IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160210

Docket: 49512

Registry:
Kamloops

Between:

Isobel Lapointe

Plaintiff

And

John Doe

Jane Doe

Insurance
Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Myers

Reasons for Judgment

[1]      This is an appeal from a Master’s summary judgment
decision: 2015 BCSC 4. The
appeal is based on a Court of Appeal decision handed down one day prior to the Master’s
decision: Century Services Inc. v. LeRoy, 2015 BCCA 120. The
procedural point decided by the Court of Appeal was not argued in front of the
Master.

[2]      This action is brought against ICBC under s. 24
of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, which deals
with accidents caused by unidentified vehicles.  (The section is set out
at the end of these reasons.) This allows an action to be brought against ICBC
where the owner and, depending on the circumstances, the driver of another
vehicle alleged to have caused the accident are unknown.  A plaintiff must, of
course, prove that the accident was caused by the negligence of the unknown
driver.  Section 24(5) of the Act requires that the court be satisfied
that a plaintiff made reasonable efforts to ascertain the driver or owner and
that their identities are not ascertainable.  ICBC pleaded that these
requirements were not met.

[3]      The plaintiff applied for summary judgment under
Rule 9-6. In his initial decision, the Master allowed the application with
respect to what I will refer to as the s. 24(5) point:

[40] I find that the plaintiff
has complied with s. 24(5). There is no genuine issue for trial with respect to
the defence of failure to make all reasonable efforts. There is no evidence to
be weighed on this issue. The plaintiff has, in the circumstances of this case,
made all reasonable efforts. I order that Part 3, paragraph 2 of the response
to civil claim filed by ICBC be struck.

He refused the application with respect to whether the
plaintiff established liability for the accident.

[4]      Before the order was entered, ICBC applied to the
Master for reconsideration of his decision based on the Century Services
case. The Master declined to reconsider his decision, primarily because ICBC
had already filed this appeal: 2015
BCSC 1742.

[5] Century Services involved a foreclosure action. The defendant raised fraudulent
misrepresentation as a defence. The plaintiff applied to have that defence
dismissed under Rule 9-6 on the basis that there was no triable issue. The
chambers judge disagreed.   The plaintiff appealed.

[6]      The Court of Appeal held that Rule 9-6 could
not be used to make a decision on a defence when the decision would not result
in a judgment on the case as a whole or a discrete portion of the claim. The
Court said:

40  We have been referred to no case in which the
summary judgment rule, which has long existed, has been used to effectively
strike out a portion of a defendant’s pleading without at the same time giving
judgment on a portion of the plaintiff’s claim, in contrast, for example, to
cases in which a defence has addressed only part of a plaintiff’s claim, such
as Canadian Imperial Bank of Commerce v. Lisowick (1984), 57 B.C.L.R. 77
(C.A.), and Royal Bank of Canada v. Timely Auto Sales Inc., [1983] B.C.J.
No. 2416 (C.A.).

41  To use Rule 9-6 in the fashion advanced is
effectively to use it to decide "an issue", without those words
appearing in the rule. It is to be remembered that the innovation in 1983 of
the summary trial rule, Rule 18A, now Rule 9-7, expressly allows for the final
determination of "an issue". Yet, despite revision to the Rules, the
summary judgment rule does not include that felicitous phrase, and keeps to the
traditional language of judgment on "all or part of the claim".

46  I consider that Rule
9-6 is not intended to provide an avenue for a plaintiff to obtain a decision
on only one defence in circumstances in which other defences are asserted that
may provide an answer to the whole of the claim; the simple dismissal of this defence,
as sought, is not available under Rule 9-6.

 [7]     ICBC argues that this principle is applicable
here; what the Master decided was an issue and not a claim. The plaintiff says
the present case stands on a different footing because the Master’s judgment
was determinative of ICBC’s liability to pay a future judgment which might be
rendered against the unidentified driver or owner. The decision was, therefore,
determinative of a claim.

[8]      The issue in this appeal is purely a legal one.
The standard of review is therefore correctness: Ralph’s Auto Supply (B.C.)
Ltd. v. Ken Ransford Holding Ltd., 2011 BCSC 999, at para. 7.

[9]      I do not agree with the plaintiff’s argument
which artificially separates the cause of action against the unknown driver or
owner from the claim against ICBC. Although it is common practice to name John
Does as substitutes for the driver and owner, the section does not require that;
an action may be brought against ICBC only. It is obvious that there is no John
Doe to serve and no default judgment can be taken against the unknown driver or
owner. ICBC is fully in control of the defence until the time of judgment or
the driver or owner is found. I do not think there is a separate claim against
under ICBC under s. 24 as the plaintiff maintains.

[10]    Therefore, a decision on s. 24(5) alone is not
determinative of a claim and cannot result in a judgment; it is only a decision
on an issue. On the basis of Century Services, it is therefore not
amenable to a Rule 9-6 application.

 [11]   That is sufficient to allow the appeal but there
is a further related point (not argued by ICBC) which reinforces this
conclusion. The obligation to attempt to locate the driver or owner is a
continuing one in this sense: if facts come to light that make the identity
ascertainable, the plaintiff is no doubt obligated to follow up on that
information. And, if the identities become known, section 24(6) provides that
the driver or owner must to be substituted for ICBC in spite of any
limitation period.  The wording of section 24(5) is that “a judgment
against the corporation must not be given unless the court is satisfied that…”.
This contemplates a single judgment.

[12]    I therefore do not think that a separate
decision on section 24(5) can be made in advance of a decision on liability as
a whole. Put another way, the time at which the court must be satisfied as to
the factors in s. 24(5) is the time of the determination of liability for the
accident. The opposite interpretation would allow for a scenario where s. 24(5)
is determined in favour of a plaintiff, and the driver becomes known before the
trial on liability. It would then make the substitution for ICBC impossible as
the matter would be res judicata.

 [13]   I therefore allow the appeal.

“E.M. MYERS, J.”

s.24 of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231

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.

(8) On judgment
against the corporation as nominal defendant under this section and expiration
of the time limited for appeal, or on the compromise and settlement of a claim
under this section, the corporation must pay toward satisfaction of the
judgment or claim an amount that the corporation is authorized to pay under
this Act and the terms, conditions and limits of the plan.

(9) If, under this
section, a judgment has been obtained against the corporation as nominal
defendant or the corporation has settled a claim, the corporation may apply

(a) to the court
where the judgment has been obtained, or

(b) if a claim has
been settled, to the court that would have had jurisdiction to entertain an
action for the recovery of damages to the amount of the settlement

for an order
certifying that a person was, at the time of the accident, the owner or driver
of the vehicle that caused the bodily injury, death or property damage in
respect of which the judgment was obtained or settlement made.

(10) If the court
hearing an application under subsection (9) is satisfied on the evidence that
the person named in the application was at the time of the accident the owner,
driver or both of the vehicle involved in that accident, it may make the order
applied for, unless it is satisfied that the person would not have been liable
for damages if he or she had appeared and defended the action or, in the case
of a claim settled before action, in an action that might have been brought to
enforce the claim, or it may direct the trial of an issue.

(11) On the making
of an order under subsection (10) or on judgment of the trial of an issue
directed under that subsection, the person certified, whether or not the driver
of the vehicle is named in an unexpired driver’s certificate and whether or not
the vehicle is specified in an unexpired owner’s certificate, is liable to pay
the corporation as a debt due and owing all amounts paid by it pursuant to any
judgment or settlement under this section, and section 20 (12), (13) and (15)
applies.

(12) The amount
paid by the corporation to a claimant who ordinarily resides outside British
Columbia is limited to the lesser of

(a) the amount
limited by this Act, and

(b) the amount that
a resident of British Columbia could recover under the same circumstances from
a similar fund in the jurisdiction in which the claimant ordinarily resides.

(13) In this
section, "owner", in relation to a motor vehicle, includes a
lessee.