IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130617

Docket: 40035

Registry:
Vernon

Between:

John Frederick
Jackson Clark

Plaintiff

And

William Bullock,
Sandra Bullock
and Mohammad Hanif

Defendants

And

Insurance Corporation
of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Betton

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application initiated jointly by the
plaintiff, John Frederick Jackson Clark, and the third party, Insurance
Corporation of British Columbia (“ICBC”).

[2]            
It arises out of a motor vehicle collision, or I suppose perhaps more
accurately collisions, that occurred as part of one event in March of 2005.

[3]            
There was an order made by Madam Justice Russell in respect of that
incident that the operator of the vehicle, William Bullock, was at fault for
the collisions and that the owner of the vehicle, Sandra Bullock, was
vicariously liable by operation of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318.

[4]            
There were a number of injured parties in the collisions in that event.
Among them, of course, Mr. Clark. Also among them were two children, aged
approximately now eight and 10. They were passengers in a vehicle operated, as
I have it, by their father, Mr. Hanif.

[5]            
All injured parties have proceeded or are proceeding with claims for
their injuries, and some if not all of the injuries are significant.

[6]            
In Mr. Clark’s situation, he is age 67 now. He proceeded to trial
before Justice Barrow. Recently Justice Barrow gave his decision on quantum and
an award was made in the amount of approximately $550,000. An order has not yet
been entered. There are some adjustments, if you will, that need to be made
regarding interest and perhaps deductions; I do not know those particulars, but
in any event, an order has not been finalized arising out of that decision. Given
the award, however, one can easily infer that Mr. Clark’s injuries were
significant.

[7]            
The Bullock vehicle carried liability insurance in the amount of $5,000,000.
The nature of the claims collectively creates a concern that that $5,000,000 in
coverage may not be sufficient to pay all of the claims arising from the
accident.

[8]            
There is an overriding allegation that one, at least, of the parents of
the injured children may have contributed by failing to adequately fasten the
children in or protect them inside of the car but not, as I understand it, for
causing any part of the collision.

[9]            
I should say, as well, that ICBC is involved as a third party.

[10]        
There are, of course, limitation periods that apply to any such claims.
In the case of infants, by operation of the Limitation Act and the Infants
Act, if I recall correctly, is delayed until certain steps are taken by the
defendants, or the children reach the age of majority.

[11]        
That has the potential here of extending the time before the quantum of
the infants’ claims are determined for many more years.

[12]        
The nature of the injuries arising from this collision, not only of Mr. Clark
but of the other plaintiffs, creates a real and legitimate concern that there
may not be sufficient coverage through the $5,000,000 policy of the Bullocks. There
is an additional $1,000,000 that is potentially available if some liability is
attached to the Hanif parents in respect of their securing the children in that
vehicle.

[13]        
Mr. Clark has entitlement to underinsured motorist protection under
the relevant legislation and had purchased excess underinsured motorist
protection, making available some $2,000,000 in total for underinsured motorist
coverage.

[14]        
The nature of the coverage that is available to him in his claim against
the Bullocks, which would be paid from the $5,000,000 insurance, is broader
generally than the nature of the coverage that would be available to him under
the so-called underinsured motorist protection coverage.

[15]        
Where there are multiple claims in motor vehicle accidents such as this,
the entitlement to payment from the insurance coverage is on a pro rata
basis. Obviously the pro rata entitlement to each of the plaintiffs to
the $5,000,000 can only be determined when each of the claims is quantified. As
I have alluded to, for the infants at least, that quantification may not occur
for many years.

[16]        
Also the nature of the legislation dealing with underinsured motorist
protection coverage articulates that ICBC is only obligated to make payments
pursuant to that coverage once other sources of recovery for any claims have
been exhausted.

[17]        
For Mr. Clark, that creates a problem, given his age and given that
his injuries were obviously significant, and given that the other claims may
not be resolved for many years, he faces the risk that he would not have any de
facto monetary recovery for his losses for many years. At his age, or at
any age, but certainly as one reaches advancing years, there is the risk that
in his lifetime, he may not have the benefit of the actual recovery of monies
for his injuries.

[18]        
One alternative that is available to ICBC, pursuant to the legislation,
is to pay all of the $5,000,000 into court. That, to a degree, resolves some
issues for ICBC, but it does not solve in any way Mr. Clark’s difficulty.

[19]        
For ICBC, however, it means that they are paying $5,000,000 into court,
and it may sit there for an extended period of time until all of the claims are
resolved and the pro rata entitlements are determined. That is
something, in the circumstances of this case, it is not desirous of doing.

[20]        
In this particular case, the parties come before the court with a joint
application and, I should say, appearing today are counsel for Mr. Clark
and counsel for ICBC. Counsel for all of the other parties have been served and
have chosen not to appear.

[21]        
I should say as well that I am told and accept that efforts have been
made by the parties to reach an agreement outside of court that would allow
recovery by Mr. Clark of the amount that he has been determined to be
entitled to, in effect, following a procedure that was carried out in the case
of I.C.B.C. v. Pozzi, 2004 BCCA 440.

[22]        
Such an agreement could not be reached between all of the interested parties.
Therefore that option was not available.

[23]        
In this particular case, ICBC determined that it would waive the
entitlement that it has by virtue of the legislation to require that Mr. Clark
exhaust all of his remedies, including awaiting the payment of his pro rata
entitlement to the $5,000,000 coverage under the Bullock policy; that is, ICBC
would waive its entitlement to insist on all of those steps being taken before
accessing the underinsured motorist protection coverage.

[24]        
The condition it attaches is that it requires a declaration from court
that would protect it against the potential for having to pay out more than the
amount of the Bullock policy.

[25]        
With that concession or that position being adopted by ICBC, these
parties come before me with a request for a declaration. That declaration
essentially allows ICBC to access the underinsured motorist protection coverage
available to Mr. Clark to pay the amount that Justice Barrow has
determined Mr. Clark is entitled to with adjustments as agreed to by the
parties.

[26]        
This would effectively be an interim measure pending the determination
of the other claims and, with that, the ability to determine Mr. Clark’s pro
rata entitlement to the $5,000,000 in coverage. At that stage, any of the
appropriate adjustments would be made to make Mr. Clark whole, as it were,
and to pay out, on a pro rata basis, other plaintiffs arising from the
incident.

[27]        
Of concern in any type of arrangement or declaration such as this is
whether there is any risk to those other claimants that they would have their pro
rata entitlement adversely affected by such an order.

[28]        
Given the nature of the declaration which is sought here, I am satisfied
that that risk is addressed. The arrangement that is proposed here would insure
that each of those plaintiffs would have full entitlement to their pro rata
share of that $5,000,000 in coverage.

[29]        
I should say as well that in taking its position, ICBC has apparently
assessed and determined that there is no other source of recovery for Mr. Clark;
that is, the only sources are the Bullock policy and the underinsured motorist
protection coverage.

[30]        
In my view, the interpretation of the statutes and the application of
the law should not be blind to practical solutions when parties, fully
cognizant of their rights and entitlement, present such a proposal. The court
should make efforts to facilitate that, so long as it is not running afoul of
legislation or established legal precedent, and does not prejudice parties who
would have an interest in the pool of funds that they would have available to
them.

[31]        
I am satisfied in these circumstances that, indeed, this arrangement is
in the interests of both Mr. Clark and the Insurance Corporation of
British Columbia, the applicants before me, and it does not prejudice or
adversely affect the rights of the other entities, all of whom have been served
with notice of this application and have chosen not to participate.

[32]        
The only other entity which is not a party that may, in a general sense,
have an interest in this type of situation would be the Public Guardian and
Trustee who, through its statutory obligation, has an interest in protecting
infants in this type of context.

[33]        
I should say as well that all of those other parties are represented by
counsel. No interested party in this matter is self-represented or
unrepresented.

[34]        
I have chosen and determined not to require that there be any notice to
the Public Guardian and Trustee, or that it be served with this application,
because I am satisfied that the declaration which I will be making does not
adversely affect the infants who are plaintiffs in separate proceedings arising
out of this collision. They will still have full access to their proportionate
shares of the insurance policy limits of the Bullocks.

[35]        
Accordingly, I will make the declaration.

[36]        
Now, counsel, I do not propose to specifically set that out again, it
will be in the terms set out in the notice of application in paragraphs 1 and
2, unless there is some other particular provision or observation or inclusion
in the order that is necessary.

[37]        
UNIDENTIFIED COUNSEL:   My Lord, that should be sufficient.

[38]        
THE COURT:  All right, and I will simply direct that a copy of the
order, once entered, be delivered to all parties who were served with the
notice. They are not specifically parties to this litigation, but I think it
appropriate that they have a copy of the order, once it is entered.

“D.A.
Betton, J.”

Betton
J.