonable efforts exists in the immediate
aftermath of the collision and extends over days and possibly weeks (see Slezak,
supra).

[60]       
ICBC relies on the characterization of the obligation in Nelson
v. Insurance Corp. of British Columbia, 2003 BCSC 121, where Goepel J.
held:

[17]      The onus is on the
plaintiff to establish that she made all reasonable efforts to establish the
identity of the driver.  Although each case must be decided on its own
facts, the authorities indicate that the onus is not one easily displaced, even
in circumstances in which the unidentified vehicle has fled the scene.

[61]       
Goepel J. also notes, at para. 18, that the plaintiff is under a
continuing obligation following an accident to use all reasonable efforts to
ascertain the identity of the driver.

[62]       
In Becker, the plaintiff left the investigation of an accident
with the police without ascertaining if they were in fact investigating the
matter. The police had abandoned the investigation. Buryneat J. held:

[17]… The Act does not put the responsibility to find the
driver on the police. Rather, the responsibility is on Mr. Becker.

[18]      It was not reasonable
for Mr. Becker to have no contact with the R.C.M.P. until almost 14 months
after the accident. Without the knowledge that the police were actually
attempting to locate the driver, it cannot be said that there was reliance on
the police. If a party wishes to rely on the police to undertake the
investigations which are his or her responsibility, it is incumbent upon a
plaintiff to monitor the efforts that are being made so that their own efforts
can come into play if the police have been unsuccessful.

[63]       
In Hough v. Doe,  2006 BCSC 1450, Bernard J. discussed what might
constitute reasonable efforts in relation to an accident at a busy
intersection:

[24]      In my view a proper
determination of the efforts which might reasonably lead to discovering the
identity of the unknown driver or owner must be made with due regard for the
location where the collision occurred and the circumstances in which the
collision occurred. For example, a collision which occurs at busy community
intersection of a well-populated area on a weekday at 8:30 a.m., in relatively
slow-moving traffic, might be witnessed by many people who: (1) pass by that
intersection at a similar time daily by vehicle or on foot; (2) might have
recognized the car or driver in question, or noted the licence plate number;
and (3) who might respond to a canvass, posting, or advertisement with
information leading to the identity of the owner or driver.

[64]       
In Tessier, Barrow J. held at para. 19:

[19]      In my view, it would
be rare to find circumstances in which simply notifying the police was
sufficient to satisfy the requirements of section 24(5) and, in any event, this
is not one of those cases. The accident occurred across the street from an
industrial complex. It is not pure speculation to conclude that someone or some
people within that facility may have witnessed the accident. At least one
person came, apparently from that facility, and assisted at the scene. That
person remains unidentified. Posting of a notice at the mill or seeking the
mill’s assistance in canvassing its employees may well have led to the
identification of that witness or the identification of other witnesses. Doing so
would not be prohibitively expensive, nor could it be described as a whimsical,
absurd or unwarranted effort. Indeed, it seems to be a logical, sensible, and
fair requirement. There may well be other steps which might have been taken
such as advertising in the newspaper or posting notices in the vicinity.

[65]       
Mr. Springer argued that in the days after the accident it would not
have been reasonable for him to take some steps other than reporting the claim
to ICBC. He argued that the circumstances in and about the area of the
collision made it unreasonable for him to post signs, advertising, newspapers,
or revisit the area to search for potential witnesses.

[66]       
I have observed that there was a crosswalk across Sprott Street at
Norland Avenue, a sidewalk along the south side of Sprott Street, a sidewalk on
the north side of Sprott Street east of Norland Avenue and a sidewalk on the east
side of Norland Avenue. There was a large complex with a parking lot adjacent
to the northeast of the intersection. There were stoplights at the intersection
with Norland Avenue (two to three car lengths ahead of Mr. Springer when the
collision happened) and heavy traffic eastbound during parts of the day.

[67]       
The analysis of circumstances by Bernard J. in Hough is helpful
in the context of Mr. Springer’s submissions. This accident was on a route
traveled regularly by Mr. Springer and many others and likely at the same time
in the evening. Mr. Springer offered no explanation as to why signs could not
have been posted on the side of the road or at the intersection or why such
signs would have been unlikely to attract attention. There was a paucity of
evidence about the availability of advertising options or newspapers
circulating in the area. Mr. Springer attempted to diminish the prospects of finding
witnesses in the area; I am not satisfied that it would have been unreasonable,
whimsical, absurd or unwarranted to post a sign on the side of the road or to
advertise in a local newspaper.

[68]       
This is not a divided highway or fast-moving roadway. In Slezak,
the accident occurred on a high-speed, divided highway in a location where
pedestrians or motorists would not likely read or act on the notice. In any
event, in Slezak, the plaintiff posted an ad in the newspaper. The facts
of the case at bar are dramatically different.

[69]       
In Morris, Ker J. provided a thorough summary of the
authorities on the assessment of reasonable efforts contemplated by s. 24(5) of
the Act. Her conclusion is apposite to the facts in this case:

[70]      Counsel for the
plaintiff argues that the failure to post signs or advertisements is not fatal
as in this case there were no such witnesses who reasonably existed who could
have provided the information and no target audience who could contribute
anything more than that offered by Mr. Gordon. This argument, however, is
entirely speculative. While signage or advertising might possibly not have
produced any further information, it is equally likely that such steps may well
have elicited some helpful information. Mr. and Mrs. Morris and Mr. Gordon all
acknowledged that there was traffic in the area at the time of the accident and
so there was a potential source of witnesses. There is nothing to suggest that
efforts to seek out witnesses around the time of the accident would have been
fruitless. It is this failure to take the steps to try and obtain the
information in the days and weeks after the accident that is fatal to the
plaintiff’s case.

[70]       
Mr. Springer did not make any other effort to identify the man looking
at a vehicle east of the Norland intersection which was some distance from
where they stood a few moments after the collision; it is clear to me from the
evidence that it was completely impractical in the circumstances, including the
weather, lighting conditions, traffic and location of the accident, for him to
make that inquiry at that time.

[71]       
While I have sympathy to the plaintiff’s plight in this case, the answer
lies in part in s.24(7) of the Act, which confers on ICBC the power to
“at any stage, compromise and settle the claim of a person entitled to commence
an action under this section”. Subsection 24(2) provides that a person who does
not give notice to the corporation within six months after the accident is not
entitled to bring an action against the corporation. The distinction is that
these two sections set the rules for dealing with a claim for compensation
allowing ICBC to settle a claim if the claimant has given notice. However, s.
24(5) is directed at the court and restricts the court’s power: “judgment against
the corporation must not be given unless the court is satisfied that” all
reasonable steps have been taken to identify the negligent motorist.

[72]       
This distinction is important because ICBC’s conversations with the
claimant about settling the claim are authorized under s. 24(7) because he was
a person “entitled to bring a proceeding”. In spite of this, if settlement fails,
then judgment cannot be given unless the claimant has discharged his burden of
proof under s. 24(5).

[73]       
Ker J. further explains in Morris at para. 51 and 54:

[51]      While one of the purposes of s. 24(5) is to protect
against the potential for fraudulent claims, that is not its sole purpose. Its
broader purpose is to protect those who have done everything they reasonably
could to protect what ordinarily would be their own interests. What constitutes
all reasonable steps as contemplated by s. 24(5) of the Act must be
determined in light of the purpose of the section and the circumstances of the
particular case. The test which emerges from the purpose of the section was
stated by Taylor, J.A. in Leggett at page 206 [para. 13] as follows:

… whether the claimants had
"pursued the investigation to identify the vehicle and its owner and
driver as resolutely and resourcefully as they would have done in like
circumstances" had there been no such provision. In order
to accommodate the current statutory requirement in the present context, I
would add, after the words "would have done in like circumstances,"
the words "if the claimant intended to pursue any right of action which he
or she might have arising out of the accident."

 …

[54]      Two specific time periods are
relevant under the s. 24(5) inquiry: the time of the accident and the days or
weeks following the accident. If reasonable efforts could not be made at the
time of the accident, e.g. due to shock or injury; a belief that the party
has not sustained any injury; or the driver fled the scene before
information could reasonably be obtained, the court examines the steps taken by
the plaintiff to ascertain the identity of the negligent driver in the days or
weeks following the accident. What constitutes all reasonable efforts is a
factual issue decided on a case by case basis.

[Emphasis added.]

[74]       
An examination of the jurisprudence on what
constitutes reasonable efforts was summarized by Ker J. in Morris at
para. 55:

i.          posting signs in the area of the
accident and/or advertising in local newspapers in an effort to find witnesses
within a reasonable time after the accident where the accident occurs at a busy
intersection is a reasonable and expected step as it is possible that someone
present at the time of the accident could be of assistance in ascertaining the
identity of the driver of the vehicle that left the scene: Johal v. ICBC (1992),
9 C.C. L.I. (2d) 172 [Johal]; Fan v. Doe, 2009 BCSC 568 [Fan];
Nelson at paras. 21-22; Godara at paras. 51-54; Tessier at
para. 17; Halfyard v. ICBC (1993), 26 C.C.L.I.
(2d) 320 [Halfyard];

j.          failing to post signs at the scene of the
accident or place advertisements in the newspaper in a timely manner or in a
manner that provides insufficient detail where it is possible that there were
potential witnesses who may have information about the accident will result in
a denial of coverage under s. 24 of the Act: Johal; Fan; Burley;
Becker; Nelson at paras. 21-22; Jennings v. ICBC, 2002 BCSC 341;

k.         repeatedly canvassing regular patrons of the
business where the plaintiff’s vehicle was damaged in the parking lot of the
business may constitute reasonable steps to ascertain the identity of the
driver: Janzen v. Insurance Corporation of British Columbia, 2004 BCPC
437;

l.          posting signs and
advertising in local newspapers may not be a reasonable step where the accident
occurs on a high speed area of highway or a on highway in an area that is
undeveloped and sparsely populated: Hough at para. 24; Goncalves
at para. 16-21;

[75]       
It is also important to keep in mind the words of Barrow J. in Tessier
v. Vancouver (City), 2002 BCSC 1938:

[17]      Turning to the circumstances of this case, I am
satisfied that this is not a case in which there is a risk of fraud. In Johal
v. Insurance Corporation of British Columbia, [1992] B.C.J. No. 1169,
it is suggested that the approach to “all reasonable efforts” might be relaxed
when that is not the case. That is to say, when the risk of fraud is not
present. Esson, C.J.S.C., as he then was, noted the test “should not be
made so exacting that it cannot be met”.

[Emphasis
added.]

[76]       
Similar to Tessier, the case at bar does not seem to involve a
risk of fraud and, therefore, the approach to “all reasonable efforts”, as
demanded by s. 24(5) of the Act might be relaxed.

[77]       
I now turn to looking at the two specific time periods that are
relevant under the s. 24(5) inquiry: the time of the accident
and the days or weeks following the accident. First, based on the evidence
tendered, it seems that the plaintiff made all reasonable efforts at the time
of the accident.

[78]       
The plaintiff was rear-ended by a car which was
itself rear-ended by the hit and run vehicle. After impact, the plaintiff got
out of the car to speak to the driver directly behind him, since he was under
the impression that those two vehicles were the only two involved in the
collision. By the time the plaintiff got out of the car to speak to Ms. Kee, the
driver behind him, the hit and run vehicle had left and was out of sight. The
plaintiff only learned that Ms. Kee had been struck from behind by a hit and run
driver during their conversation. The two vehicles pulled over to the side of
Sprott Street to exchange personal and license information and allow vehicles
lined up behind them to pass. They did not approach the drivers of those
vehicles as by that time it was too late for him to take any further steps at
the scene of the accident; no witnesses pulled over to offer assistance.

[79]       
This case is different from that of previous hit
and run cases since the collision here was not directly in between the
plaintiff and the unknown driver, but involved another driver, sandwiched in
between the two. Thus, the plaintiff rightly concerned himself primarily with
the direct impact with his vehicle at the scene of the accident. As mentioned
above, the plaintiff took all reasonable steps at the time of the accident.
Since the plaintiff turned to ICBC in good faith and there is no element of
fraud, I am not required to be so exacting in the application of the test under
s. 24(5) of the Act. On the basis of the relaxed standard, Mr.
Springer’s actions at the scene of the accident were, in my view, reasonable.

[80]       
Next, I must examine the plaintiff’s actions in
the days and weeks following the accident. The plaintiff attended soon after
the event at the Insurance Corporation of British Columbia to report the
accident and make a claim in good faith. As I have observed, there is no evidence
of the claim being fraudulent. At the first meeting, on December 23, 2008, the
adjuster told him she “hoped we could resolve” his claim when he was feeling
better. It seems that the plaintiff was waiting on the medical reports before settlement.

[81]       
Other than reporting the accident to the RCMP
and ICBC, the plaintiff took no further measure to locate the driver of the
unknown vehicle. He was not aware of any witnesses to the collision and did not
post any ads in newspapers or signs at or near the intersection.

[82]       
Mr. Springer remained in contact with the ICBC adjuster
over the next two years after the accident. He spoke to ICBC several times
during which time the adjuster inquired about settling his claim. He advised
her that his symptoms were not resolving and was following medical advice.

[83]       
In mid-November 2010, ICBC contacted Mr. Springer
and informed him about the upcoming expiry of the two year limitation period. They
also requested a meeting to resolve his claim.

[84]       
He was not told about any steps he was required
to take to identify the driver of the vehicle that struck Ms. Kee. He
understood that ICBC was investigating the issue of liability.

[85]       
I am aware that ICBC has no obligation to remind
the plaintiff of the requirements of s. 24(5) of the Act. However, it
seems to me that on several occasions, ICBC’s agents made representations to
the plaintiff to the effect that his claim would be settled once the plaintiff
had his medical report and other documents in hand. By saying “we want to give
you an offer”, ICBC implied they accepted Mr. Springer had been injured by an
unidentified motorist and he could expect to receive a monetary sum in the near
future; I expect that that sum would not be zero (that is, a complete denial/dismissal
of the plaintiff’s claim).

[86]       
It seems grossly unfair and against the public
interest for ICBC to make representations to a claimant, leading him to think
his claim had been accepted and that they were intending to offer him a settlement
but, after the passage of time and without warning, tell him he has failed to meet
the technical requirements of the Act depriving him of a settlement and denying
his claim. During the passage of two prior years, they invited settlement on
several occasions; however, when the time came to pay the plaintiff’s damages,
they then raise the defence under s. 24(5) of the Act. Although there is
no obligation for ICBC to remind a plaintiff of the requirements of s. 24(5),
it seems to me ICBC had a duty to qualify their settlement discussions so as
not to mislead the plaintiff.

[87]       
The Insurance Corporation of British Columbia
could have told the plaintiff plainly that they were unable to give any
information until they see his medical report. Instead, they said to “call us
when you are ready, we have an offer for you.” ICBC is represented through its
agents and therefore, must be bound by the representations made by those
agents. Otherwise, they would not be able to be held accountable at all. The adjuster
had accepted Mr. Springer’s claim as a hit and run claim based on the
information he presented to them at the time of his first report. They were
satisfied at the time that Mr. Springer had fulfilled the requirements under s.
24(5) of the Act; ICBC subsequently resiled from this position after the
litigation was commenced.

[88]       
It seems to me that ICBC’s demeanor in
communicating with the plaintiff could be interpreted as waiving their right to
insist that he take further steps to identify the other driver. If the statute
were to require the taking of those efforts as a precondition to consideration
or settlement of the claim, then the words spoken by the adjuster to the
plaintiff suggest that ICBC did not consider further steps necessary in the
circumstances.

[89]       
However, ss. 24(2) and 24(7) of the Act seem
to bring a different perspective to the analysis. Section 24(2) sets out as
condition precedent to the commencement of proceedings against ICBC that the
claimant give written notice to them as soon as practicable and in any event
within six months of the accident. Section 24(7) of the Act permits ICBC
to settle a plaintiff’s claim at any stage before judgment is given by the
court. If the claim is not settled by that time, then the trial proceeds and the
plaintiff is obliged to prove that damages were suffered as the result of the
negligence of an unidentified motorist. If those facts are proven, the
plaintiff is entitled to judgment for damages against ICBC as the nominal
defendant subject to the court reaching the further conclusion that the
plaintiff took all reasonable steps at the collision scene and for a reasonable
time thereafter.

[90]       
Sections 24(2) and 24(7) touch on the rights and
obligations of both parties in regard to each other prior to trial. Section
24(5) contains a direction to the court, limiting the circumstances in which
judgment can be given to the plaintiff to those where the plaintiff has made “all
reasonable efforts” to identify the unidentified motorist.

[91]       
It seems to me that, notwithstanding the unfairness
to the plaintiff who has indirectly relied on ICBC to ascertain that he has
complied with the Act as evidence that he was not required to take
further measures to perfect his claim, Mr. Springer has not taken the steps
required after the accident under s. 24(5) of the Act to find the
unidentified motorist.

[92]       
I accept the view that ICBC was not obliged to
warn the plaintiff of his ongoing obligations in the immediate aftermath of his
reporting the accident to ICBC; ICBC was, in my view, remiss in their duty to
inform the injured party about the steps necessary to perfect his claim,
particularly in light of the conversations with the adjuster indicating that
his claim had been accepted by the corporation. It seems to me that ICBC’s
communications with an injured person ought to include a warning about the
prerequisites of the claim against an unidentified motorist.

[93]       
In my view, although not obliged to advise
people of their obligations under s. 24(5), ICBC ought to recognize the
risks that laypeople will rely on remarks made by adjusters suggesting
settlements can be expected without warning that the claim will be denied if s.
24(5) is not complied with. Regrettably, I also note that the “Helping
You with Your Hit and Run Claim” pamphlet published by ICBC that was given to
the plaintiff by the adjuster does not mention the implications of s. 24(5) of
the Act.

[94]       
Counsel for the plaintiff mentioned the concept of
waiver, but did not argue this as a case of estoppel and the pleadings do
not advance any claim against ICBC except as nominal defendant.

[95]       
Section 24(5) does not permit me to consider the actions of ICBC in the
assessment of the plaintiff’s obligations under the Act. That may be the
subject of a waiver or estoppel, which is outside of the scope of this
application.

[96]       
For the reasons given by Barrow J. in Tessier, I
am unable to conclude that the actions of ICBC excuse Mr. Springer’s inaction
in the weeks following the accident. Therefore, I would dismiss the argument of
the plaintiff in this case; I cannot grant judgment because he did not
take all reasonable steps to ascertain the identity of the unknown driver as
required under s. 24(5) of the Insurance (Vehicle) Act, R.S.B.C. 1996,
c. 231.

[97]       
I will give liberty the parties to make
submissions on the form of order that should flow from these reasons and to
address the issue of costs.

“Armstrong J.”