IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130905

Docket: S-M-114016

Registry:
Victoria

Between:

Lisa Hewlett

Plaintiff

And

Jane Doe/John Doe
and/or

The Insurance Corporation
of British Columbia and

Sunwest Transport
Inc. and Richard Roe and Harpreet Singh

Defendants

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
The defendant The Insurance Corporation of British Columbia [“I.C.B.C.”]
applies for dismissal of the plaintiff’s claim against it, with costs to be
awarded against the defendant Sunwest Transport Inc. [“Sunwest”].

[2]            
The defendant Harpreet Singh was not involved in the hearing of the
application because he has not as yet been served with the Notice of Civil
Claim.

[3]            
The defendant Sunwest attended the hearing but filed no response
materials to the application of I.C.B.C.

[4]            
The plaintiff claims she was involved in a motor vehicle accident on
October 13, 2009 in the City of Victoria.

[5]            
In her affidavit of July 9, 2013, she says she was driving eastbound on
Boleskine Road and had entered the intersection of Douglas Street on a green
light, with the intention of turning left onto Douglas Street.

[6]            
She says she brought her vehicle to a stop in the intersection to yield
to oncoming traffic, and while stopped there her vehicle was struck from behind
by another vehicle, causing her vehicle to jump forward and to the left.

[7]            
She says she looked in the rear-view mirror and observed the cab of a
transport truck close to her vehicle that appeared to also be making a left
turn onto Douglas Street.

[8]            
She says she immediately believed her vehicle had been significantly
damaged, and while she considered getting out of her vehicle to speak to the
driver of the transport truck, she did not feel it safe to remain in the
intersection.

[9]            
Accordingly she continued through her turn in the intersection and
pulled into the right-hand lane of Douglas Street expecting the transport truck
to follow and pull in behind her.

[10]        
She says while stopping she looked in her rear-view mirror and saw the
transport truck starting to drive past her on her left side with a long trailer
behind it.

[11]        
She says that as she watched the transport truck drive by her on the
left, she observed an Alberta licence plate on the back of the trailer and took
note of the number AB Y60157.

[12]        
She says at no time did she observe the driver of the transport truck.

[13]        
She says she then drove into a parking lot and observed that the back
end of her vehicle had not in fact sustained significant damage.

[14]        
On a subsequent examination for discovery, she confirmed a number of
times that what she really focused on as the truck passed her was the licence
plate number.

[15]        
Subsequently the licence plate number was confirmed to apply to a
trailer owned by the defendant Sunwest.

[16]        
A Notice of Civil Claim was filed by the plaintiff against Jane Doe/John
Doe and/or I.C.B.C. and Sunwest on September 29, 2011.

[17]        
I.C.B.C. was named as a nominal defendant pursuant to s. 24 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231.

[18]        
When the Notice of Civil Claim was served on Sunwest, it resulted in the
receipt of a letter to plaintiff’s counsel of December 7, 2011 from the insurer
of Sunwest. The letter indicated that its insured driver, Mr. Singh, was
in the Victoria area on October 13, 2009, but had provided a statement that he
had never been involved in an accident on Vancouver Island and had not noticed
any damage to his tractor unit.

[19]        
The insurer’s letter also indicated that on the morning of October 13,
2009, Mr. Singh was booked to be on a ferry from Vancouver to Victoria at
9:00 a.m., to arrive in Victoria at 10:35 a.m., after the time of the motor
vehicle accident. It was stated to be doubtful that the vehicle which
rear-ended the plaintiff’s vehicle was in fact Mr. Singh’s vehicle.

[20]        
Receipt of this letter caused plaintiff’s counsel to amend the Notice of
Civil Claim on July 30, 2012 to include Mr. Singh as an additional defendant.

[21]        
I.C.B.C. applies for dismissal of the claim against it on the basis that
the plaintiff cannot satisfy the requirements of s. 24(1) of the Insurance
(Vehicle) Act, to bring an action against it, because the name of at least
the owner of the tractor and trailer, and perhaps the driver as well, are
ascertainable through the licence plate that the plaintiff focused on together
with the letter from the insurer of Sunwest identifying the driver in Victoria
that day as Mr. Singh.

[22]        
I.C.B.C. also relies on s. 24(5) of the Insurance (Vehicle) Act
for its alternative submission that if the vehicle was not in fact a Sunwest
transport vehicle and Mr. Singh was not involved in the accident, then the
plaintiff has not made all reasonable efforts to identify the actual owner or
driver as s. 24(5) requires by failing to follow the vehicle that she
alleges struck her vehicle.

[23]        
Plaintiff’s counsel makes the submission that it is always possible that
her client is wrong and it was not the Sunwest transport vehicle with the
Alberta licence plate that she noted that hit her vehicle, but was some other
unknown vehicle with a different licence plate number and I.C.B.C. should
remain as a nominal defendant for that other vehicle as the plaintiff made all
reasonable efforts to ascertain the identity of the other vehicle when she
attempted to note the licence plate number.

[24]        
Plaintiff’s counsel relies on s. 24(3) of the Insurance (Vehicle)
Act for the right of a plaintiff to maintain I.C.B.C. in the action as a
nominal defendant in case there was another unidentified vehicle with a
different licence plate number that struck her client’s vehicle.

[25]        
She relies on Smoluk v. I.C.B.C. (1993), 83 B.C.L.R. (2d) 328.

[26]        
In that case the plaintiff thought she had written down the licence
plate number of a blue car that she said had hit her vehicle, but the next day
found that the licence plate number she had written down was not accurate and
was not recorded in the registry of licence plate numbers.

[27]        
C.J.B.C. McEachern, writing the decision for the court, ruled that the
plaintiff had acted reasonably in taking down the licence plate number which
would lead any reasonable person to believe the identity of the person had been
or could easily be ascertained, and she had acted reasonably in relying on that
with no onus on her to undertake a highly speculative further investigation
upon learning that she had the wrong licence plate number.

[28]        
Counsel also cites McMahon v. I.C.B.C. (1998), 14 C.C.L.I. (3d)
7, where the plaintiff, while riding her bicycle, was cut off by what she said
was a dark blue Honda hatchback motor vehicle.

[29]        
The driver of the motor vehicle stayed with the plaintiff and drove her
to the hospital but then left.

[30]        
At the hospital, before the driver left, the plaintiff said she made a
mental note of the licence plate number but when it was later checked it was
found to be wrong as not relating to a blue Honda hatchback motor vehicle.

[31]        
The court determined that the identity of the owner of the offending
vehicle was not ascertainable, and the plaintiff had taken all reasonable steps
in the circumstances to ascertain the identity of the driver and owner of that
vehicle.

[32]        
Counsel for Sunwest submits that if I.C.B.C. is dismissed from the
lawsuit, there should be no determination by the Court that the vehicle which
hit the plaintiff’s vehicle was in fact the Sunwest vehicle driven by Mr. Singh,
so that Sunwest and Mr. Singh can still dispute this at trial.

Analysis and Decision

[33]        
Section 24 of the Insurance (Vehicle) Act state 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,

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.

[34]        
It is the plaintiff’s evidence that she focused on obtaining the licence
plate number of the offending vehicle. She does not suggest that there is any
doubt in her mind of the number.

[35]        
It turns out that the licence plate number does actually apply to a
transport vehicle from Alberta driven by Mr. Singh that day.

[36]        
The information from the insurer of Sunwest is that the vehicle was in
Victoria on October 13, 2009 and Mr. Singh was driving the vehicle that
day.

[37]        
The cases of Smoluk and McMahon are in my view
distinguishable because in Smoluk the licence plate number did not exist
at all and in McMahon was not applicable to the blue Honda.

[38]        
Here the licence plate number exists as a number for a transport vehicle
from Alberta, and it applies to an Alberta transport vehicle that was in
Victoria that day that matches the general description of the vehicle the
plaintiff says struck her.

[39]        
In my view, on the plaintiff’s evidence of the licence plate number that
matches an Alberta vehicle being in Victoria that day, it is virtually
impossible that she noted a licence plate number that was wrong and the vehicle
that struck her vehicle was in fact another unknown vehicle with a different
licence plate number, but also from Alberta.

[40]        
It is always possible that the Sunwest vehicle never struck the
plaintiff’s vehicle at all that day, or if it did it was never noticed by Mr. Singh
and caused no damage, but I am satisfied the Sunwest vehicle and Mr. Singh
were at that intersection at the same point in time that the plaintiff’s
vehicle was at that intersection.

[41]        
I am completely satisfied the vehicle the plaintiff alleges to have been
involved in a collision with her vehicle was the Sunwest vehicle licence number
AB Y60157 driven by Mr. Singh, and I therefore conclude these are
ascertainable facts that release I.C.B.C. from any liability as a nominal
defendant.

[42]        
I see no reason to consider the application of s. 24(5) of the Insurance
(Vehicle) Act, because there is no realistic possibility in my view that
the plaintiff noted the wrong licence plate number that applies to a different
vehicle, with a different licence plate number.

[43]        
The application of I.C.B.C. is allowed and it is dismissed from the
action.

[44]        
The application for costs against Sunwest is adjourned pending receipt
of written submissions from both parties on this issue.

[45]        
I order that I.C.B.C. file its written submissions in two weeks’ time
from the date of these reasons, and Sunwest file its written submissions by
reply in another two weeks thereafter.

“The Honourable Mr. Justice
Truscott”