IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150612

Docket: M139442

Registry:
New Westminster

Between:

Hui Chao (Cindy)
Li

Plaintiff

And

John Doe 1, John Doe
2 and

Insurance
Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

Introduction

[1]           
On January 10, 2010 the plaintiff was driving her car in New Westminster,
B.C. when she heard the siren of an approaching fire engine. She slowed her
vehicle and before she came to a stop her car was car struck from behind (“the
collision”).

[2]           
The plaintiff was never able to identify the driver of the car that
struck her vehicle because he left the area without providing his driver’s
licence or vehicle registration information.

[3]           
The plaintiff has suffered injuries and seeks damages against ICBC as
the nominal defendant under s. 24 of the Insurance (Vehicle) Act, R.S.B.C.
1996, c. 231 (the “Act”).

[4]           
ICBC rejects the claim and takes the position that the plaintiff failed
to take all reasonable steps available to her to learn the identity of the
driver and/or owner of the vehicle that struck her, as required by s. 24(5)
of the Act. It argues s. 24(5) bars the Court from granting judgment
in the plaintiff’s favour.

[5]           
This trial proceeded on an agreed statement of facts. Liability for the
collision is not in issue and these reasons will address the question of the
sufficiency of the plaintiff’s efforts to identify the owner or driver of the
car that hit her as required under the provisions of s. 24 (5) of the Act.

The Issues

[6]           
The plaintiff raises two issues in her submissions. First, I must decide
whether the plaintiff took all reasonable steps to identify the motorist who
caused this accident. If I conclude that she did not take all reasonable steps,
then I am asked to consider if because of ICBC’s conduct, including its failure
to advise the plaintiff of the requirements under s. 24(5) of the Act:

(a)      ICBC waived its rights
to rely on ss. (5) as a defence, or

(b)      ICBC is estopped from
relying on ss. (5) as a defence.

Facts

[7]           
The plaintiff is a 44-year-old certified general accountant. She
immigrated to Canada and speaks English but not fluently.

[8]           
Immediately before to the collision, the plaintiff was returning to her
home in Burnaby and was driving in the centre northbound lane of McBride Blvd. She
was approaching the intersection with Sixth Avenue (“the intersection”) when she
heard a fire engine siren coming toward her. It was between 5:00 and 6:00 p.m.
and she was several car lengths south of the intersection.

[9]           
The plaintiff slowed her vehicle but had not stopped when her car was
struck from behind.

[10]       
When the impact occurred there were no vehicles between the plaintiff’s
car and the intersection. It is agreed that the intersection was/is busy for
vehicles, especially during rush hour, and there were other cars to her right
that had stopped due to the fire siren at the accident scene.

[11]       
The plaintiff exited her vehicle and walked back to speak with the
driver of the car behind her. She had a hurried view of the driver and
described him as a young man driving a small black sports car. The driver
appeared frustrated and told the plaintiff to pull over. The plaintiff returned
to her car and was preparing to lead the other vehicle to a safe place to
exchange information when he pulled out and drove past her, turning right onto Sixth
Avenue.

[12]       
She followed the vehicle around the corner but before she made her turn,
the other vehicle had disappeared. She continued along Sixth Avenue for
approximately one block but was not able to locate the sports car that had collided
with her car.

[13]       
The plaintiff then returned to the fire hall located on the north side
of Sixth Avenue several yards away from the intersection at McBride Blvd. where
she met the fire hall captain, Captain Price. He told her he had contacted a
crew member of the fire truck that had passed by going southbound on McBride Blvd.
at the time of the accident. The captain was informed by a crew member that he
had seen the accident and observed that the other vehicle was a “black Alfa Romeo”.
The plaintiff was not informed of the name of the crew member who had witnessed
the accident but she obtained Captain Price’s name, telephone number and file
number which she subsequently provided to ICBC.

[14]       
After the accident, the plaintiff made no further attempt to contact
Captain Price nor did she make any other inquiry to obtain the name of his crew
member who witnessed the accident.

[15]       
The plaintiff did not report the incident to the police and did not
obtain information from any other motorists at the scene.

[16]       
In the area close to the intersection of McBride Blvd. and Sixth Avenue
there are three large townhome/condominium complexes on the southwest and
northeast corners of the intersection. There is a portion of Queen’s Park, with
walking trails and a bus stop, on the southeast corner of the intersection. On
the north east corner of the intersection there is a park area adjacent to the
fire hall located on Sixth Avenue.

[17]       
There were a number of businesses close to the scene of the accident
including a McDonald’s restaurant and gas station at the northwest corner of
McBride Blvd. and Eighth Avenue. This is approximately 500 meters from the
intersection with Sixth Avenue.

[18]       
There is also a shopping centre at the southwest corner of McBride Blvd.
and Eighth Avenue which is composed of a Safeway store, BC Liquor Store,
Starbucks coffee store and a Dollar Store. These businesses are all 500 meters
from the intersection at Sixth Avenue.

[19]       
There is a Canada Games Pool and parking lot located on Sixth Avenue
approximately 200 meters from the intersection with Sixth Avenue. The parking
lot is adjacent to the fire hall located at Sixth Avenue.

[20]       
The Justice Institute of BC is located on the north side of McBride Blvd.
between Seventh Avenue and Eighth Avenue.

[21]       
The plaintiff did not attend any nearby businesses or residences to
inquire whether anyone had witnessed the accident. She did not post signs at
the accident scene or place any advertisements in the newspaper asking for
witnesses to the accident or with information about the accident to contact her.

[22]       
The day following the collision, the plaintiff reported the accident to
ICBC by telephone. The report form indicates that she reported “H and R?” she
was asked for the licence plate number of the other car; she said she had been
unable to obtain the suspect vehicle’s licence number. She did not provide a police
file number nor did ICBC ask her to provide a police number to ICBC. The ICBC
Claim File Report does not address the plaintiff’s obligations under s. 24
of the Act.

[23]       
There was no communication between the plaintiff and ICBC between
January 11, 2010 and January 19, 2010. On the latter date, the plaintiff met
with Jane Potter, an adjuster, and provided a statement which included the
following:

(a)      the
other car was a small, black convertible; after the impact she got out and went
back to the other vehicle; the driver was in his 20s, Caucasian and had dark
curly hair; there were no passengers in the other vehicle; she had some pain in
her back a bit but did not think it was from the accident. She was there to
claim for damage to the rear bumper of her car.

(b)      She
tried to exchange information with the other driver who told her to pull over.
She did not get the licence plate number of the car that hit her because they
were going to exchange information when they pulled over and then he drove away.
When she got out of her car, officers came out of the fire hall.

[24]       
Ms. Potter attempted to contact Capt. Price on January 22, 2010.
She had some difficulty contacting Capt. Price. She did not advise the
plaintiff to contact Capt. Price directly or to contact the crew member who
witnessed the collision.

[25]       
Ms. Potter also issued a look-out to ICBC generally with respect to
“black sports car – Caucasian driver – young curly hair… – Alfa Romeo?
Convertible top”.

[26]       
There was no response and no evidence of any search for ICBC intakes to
confirm whether or not the black Alfa Romeo was ever presented to ICBC for
repair.

[27]       
On February 9, 2010 the plaintiff asked the adjuster if there were
cameras at the accident scene; the plaintiff was advised that it was possible
there were red light cameras at the next intersection but they would only pick
up images of red light runners. Neither the plaintiff nor ICBC made any effort
to find film footage of the intersection at the time of the collision.

[28]       
The plaintiff went to a physiotherapist on or about February 5, 2010 and
the therapist contacted Ms. Potter to obtain approval to treat the
plaintiff. On February 14, 2010 the plaintiff completed eight “CL – 22” forms
confirming that she had injuries from the accident and had lost time from work.
The plaintiff was approved for 10 further physiotherapy treatments beginning
April 12, 2010.

[29]       
Ms. Naidu, Ms. Potter’s successor on the file, eventually
received a message from Capt. Price that none of his staff obtained the licence
plate number of the unidentified car.

[30]       
Between February and October 2010, four different ICBC staff were
adjusting the plaintiff’s claim. In the spring the plaintiff continued to
receive physiotherapy treatments paid for by ICBC. In mid-April 2010 the
plaintiff was informed that the other driver’s licence plate number had not
been obtained and the value of damage to her car was less than her personal
deductible. She was told that her bodily injury claim would continue.

[31]       
On October 28, Ramona Bieir, Ms. Naidu’s successor to the plaintiff’s
file at ICBC, informed the plaintiff that, although she had time, she had
failed to obtain the unidentified driver’s licence plate at the scene of the
accident and had lost her right to claim under the” hit and run” provisions of
the Act. Her claim would continue as a collision claim but because she
had no collision coverage she would be required to pay for her own damage.

[32]       
At no time prior to October 28, 2010 was the plaintiff told that she had
obligations under s. 24(5) of the Act and her tort claim was not
discussed.

[33]       
This position was repeated by the ICBC adjuster on January 31, 2011.
ICBC confirmed that her claim was to be processed as a collision claim. On
April 4, 2011 the plaintiff advised the ICBC adjuster she wanted compensation
for losing her job; she was told that ICBC “does not do that”.

[34]       
Nothing in the telephone or personal exchanges between the plaintiff and
ICBC informed the plaintiff of her obligations under s. 24 of the Act.

Plaintiff’s Positon

[35]       
The plaintiff contends that she took all reasonable efforts to ascertain
the identity of the other driver. The test for determining “reasonable” does
not demand perfection and the analysis should weigh the probable benefit of any
particular course of action which is measured by the likelihood of some benefit
being gained and the size of the benefit anticipated.

[36]       
She contends that rational people, considering the severity of her
injuries, would not have taken any steps other than reporting the claim to
ICBC.

[37]       
She claims that there would have been no reasonable benefit in
canvassing the neighbourhood because the accident was minor and it was unlikely
witnesses would have seen the incident. She claims it is unlikely that any
witness would have had a reason to record the licence plate of the unidentified
driver. She suggests that the nearby residences would not have been visible
from the scene of the accident and lighting would have made observation
unlikely. Finally she says that the closest businesses were 200 meters away and
the Justice Institute and McDonald’s were even further from the intersection,
so it is unlikely witnesses would be found at those locations either.

[38]       
She also says that there was no likely benefit in posting signs. She
contends it is unlikely that a sign would have prompted any witness to come
forward, in part because it is unlikely that any witnesses would have taken the
other vehicle’s licence number. She also contends that advertising would have
been of no benefit for the same reason.

[39]       
She argues that the description of reasonable measures mentioned by
Smith J.A. in Nicholls v. Insurance Corporation of British Columbia,
2011 BCCA 422 includes consideration of the subjective confusion created by
ICBC’s involvement. She contends that her subjective circumstances include the
element of confusion created by ICBC’s involvement in the investigatory
process. She contends that once ICBC took steps toward investigating the
identity of the other driver, it was not unreasonable for her to stay away from
that part of the investigation. Similarly, ICBC contacted the fire department
and there was no probable benefit in her duplicating their effort. She argues
that her report to ICBC would logically have resulted in ICBC contacting the
police as well.

[40]       
The plaintiff recognizes that ICBC has no legal duty to explain her
responsibilities under s. 24(5), however she contends that ICBC has an
equitable duty to inform claimants of their obligations under s. 24(5).
ICBC is in the best position to inform claimants of the rather obscure
provision in the Act and citizens likely rely on ICBC to assist them in
the circumstances.

[41]       
The plaintiff argues that ICBC’s words or conduct led the plaintiff to
believe that ICBC was not going to insist on strict application of the
requirements of s. 24(5) of the Act. Thus she argues an equity was
raised with respect to the exercise of rights. She argues “one would expect,
given the purported importance of reports to police, that ICBC would make the
best use of that first call and take steps to ensure the claimant knows what to
do.”

[42]       
In all of her dealings with ICBC up until October 28, 2010 when her
claim under s. 24 was denied she was not advised that if she had failed to
get the other driver’s licence number or take steps to identify as described
s. 24(5) that she would lose her right to claim a hit-and-run. The
plaintiff relied on Dunn v. Vicars, 2009 BCCA 477 for the proposition
that ICBC is estopped from raising ss. (5) as a defence.

[43]       
She also contends that Barrow J.’s comments in Tessier v. Vancouver
(City), 2002, 48 C.C.L.I. (3d) 273 (B.C.S.C.) underscore a serious policy
consideration that should be addressed by ICBC. In obiter, the court said:

[21]      I am troubled by the issue of costs. If it had
been established that the plaintiff had attended at the Insurance Corporation
of British Columbia and dealt with its agents and that she, as an elderly
woman, had not been advised of the requirements of section 24(5), an award of
costs may well not have been made. 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). It
does not, however, seem to me to be overreaching to simply point out the
provisions to an unrepresented elderly claimant who to any reasonable observer
may well be relying prudently or otherwise on the representations of the
Insurance Company’s employees. Counsel for the Insurance Corporation quite
rightly points out that there is no obligation on the Insurance Company’s
employees to do that.

[22] On the other hand, if that step is not taken,
and I pause to note it does not appear to me to be a particularly onerous
requirement, to remain silent and thereafter rely on the plaintiff’s failure
when seeking to be removed as a defendant in a subsequent lawsuit is not a
circumstance, in my view, which would render an award of costs appropriate.
I am unable to conclude on the circumstances before me that that is what
occurred.

[Emphasis Added]

[44]       
The plaintiff also relied on Springer v. Kee, 2010 BCSC 1210 to
the effect that, although ICBC is not obliged to warn claimants how to
discharge their ongoing obligations under s. 24, as the public insurer
their communications should at least include a warning about the prerequisites
that a claimant must meet in the circumstances.

Defendant’s Position

[45]       
The defendant argues that under s. 24 plaintiffs are obliged to
make all reasonable efforts to establish the identity of the driver at the
scene of the accident and in the days or weeks following the accident. The
plaintiff failed to make any efforts at either time. One of the plaintiff’s
most serious errors was failing to inform the police of the accident. If she
had notified the police, it is not unreasonable to think that their
investigatory resources may have located the driver of the unidentified vehicle
soon after the collision.

[46]       
The defendant contends that the plaintiff was obliged to:

(a)      report
the incident to the police and ICBC and follow up on inquiries with those
organizations;

(b)      post signs at the busy
intersection close by the scene of the incident;

(c)      canvass
regular patrons of the businesses, residences and institutions in the vicinity.

[47]       
The defendant also relies on Tessier for the helpful discussion concerning
reasonable steps necessary to perfect a claim for damages caused by an
unidentified motorist. The defendant argues that some or all of the steps
referred to above represented the logical, sensible and fair efforts that
should have been expended by her to obtain the identity of the owner or driver
of the vehicle. The defence says that none of the steps were whimsical,
frivolous or absurd.

[48]       
The defendant concedes that, in some circumstances, posting signs or
placing ads is a fruitless exercise. The cases in which that conclusion was
reached, however, are factually limited to accidents occurring on freeways or
other places, where vehicles are travelling at high rates of speed or in remote
locations where there is no practical or reasonable chance of identifying a
witness. The defendant contends this was neither an isolated area nor a place
where there was fast-moving traffic. The argument is that during busy rush-hour
periods it would be reasonable to expect that vehicles would stop at or near
the stop light at the intersection and if signs were posted, an observant
motorist might have responded to such an inquiry. Further it is reasonable to conclude
that during rush hour motorists and others would use that part of the road
repeatedly during commutes to and from work and would be more likely to see and
respond to a notice looking for witnesses. The defendant concludes that posting
signs would have been a reasonable measure in the circumstances.

[49]       
The defendant also contends that the plaintiff’s failure to report the
accident to the police on January 10 or at any time shortly after deprived the
police of an opportunity to locate the unidentified driver in the minutes or
hours shortly after the collision. As noted in Becker v. v. Insurance Corp.
of British Columbia, 2002 BCSC 1106, claimants are obliged to follow up
with police investigations before abandoning efforts to identify the driver.
That did not occur in this case because no report was made.

[50]       
The defendant argues that ICBC has no obligation to inform potential
claimants of the requirements of s. 24(5) and there is no basis to invoke
the principles of waiver or estoppel. The defendant says that the plaintiff
cannot rely on the comments or inquiries of the ICBC adjuster as excusing her
failure to take all reasonable steps for the reasons set out in Tessier:
see also Meghi v.Insruance Corp. of Brisitsh Columbia, [1998] B.C.J. No. 3107.

[51]       
Moreover, the defendant argues that potential claimants cannot rely on
the failure of ICBC to assist in the inquiry as to the identity of the other
motorist. Thus, when ICBC reported on the results of their inquiry with Captain
Price, it was not reasonable for the claimant to abandon any other efforts in
some mistaken belief that ICBC was protecting her interests. For example, ICBC
may have been pursuing efforts to settle the claim under the statutory authority
of s. 24(7) of the Act independent of any consideration of the
claimant’s obligations: see: Grant v. Slater, 2001 BCSC 1409.

Law

[52]       
The benefits available to an accident victim unable to identify the
negligent driver are part of the overall public automobile insurance scheme
available in British Columbia. The provisions in s. 24(5) that prevent the
court granting judgment unless the identity of the negligent driver is not
ascertainable and the plaintiff has made all reasonable efforts to discover the
identity are an important feature of the system. Section 24 of the Act
provides:

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.

[53]       
It is helpful to recognize that ss. 24(2) and 24(7) of the Act highlight
different features of s. 24. Section 24(2) prescribes a six month notice be
given as a condition precedent to the commencement of proceedings against ICBC.
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 a trial proceeds, then the
plaintiff is obliged to prove that damages were suffered as the result of the
negligence of an unidentified motorist and, under ss. (5), if those facts
are proven, there can be no judgment against ICBC as the nominal defendant unless
the court reaches the further conclusion that the plaintiff took all reasonable
steps to ascertain the identity of the negligent motorist.

[54]       
There have been a plethora of decisions concerning s. 24 of the Act
including the Court of Appeal decisions in Nicholls v. Insurance Corporation
of British Columbia, 2011 BCCA 422 and Morris v. Doe, 2011 BCSC 253.
An important feature of many of these cases is the absence of awareness by the
injured claimant of their obligations under s. 24(5) to take steps to
identify the unidentified negligent driver or owner of the vehicle that caused
an accident. Often, claimants have reported their accidents to ICBC and the
police but failed to take other steps typically deemed reasonable to identify
the tortfeasor. On some occasions ICBC might have lulled the plaintiff into
inactivity and in other case adjusters simply avoid any discussion of a
plaintiff’s obligation under s. 24. The results of either approach seem to
work considerable hardship on the uninformed motorist because delay in taking
steps can be fatal to their claim.

[55]       
The analysis of this claim is informed by the Court of Appeal decision
in Leggett which sets out the policy and purpose behind s. 24:

[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.

[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".

[Emphasis added.]

[56]       
The plaintiff’s obligation was described by Goepel J. (as he then was)
in Nelson v. Insurance Corp. of British Columbia, 2003 BCSC 121, where he
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.

[57]       
Goepel J. also notes, at para. 18, that the plaintiff’s obligation
following an accident to use all reasonable efforts to ascertain the identity
of the driver is a continuing obligation.

[58]       
In Leggett, the Court similarly pointed out that the duty to make
reasonable efforts is ongoing:

[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.

[59]       
The court in Slezak v. ICBC, 2003 BCSC 1679 also noted at para. 42
that the obligation to make reasonable efforts extends beyond the time of the
accident and its immediate aftermath.

[60]       
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 at para. 55:

a.         depending on the plaintiff’s condition at the
scene of the accident, it may not be realistic to expect the plaintiff to
obtain particulars as to the identity of the offending driver particularly
where the plaintiff is in shock or confused or injured: Tessier; Hocaluk;
Ingram v. ICBC (1994), 45 B.C.A.C. 218 [Ingram]; Holloway v.
ICBC,2007 BCCA 175 (CanLII), at para. 14; Larsen v. Doe, 2010
BCSC 333 (CanLII) [Larsen];Becker v. ICBC, 2002 BCSC 1106
(CanLII) [Becker], at para. 20; Nelson at paras. 19-20.

b.         failure to record a licence plate number at the
time of the accident when the plaintiff has the opportunity to do so or obtain
information as to the driver’s identity, either personally or through the
assistance of others, but does not take advantage of the opportunity amounts to
a failure to take reasonable steps at the time of the accident: Burley at
paras. 23-24; Watson v. Insurance Corporation of British Columbia, 2004
BCSC 1695 (CanLII) [Watson]; Cannon v. ICBC, 2005 BCSC 602
(CanLII);

c.         simply notifying the police of the accident may
not be sufficient to satisfy the requirements of s. 24(5): Tessier
at para. 17;Becker at para. 18;

d.         the Act does not put the
responsibility to find the unidentified driver on the police; rather the
responsibility lies with the plaintiff: Becker at para. 17;

e.         where a plaintiff does notify the police of the
accident, it is not reasonable for them to simply assume the police will make
the necessary inquiries without following up with the police and checking to
see if there was an investigation and if so what progress was being made in it:
Beckerat paras. 17-18; Tessier at para. 17; Goncalves
at para 23;

f.          simply reporting the matter to the police and
ICBC, without more, has led to the dismissal of a plaintiff’s action for failure
to comply with the requirement of taking all reasonable steps to ascertain the
identity of the driver: Meghji v. ICBC, [1998] B.C.J. No. 3107
(P.C.) (QL);

g.         where the police attend the scene of the accident
and take witness statements and indicate they are investigating the hit and run
accident, it may not be necessary for the plaintiff to take any additional
steps, depending on the circumstances: Hough v. Doe, 2006 BCSC 1450
(CanLII) [Hough], at paras. 16-17 & 21; Ingram at para. 13;

h.         a plaintiff placed in a position of danger at the
time of the accident cannot be expected to remain in that position to obtain
details of a licence plate and movement to a position of safety before trying
to obtain any licence information does not constitute a failure to take
reasonable steps at the scene of the accident: Nelson at paras. 19-20;

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 (CanLII) [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
(CanLII);

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 (CanLII);

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: Houghat
para. 24; Goncalves at para. 16-21;

m.        once it is found that a plaintiff acted reasonably
in believing they had the information that would be required, such as a licence
plate number, there is no onus cast upon them to undertake a highly speculative
further investigation upon being advised they have the wrong license plate
number: Smoluk v. ICBC (1993), 1993 CanLII 2167 (BC CA), 26
B.C.A.C. 23 [Smoluk]; Walker v. Farnel (1995), 36 C.C.L.I. (2d)
312, at para. 24;

n.         a plaintiff will not be foreclosed from pursuing
ICBC as the nominal defendant in a hit and run case where they rely upon
information provided by the offending driver that subsequently turns out to be
untruthful: Mudrie v. Grove, 2010 BCSC 1113 (CanLII), at paras. 33-36;

o.         failure to follow up on directions to take
additional steps such as posting signs for witnesses or advertising, once
advised the recorded licence plate number is incorrect will result in a denial
of coverage under s. 24 of the Act: Watson;

p.         failing to make a timely report to the police and
failing to follow up on available information from the scene of the accident
such as information in the possession of ambulance personnel who attended the
scene will result in a denial of coverage under s. 24 of the Act: Johal;

q.         the failure of ICBC adjusters to advise the
plaintiff that other steps to try and ascertain the identity of the driver
should be undertaken does not relieve a plaintiff of the obligation to take all
reasonable steps to ascertain the unknown driver’s identity: Tessier at para. 19.

[61]       
Ker J.’s conclusion in Morris 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.

[62]       
The Nicholls case was decided several months after Morris.
The plaintiff argues that the principles set out in Nicholls relax the
strictness of the requirements on a claimant under s. 24 of the Act.
The Court of Appeal in Nicholls described the “classic test” for
determining reasonableness of a plaintiff’s conduct as weighing the cost of a
proposed action against the probable benefit of pursuing that course of action.
The probable benefit is determined with regard to both to the likelihood of
some benefit being gained and the size of the benefit to be gained (at para. 8).
The Court then described the standard created by the section as follows:

[9]        In applying this test, I must look at the
objective rationality of the steps which ICBC says ought to have been taken,
which will in part be a function of the time and effort required. I must also
consider the claimant’s conduct without regard to the availability of insurance
for the unidentified driver claim. That is to say, I need to consider
whether the claimant acted as a rational person would have done given his
subjective circumstances, including the severity of his injuries if his only
recourse was against the tortfeasor.

[31]      Thus, the only qualification on the requirement of
“all reasonable efforts” in s. 24(5), is the subjective aspect of the test
that requires the “position and condition” of the plaintiff to be considered in
determining what efforts are reasonable in the circumstances. In all cases, the
single standard to be met is one of reasonableness.

[63]       
In Nicholls, the Court distinguished Morris on the basis
that in Morris, the accident had occurred on a busy street corner,
giving rise to a high probability there would have been witnesses to the
accident whereas in Nicholls the trial judge found that it was unlikely
there were any witnesses to be found who could offer information. This was a
finding of fact made by the trial judge on the evidence.

[64]       
There have been other cases with factual findings apposite to this case.
In Podowski v. Insurance Corp. of British Columbia (26 October 1993),
Vancouver B906267 (B.C.S.C.), the plaintiff’s 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. 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.

[65]       
Smith J. said:

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.

[66]       
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. The court concluded that
the plaintiff had chosen not to attempt to ascertain the identity of the driver
by placing all his reliance on the RCMP 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.

[67]       
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.

[68]       
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.

[69]       
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.

[70]       
It is also clear that there appears to be no duty on ICBC to inform
potential claimants as to the requirements of s. 24(5). 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.

Discussion

[71]       
If I find Ms. Li failed to take steps to identify the unknown
driver at the scene, this finding is an impediment to the Court granting
judgment for the statutory benefits otherwise recoverable under the Act
(Morris; Tessier).

[72]       
The question is therefore whether Ms. Li’s efforts can be construed
as doing everything reasonable to protect what ordinarily would be her own
interest in identifying the unidentified owner/driver. The interpretation of
“reasonableness” in the context of this section is measured by whether Ms. Li
did everything she reasonably could have done to protect what would ordinarily
be her interest if ICBC was not involved in funding the claim (Leggett,
at paras. 9 and 13).

[73]       
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, the court suggested that the approach to “all reasonable
efforts” might be relaxed when fraud is not suspected; 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”.

[74]       
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.

[75]       
The focal point of this assessment of Ms. Li’s claim is whether her
failure to do more than contact the fire captain and ICBC to ascertain the
identity of the other driver was reasonable in that they were the only
“logical, sensible, and fair” steps she could have taken. The test does not
require the claimant to take steps that are considered “absurd, whimsical or
unwarranted” (see Sleazy 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).

[76]       
It is uncontroverted that the plaintiff:

(a)      did not contact the
fire crew member who witnessed the accident;

(b)      did not canvass any
homes in the area adjacent to the accident scene;

(c)      did
not post any signs on the corners of the intersection of McBride Blvd. and Sixth
Avenue or along the pathways in Queen’s Park;

(d)      did
not post signs at the bus stop directly across the street from the accident
scene;

(c)      did
not canvass or post signs at the Canada Games Pool approximately 200 meters
away;

(e)      did
not canvass or post signs at the Justice Institute approximately one and a half
blocks away;

(f)       did
not canvass any of the commercial establishments at Eighth Avenue and McBride Blvd.;

(h)      did
not report the accident to the police on the day of the accident or at any time
after; and,

(i)       did
not ascertain if there was closed circuit cameras that might have been in place
at the intersection.

[77]       
There are two specific time periods relevant under the s. 24(5)
inquiry: the time of the accident and the days or weeks following the accident.

[78]       
First, based on the evidence tendered, it seems that the plaintiff did
not make all reasonable efforts at the time of the accident.

[79]       
Ms. Li was rear-ended by a car with minimal damage to her car.
After impact, the plaintiff got out of the car to speak to the driver directly
behind her, and it was her impression that he would meet her on Sixth Avenue
and exchange information. By the time the plaintiff travelled onto Sixth Avenue
the driver behind her had passed her, turned right and driven off.

[80]       
There was heavy traffic on McBride Blvd. at the time of the accident.
The visibility in the area of the collision was not bad and there were
streetlights. The road was dry and there was no rain. I infer from the
estimated time of the accident, it happened during rush hour. McBride Blvd. is
not a divided highway or fast-moving roadway.

[81]       
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 Ms. Li to do anything other than invite the
other driver to move onto Sixth Avenue where they could exchange information. Ms. Li
did not record the licence plate number of this other driver before he moved
from the point of impact. As the events transpired, the plaintiff did not act
unreasonably in failing to record his licence plate before they moved to Sixth
Avenue from the accident site.

[82]       
Ms. Li acted reasonably in parking at the fire station and speaking
with the fire captain. She acted reasonably in seeking his assistance in
obtaining information from the fire engine that had passed by at the time of
the impact.

[83]       
The plaintiff did not act reasonably in failing to contact the police
and report the incident immediately. It surely must have been possible that a
report to the police might have generated an investigation, particularly in the
time shortly after the accident, that might have led to the identification of
the owner or driver of the black Alfa Romeo on the streets in New Westminster
that night.

[84]       
The unidentified driver committed an offence under s. 252(1) of the
Criminal Code, R.S.C. 1985, c. C-46 which, in spite of the minimal
damage, is a significant offence. There is a paucity of evidence about what
procedures the police might have followed if they had received a report but I
cannot accept that it would have been absurd or whimsical for her to have made
that report. Applying a cost/benefit analysis to that act alone satisfies me
that reporting the incident to the police would have been reasonable; common
sense calls for the victim in Ms. Li’s circumstances to call the police.

[85]       
Next, I must examine the plaintiff’s actions in the days and weeks
following the accident. Again, I cannot conclude that she discharged her
obligations under s. 24(5) in the immediate aftermath of the accident or at
any time in the following weeks or months.

[86]       
The plaintiff contacted ICBC the day after the event to report the
accident and make a claim in good faith.

[87]       
She did not make a late report to the police nor did she contact the
fire department to make any further inquiries of the member who had seen the
accident. It is unknown whether that person may have made any other
observations about the car, excluding the licence plate, that might have
assisted in the further investigation of the accident.

[88]       
She was informed on January 31, 2011 that ICBC was rejecting her hit and
run claim because she had failed to obtain the licence plate number of the
negligent driver.

[89]       
Ms. Li argued that in the days after the accident it would not have
been reasonable for her to take steps other than reporting the claim to ICBC. She
argued that the circumstances in and about the area of the collision made it
unreasonable for her to post signs, advertise in newspapers, or revisit the
area to search for potential witnesses.

[90]       
The assessment of reasonableness of whether the act of notifying the
police and ICBC, without more, meets the requirements of s. 24 is a
factual determination based on the circumstances of the case: Nicholls. Smith
J.A. in Nicholls reiterated that reasonable is synonymous with “logical,
sensible and fair” but does not include “absurd, whimsical or unwarranted”.

[91]       
I accept that there was little benefit in contacting businesses at the
intersection of Eighth Avenue and McBride Blvd. or at the Justice Institute
given their distance from the scene of the accident.

[92]       
Ms. Li invited the court to consider her “subjective circumstances”
and the confusion created by ICBC’s involvement in the investigation.
Regrettably, there is no evidence of Ms. Li’s confusion or uncertainty
regarding ICBC’s involvement. There is no evidence about Ms. Li’s
subjective view of the circumstances at any point, including the severity of
her injuries or of the collision, available for consideration. The plaintiff
contends that it would have been unreasonable for Ms. Li to do any further
investigation because she believed that ICBC was contacting the police as well
as the fire department. That assertion is not supported by the evidence.

[93]       
Ms. Li gave 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 no evidence concerning the
cost of advertising as a reason why the plaintiff did not advertise or post
signs.

[94]       
The analysis of circumstances by Bernard J. in Hough is helpful
in the context of Ms. Li’s submissions. This accident was on a similar route
traveled regularly by her and many others and likely at the same time in the
evening. In relatively slow-moving rush hour traffic, it is not unreasonable
that there were witnesses to the accident who might respond to a posted sign or
an advertisement.

[95]       
The facts of this case are from those in Slezak, where 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 the plaintiff in Slezak, posted an ad in the newspaper.

[96]       
There was a paucity of evidence about the availability of advertising
options or newspapers circulating in the area. Ms. Li attempted to
diminish the prospects of finding witnesses in the area; however on the
evidence 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.

[97]       
The next issue is whether it was reasonable for the plaintiff to rely on
ICBC’s investigation of the incident as a justification for not taking further
steps. Ms. Li argued that, in the post-accident weeks, she was in some
state of confusion because ICBC had said they were making inquiries of the fire
captain.

[98]       
The agreed statement of facts does not address the plaintiff’s state of
mind with regard to the investigation by ICBC or her role in advancing a hit
and run claim, which creates some difficulties with this argument.

[99]       
As I have observed, there is no evidence of the claim being fraudulent.

[100]     Ms. Li
reported the accident to ICBC on January 11, 2010; as discussed the plaintiff
took no further measures to locate the driver of the unknown vehicle. She gave
a statement to ICBC on January 19. Ms. Li asked her adjuster if there were
any cameras at the intersection; she was told that any cameras, if they existed
were only for red light infractions and thus would not likely pick up the unidentified
motorist. The plaintiff did not make any enquiries of the City of New
Westminster concerning the existence of cameras at the intersection and whether
they might have been activated at the time. ICBC did not discuss with Ms. Li
the possibility of posting advertisements in newspapers or placing signs at or
near the intersection.

[101]     Ms. Li
remained in contact with the ICBC adjuster over the next 15 months after the
accident. She spoke to ICBC several times inquiring about benefits and latterly
about compensation for her job loss. It would have been clear her symptoms were
not resolving and she was following medical advice.

[102]     ICBC
contacted Ms. Li on April 14, 2010 to tell her they were treating her
claim as a hit and run. She would be required to pay any deductible for her damage
but she would retain a bodily injury claim.

[103]     It is
argued that the reasons in Tessier suggest there is no obligation for
ICBC to remind a plaintiff of the requirements of s. 24(5): Tessier at
para. 21.

[104]     In my
view, Tessier addresses a different issue than was argued in this case.
In Tessier, the court observed that the claimant was not advised of the
requirements of s. 24(5) of the Act; Barrow J. said he would not
impose an obligation on ICBC to advise someone “as to how they might discharge
the obligation” under the section. He did not preclude a finding that ICBC might
be obliged to inform an insured that they have an obligation without advising
the person as to how they might discharge the obligation. There is a difference
between knowing about the obligation and knowing how to discharge the
obligation. The court concluded that costs should not be awarded against the
unsuccessful claimant.

[105]     However,
it seems to me that most unsophisticated people are not well-informed
concerning many provincial statutes and in particular the Act. It seems
unfair and against the public’s expectations that ICBC neglects their general
responsibility to inform prospective claimants of the importance of the unique
requirement to take steps to comply with s. 24(5) to identify a negligent
motorist. It is clear that the court is not permitted to grant judgment in a plaintiff’s
favour but there is no statutory obligation to mentioning the risks of failing to
meet the technical requirements of the Act deprives claimants of a
judgment for their claim.

[106]     It seems
to me ICBC fulfills a public duty in its role under the Act and is responsible
for administration of the public automobile insurance scheme.

[107]     ICBC could
easily have told the plaintiff plainly that they were unable to give any
information concerning the claims process and warn her to pay attention to the requirements
of s. 24.

[108]     It seems
to me that ICBC’s role in communicating with the plaintiff establishes a relationship
of mutual expectations that they will deal fairly with each other. The
plaintiff is insured by ICBC and the corporation is obliged to adjust the claim
in the context of their continuing relationship. If the policy required ICBC to
make efforts to inform their insured about the necessity of efforts as a
precondition to judgment, then words spoken by the adjuster to the plaintiff could
alert the claimant to the impending risks of compromising the claim by failing
to address s. 24(5) when making their claims; this is even more important
because ICBC is aware that the claim may be denied early in the process.

[109]     To establish
a public policy placing ICBC under an obligation to inform victims of
hit-and-run accidents that there is a requirement to take steps beyond simply
reporting their claim to ICBC would be a substantial departure from the current
jurisprudence concerning that type of claim; it would require a change to
s. 24 of the Act.

[110]     In the
past Tessier has been relied on for the proposition that ICBC is not
required to notify or inform their insureds about their obligations under
s. 24(5). As I have observed, in my view, Tessier did not conclude
that ICBC was not required to inform claimants that there was an obligation
under ss. (5); it concluded that they were not obliged to inform the
claimant about which steps would be necessary.

[111]     Unfortunately,
that does not answer the policy question regarding ICBC’s responsibility to
victims of hit-and-run accidents.

[112]     In my
view, ICBC has policy obligations that extend beyond their mere role as an
adversary in processing “hit and run” claims. ICBC operates in the public
interest and it would be contrary to public policy and to a harmonious
contextual interpretation of the legislation to allow it to escape claims that
could be properly advanced if they were in the public interest.

[113]    
In Niedermeyer v. Charlton, 2014 BCCA 165 the Court of Appeal addressed
the public policy aspect of releases designed to shield the negligent driver of
a motor vehicle from liability for an auto accident. Although the issue was
different, Garson J.A. addressed the role of ICBC in administering the
universal automobile insurance scheme designed to provide coverage for injuries
sustained in car accidents. She said:

In my view, the ICBC regime is intended as a benefit for the
public interest just as is human rights legislation. It would be contrary to
public policy and to a harmonious contextual interpretation of the legislation
to allow private parties to contract out of this regime.

[114]    
In my view, the public policy issue on this point should be addressed by
the legislature; it can impose on ICBC an obligation to inform its insureds of
the more obscure aspect of s. 24(5).

[115]     The
principle was more clearly articulated in Esau v. Co-operators Life
Insurance Company, 2006 BCCA 249 where Levine J.A. discussed the problems
that had arisen in the imposition of limitation periods on disability insurance
claims where unsophisticated claimants inadvertently miss limitation periods
because of difficulties around the legislation. She said:

[56]      The confusion that results from the“labyrinthine”
statutory scheme and the lack of information about limitation periods is
compounded by the insurers’ ongoing references in their correspondence to
appeals and time limits to submit additional information. Lawyers know the
difference between an appeal and an action for breach of contract, but in the
absence of any clear information about the process for disputing a denial of a
claim, including information regarding the relevant limitation period, a
layperson, and especially a layperson suffering from a mental disability, is at
a serious disadvantage.

[57]      It is clear that insurers have no intention of
voluntarily following judicial recommendations that they provide clear
information about the effect of their denial of coverage. As my colleague
points out, that is understandable, given the confusion arising from
inconsistencies between statutory and contractual limitation periods and from
the statutory scheme.

[58]      So I make yet another judicial plea for the
Legislature to act to relieve consumers, insurers, and the courts from this
untenable situation in which disabled persons are experiencing the stress of
technical legal battles rather than the peace of mind their disability
insurance is intended to provide

[116]    
Levine J.A.’s remarks are apposite to the circumstances of this case.
Motor vehicle accident victims need and expect peace of mind when dealing with
ICBC in regard to hit-and-run claims. There is no current obligation to compel
the corporation to inform claimants of the existence of s. 24(5) so as to
alert those people of the risks and pitfalls that arise if they fail to take
necessary steps to identify the other motorist.

[117]     I have
concluded that the plaintiff’s failure to take any steps to identify the owner
or driver of the vehicle that collided with her, except for reporting to ICBC
and speaking to the local fire captain, were insufficient to meet the conditions
necessary to obtain a judgment as prescribed in s. 24(5) of the Act.
That section precludes me from considering the actions of ICBC in the
assessment of the plaintiff’s obligations; under the Act the question is
whether the court can grant judgment when the claimant has failed to meet the
test. On the basis of the evidence and the authorities, I am not able to grant
judgment to the plaintiff despite the above policy concerns.

[118]     The
remaining question is whether ICBC has waived its right to rely on s. 24(5)
to deny the claim or if it is a stopped from relying on that section in this
proceeding.

Waiver

[119]    
The plaintiff contends that ICBC’s failure to notify the plaintiff of
her obligations to take steps to identify the owner/driver as a precondition to
obtaining judgment should be interpreted as waiving their right to rely on that
defence. The claimant relied on Dunn where Chiasson J.A. described the
two elements of a waiver claim:

[45]      As the trial judge recognized, the elements of
waiver are “that the party waiving had (1) a full knowledge of rights; and (2)
an unequivocal and conscious intention to abandon them”:Saskatchewan River
Bungalows at 499.

[120]    
The plaintiff argues that while ICBC does not have a legal or statutory
obligation, it has an equitable obligation to inform its insureds of their
obligations and consequences following an accident caused by an unidentified
motorist’s negligence or to obviate the possibility of the claimant assuming that
ICBC has accepted the claim without the need to take further steps.

[121]     Victims of
unidentified motorists who do not take steps required under s. 24(5) lose
access to the $200,000 fund designed to compensate the innocent victim. The
plaintiff contends that claimants face serious losses when claims are defeated
because they failed to take “efforts sufficient to satisfy section 24(5) (that)
could have been easily and inexpensively satisfied”.

[122]     Typically claimants
fail to take steps to identify the negligent driver in the expectation that
ICBC is administering and adjusting their claim and will not act to their
prejudice. This includes an expectation that ICBC will bring s. 24(5) to
their attention. In this case there was no evidence of what expectations the
plaintiff held concerning ICBC’s role.

[123]     The
plaintiff argues that ICBC is overwhelmingly in the best position to inform
their insureds on the process, and when they fail to do so they knowingly allow
the injured claimant to fall into the trap that is s. 24(5).

[124]     Nevertheless,
the evidence in this case does not satisfy me that in its administrative
processing of this hit-and-run claim ICBC consciously abandoned its rights when
staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision
or practice of withholding information concerning s. 24(5) of the Act
while at the same time addressing Ms. Li’s claim could not operate as a
waiver of their right to rely on the provisions of s. 24(5) to obtain
judgment.

[125]     Nothing in
the evidence satisfied me that ICBC had considered the plaintiff’s claim and “unequivocally
and consciously” elected to abandon its protection under s. 24(5).
Further, if a hit and run claim proceeds to trial, ss. (5) is not a
section of the Act that could be waived by ICBC; the section prevents
the court granting judgment unless satisfied that the claimant has met the
obligation under ss. (5). Although I do not decide the point, it seems to
me nothing would prevent the parties from making admissions of facts necessary
to prove compliance with the subsection; judgment could then be granted.

Estoppel

[126]     The
plaintiff relied on Dunn as authority for the proposition that estoppel should
prevent ICBC from relying on s. 24(5) in defending this claim. She
contends there can be a bar to a defence if one party has allowed the other to
assume that it was not intending to rely on a statutory right which was later
asserted to defend the first party’s claim. To succeed the plaintiff is
required to show that ICBC’s conduct was unconscionable in so far as she was
allowed to believe that ICBC would not rely on s. 24(5) of the Act.

[127]    
She argues from Dunn that the applicable principles of estoppel
are as follows:

[46]      In Miracle v. Travellers Indemnity Co. of Canada,
1991 CanLII 58 (SCC), [1991] 2 S.C.R. 50, Sopinka J., for the Court, set out
the elements of promissory estoppel:

[13]      The principles of
promissory estoppel are well settled. The party relying on the doctrine must
establish that the other party has, by words or conduct, made a promise or assurance
which was intended to affect their legal relationship and to be acted on.
Furthermore, the representee must establish that, in reliance on the
representation, he acted on it or in some way changed his position.

[128]    
In his analysis, Chiasson J.A. said:

[60]      In Erickson v. Jones, 2008 BCCA 379 (CanLII),
this Court discussed the so-called modern approach to estoppel. A starting
point is Trethewey-Edge Dyking District v. Coniagas Ranches Ltd., 2003
BCCA 197 (CanLII),12 B.C.L.R. (4th) 46. In that case, Levine J.A., with Prowse
J.A. concurring, at para. 40, quoted the following passage from Lord
Denning M.R.’s judgment inCrabb v. Arun District Council, [1975] 3 All
E.R. 865 at 871 (C.A.), as setting out the basis for proprietary estoppel:

The basis of this proprietary
estoppel – as indeed of promissory estoppel – is the interposition of equity.
Equity comes in, true to form, to mitigate the rigours of strict law. The early
cases did not speak of it as “estoppel”. They spoke of it as “raising an
equity”. If I may expand that, Lord Cairns said in Hughes v. Metropolitan
Railway Co [(1877) 2 App Cas 439 at 448, [1874-1880] All E.R. Rep 187 at
191]:“…it is the first principle upon which all Courts of Equity proceed…”
that it will prevent a person from insisting on his strict legal rights –
whether arising under a contract, or on his title deeds, or by statute – when
it would be inequitable for him to do so having regard to the dealings which
have taken place between the parties. What then are the dealings which will
preclude him from insisting on his strict legal rights? … Short of an actual
promise, if he, by his words or conduct, so behaves as to lead another to
believe that he will not insist on his strict legal rights – knowing or intending
that the other will act on that belief – and he does so act, that again will
raise an equity in favour of the other, and it is for a court of equity to
say in what way the equity may be satisfied. The cases show that this equity
does not depend on agreement but on words or conduct. …

[Emphasis added by Levine J.A. ]

[129]    
For the plaintiff to succeed on this point, I must be satisfied that
ICBC’s silence during the first several weeks after the accident about Ms. Li’s
obligations to identify the other motorist was behaviour that led her to
believe they would not insist on compliance with s. 24(5) as necessary for
her to obtain a judgment in this action.

[130]     The first
factor to be considered is that ICBC does not have any control over the
application of s. 24 once a trial has commenced, in the absence of a
settlement before judgment, or an agreement on the facts. Section 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.

[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.

[132]     Second,
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 unidentified
motorist. ICBC’s first indication to the plaintiff that her claim would not be
accepted as a hit-and-run was October 28, 2010 when she was informed that her
failure to obtain the plate number at the accident scene was fatal to her
entitlement to damages. Since the plaintiff’s first report to ICBC they
continued to process her accident benefits claim; these benefits did not depend
on the liability of the unidentified motorist.

[133]     There is
no indication in the agreed statement of facts that the plaintiff relied on the
absence of information from ICBC in failing to take steps to identify the other
driver. I am prepared to infer that the plaintiff was not aware of her obligations
under s. 24(5), but there is no evidence about her state of mind or
intentions concerning communications with ICBC or the absence of information
from them. She might have acted differently had she been better informed about
s. 24(5) but the evidence is lacking on that point.

[134]     Thus, I
cannot construe ICBC’s actions as making “a promise or risk assurance which was
intended to affect their legal relationship and to be acted on”. To succeed in
establishing estoppel, the plaintiff must have proved that she acted on the
representation and in some way changed her position.

[135]     The
evidence does not satisfy me that the plaintiff has met this element of the
test.

[136]     Accordingly,
I decline to grant a judgment on the basis that the claimant has failed to
establish that she made all reasonable efforts to ascertain the identity of the
unknown owner and driver of the vehicle that struck her or that the identity of
that person is un-ascertainable.

“The
Honourable Mr. Justice Armstrong”