IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151013

Docket: 50341

Registry:
Kamloops

Between:

Ryan
James Fitger

Plaintiff

And

John
Doe, Jane Doe and
Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Meiklem
in Chambers

Reasons for Judgment

[1]            
The trial of this motor vehicle injury case is set for May 2016 before a
jury. Following a summary trial of several issues, I provided oral reasons for
not severing the liability issue from the assessment of damages, as sought by the
plaintiff.

[2]            
I also ruled that the issue of the statutory defence of Insurance
Corporation of British Columbia (“ICBC”) under s. 24(2) of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c.231 [Act] was severable, and, on the
authority of Hecker v. Thomson, [1990] B.C.J. No. 2213, 23 A.C.W.S. (3d)
490 (BCCA), I held that the plaintiff had complied with the written notice
requirement, by virtue of there being a written record at ICBC of his timely
oral report of an accident caused by an unidentified driver. The jury will not
deal with that issue.

[3]            
The summary trial also dealt with the plaintiff’s statutory obligation
under s. 24(5) of the Act to make all reasonable efforts to ascertain
the identity of the unknown driver, who allegedly came around a curve in Mr. Fitger’s
path of travel on a secondary dirt road, forcing him to swerve and upset his
motorcycle on loose gravel, and then carried on without stopping. The
defendants’ argument on this issue focussed on the plaintiff’s actions or
inaction in the immediate aftermath of the accident on March 29, 2013, rather
than the next day or thereafter, when he essentially took the actions suggested
by his ICBC claim adjuster, as well as additional actions of his own
initiative. Assuming that the plaintiff will prove to the jury’s satisfaction
the fact of the involvement of another vehicle, I am satisfied on the evidence
that the plaintiff made all reasonable efforts after March 29, 2013 to
ascertain the identity of the unknown driver.

[4]            
Although I found it appropriate to sever the s. 24(5) issue, I found
that there were too many factual questions relating to the accident itself that
were not answered in the affidavit evidence before me to enable the court to
render judgment on a summary trial basis in regard to the plaintiff’s efforts
in the immediate aftermath of the accident. I, therefore, decided that the
issue of reasonableness of the plaintiff’s efforts to identify the unknown
driver on the day of the accident must be left to the jury to hear. The
pertinent questions relate to the extent and immediate effect of the
plaintiff’s injuries, timing of events, and other physical and geographical
facts.

[5]            
I hold that the s. 24(5) issue will be limited at trial to whether the
plaintiff’s actions on March 29, 2013 constituted reasonable efforts to
ascertain the identity of the unknown driver. Hearing the evidence and
considering this issue will not add significantly to the duration or the cost
of the trial. The several witnesses corroborating the plaintiff’s sign posting
and investigative steps taken after March 29, 2013 will not be necessary
witnesses.

[6]            
The plaintiff submitted that ICBC should be estopped from relying on s.
24(5) of the Act, by virtue of its conduct of the plaintiff’s claim and
its dealings with him. I reserved my decision on this estoppel argument, and
having considered the matter further, I conclude that the doctrine of estoppel
should not be applied in the circumstances of this case. My reasons follow.

[7]            
The essence of the plaintiff’s argument is set out in the plaintiff’s
written outline:

In the case at bar, the ICBC
adjuster Tracy Diver did communicate to Mr. Fitger that he ought to help ICBC
find the unidentified driver by putting up signs. He complied, and continued
his regular contact with ICBC and its agents. ICBC ought to be estopped from
claiming 1.5 years after that discussion that Mr. Fitger’s efforts were not
sufficient for him to maintain a claim.

[8]            
Mr. Fitger’s July 3, 2015 affidavit states the following regarding the
referenced communication with Ms. Diver:

29.       In mid-April [2013], Ms. Diver
requested that I help to find the identity of the driver of the Station Wagon.
She did not request that I provide any extra written application forms with
respect to my Accident claim, and she did not tell me that locating the driver,
or attempting to locate the driver, was any kind of requirement for my injury
claim or otherwise. She simply requested that I help them, by which I assumed
she meant help ICBC find the driver. I asked her how she thought I might help
to find the missing driver, given that they had taken off from the Accident
scene. She suggested that I put up some signs in the area. I intended to follow
her instructions as I understood that my adjuster’s job was to let me know what
I needed to get done on my end for my injury claim. On the basis of Anju’s
comments during my initial call to ICBC and my subsequent calls with Ms. Diver,
I understood that ICBC was directing my claim and giving me instructions on
anything helpful or necessary for my claim.

[9]            
Mr. Fitger’s affidavit also sets out the following evidence:

38.       I
continued to advise Ms. Diver about my efforts to obtain information about the
driver of the Station Wagon. I did not receive any responses to my signs, and I
was never advised by Ms. Diver that she had received any responses to my signs.
Ms. Diver did not advise me that I needed to make any additional efforts to
help her locate the driver, nor did she tell me that what I had done was not
enough. I assumed that if she required me to do anything further that she would
tell me, as we had ongoing communication. I had told her about what I had done
to help locate the driver, and I thought that the efforts I had undertaken,
both at her direction and of my own initiative, created the strongest possible likelihood
that anyone in the area with information about the Station Wagon would contact
myself or Ms. Diver.

39.       Had Ms.
Diver advised me that there were additional steps necessary for me to complete
in order to have my claim accepted, I would have complied with those additional
steps just as I had followed her previous instructions to post signs.

40.       I
continued working with Ms. Diver and attending the rehabilitative treatments
organized by my doctor and ICBC, on the understanding that my claim was proceeding
in the ordinary course, as it should. I advised Ms. Diver that I did not want
to retain a lawyer and would rather cooperate with ICBC to resolve my claim.
During the course of my claim Harinder Koonar replaced Tracy Diver as the
adjuster for my claim.

41.       In response to paragraphs 1-4 of
Part 3 of the Response to Civil Claim, I was never advised by Anju, Ms. Diver,
Mr. Koonar or anyone at ICBC that there are statutory requirements under
section 24 of the Insurance (Vehicle) Act R.S.B.C. 1996 c. 231, (the “Act”) to submit
a written notice of the Accident to ICBC or to make all reasonable efforts to
ascertain the identity of the unknown owner and driver or unknown driver, as
the case may be. I was also never advised by any adjuster that they considered
me to be negligent in causing the Accident, or that they were not considering
my claim to be a claim for damages for injuries. I was at all times, up until
June 24, 2014, under the impression that I had submitted a claim for injuries
suffered as a result of an Accident caused by another motorist, and that claim
had been accepted by ICBC.

[10]        
Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I
do not know whether ICBC has a policy of deliberately not informing claimants
such as Mr. Fitger of their s. 24(5) obligations, but there certainly does
appear to be a practice of not advising claimants of their obligations, despite
comments from the court about the unfairness that is apparent when lay people
place reliance on claims being processed as if valid, and are then belatedly
faced with the invocation of s. 24(5) if settlement is not reached: Springer
v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015
BCSC 1010 at paras. 105-116.

[11]        
In Li, the court considered an argument that estoppel should
prevent ICBC from relying on s. 24(5) in defending the plaintiff’s claim, where
ICBC had, similar to the case at bar, been silent in respect of the plaintiff’s
s. 24(5) obligations while continuing to process her claim. ICBC informed Ms.
Li some 10 months into processing her claim that her failure to obtain the license
plate number of the car that rear-ended her and was at the scene for a
sufficient time to allow her to do so, was fatal to her entitlement to damages.
The court found that there was nothing in the statements made by ICBC to the
plaintiff that could be construed as inducing her to stop any efforts to
identify the other motorist and there was no evidence that the plaintiff relied
on the absence of information from ICBC in failing to take steps to identify
the other driver.

[12]        
In the case at bar, the plaintiff’s argument would hypothetically be
viable if the issue was the sufficiency of the plaintiff’s efforts to identify
the unidentified driver subsequent to his initial dealings with ICBC, but
obviously nothing said or done or left unsaid by any employee of ICBC after
notification of the accident could have affected the plaintiff’s efforts in the
immediate aftermath of the accident, which is the only remaining period in
issue.

[13]        
The plaintiff’s evidence is that no one at ICBC told him that what he
“had done was not enough”. That is not a sound basis for him to infer that they
felt he had done enough. There is no evidence of any actual promise or assurance
made by ICBC that it accepted that he had previously made every reasonable
effort to ascertain the identity of the other driver. Such a communication
might arguably be a basis for estoppel if a reversal of position was found to
be unconscionable, but in my view that finding would be unlikely in the absence
of some detrimental action taken by the plaintiff in reliance, or some unfair
advantage gained by ICBC.

[14]        
As acknowledged in Li, at para. 130, s. 24(5) is a:

….direction to the court
prohibiting the court from giving judgment unless it is satisfied with the
plaintiff’s efforts to ascertain the identity of the unknown driver.

[15]        
The point is that s. 24(5) operates independently of the position of the
parties. In Li, the court goes on to say, in para 131:

[131]    Consequently, it is not
open to ICBC to insist on compliance or to waive or abandon a defence under s.
24(5). The legal right does not belong to ICBC except in the context of a
settlement. Thus, by failing to inform a claimant of the provisions of s. 24,
the defendant has not allowed the plaintiff to make any assumption that engages
a reliance on its strict rights.

[16]        
While the doctrine of estoppel can, as a general proposition, be applied
in respect of interfering with statutory rights, s. 24(5) of the Act is
as much about creating an obligation on the courts to enforce an obligation on
a class of claimants in the cause of preventing fraudulent claims as it is
about providing a defence to ICBC.

[17]        
In my view, ICBC’s failure to inform the plaintiff of his s. 24(5)
obligation was ill-advised from a public interest perspective. To continue to
process his claim without comment on his accident-day inaction and then
surprise him by pleading and pursuing a s. 24(5) defence was unfair from the
plaintiff’s perspective. These facts do not, in the circumstances of this case,
amount to conduct warranting the application of the doctrine of estoppel to the
limited remaining issue in regard to s. 24(5).

[18]        
As to costs, success has been mixed. Costs will be in the cause.

“I.C.
Meiklem J.”

MEIKLEM J.