ICBC and Basic Compulsory Autoplan Coverage (12:X)

ICBC is the sole provider of basic insurance for non-exempt vehicles in BC. Exempt vehicles are described in sections 43–44 of the IVA and also in section 2 of the IVR. For most vehicles owned, leased or operated in BC, third party liability coverage up to $200,000 is only available from ICBC. Full coverage for exempt vehicles, extended coverage in excess of the basic coverage (third party liability insurance over $200,000, IVR, s 67), and collision (“own damage”) insurance may be purchased from either ICBC or from private insurers. See Section IV: Optional Insurance, below. Note that private insurers may have their own requirement for coverage that may be above and beyond the requirements of ICBC

Vehicles licensed in BC are required by law to carry basic compulsory coverage, which is evidenced by a certificate of automobile insurance issued under the IVA to someone licensed under the MVA (i.e. the “insured”).

NOTE: The definition of “the insured” varies somewhat from section to section in the IVA and IVR.

Driving while uninsured is an offence (MVA, s 24(3)(a)) which carries a maximum penalty of a fine of up to $250 and/or imprisonment of up to three months (MVA, s 24(5)(a)). Driving an uninsured vehicle is also an offence (MVA, s 24(3)(b)) which carries a fine of at least $300 and no more than $2,000 and/or imprisonment for at least seven days and no more than six months (MVA, s 24(5)(b)).

A. Scope of Coverage

Subject to various limitations and exclusions, basic compulsory coverage is set out in the IVR and provides the insured with:

• indemnity for third party legal liability (Part 6);
• accident benefits; no-fault benefits payable for death or injury (Part 7);
• coverage for damages caused by uninsured or unidentified motorists (Part 8);
• first party coverage (Part 10);
• inverse liability (Division 1 of Part 10); and
• underinsured motorist protection (UMP) (Division 2 of Part 10).

B. Third Party Legal Liability: Part 6 of the IVR

1. Indemnity

This insurance indemnifies the insured against liability imposed on the insured by law for the injury or death of another, and/or loss or damage to another’s property, to a total limit of $200,000 (IVR, s 67), to be shared among the victims of a motor vehicle accident (Schedule 3, s 1). The base limit of liability is $500,000 in claims made for a bus, and $300,000 in claims made for a taxi or limousine. Extended Third-Party Legal Liability coverage may be purchased at the insured’s discretion. (See Section IV: Optional Insurance, below). If the insured is found legally liable, and no extended coverage has been purchased, he or she is responsible for payment of any claims in excess of the above limits.

2. Who is Covered

The definitions of “insured” for this part of the IVR may be found in IVR, s 63. For our purposes, the most relevant definitions of “insured” are:

• a) a person named in an owner’s certificate; or
• b) b) an individual who operates the vehicle described in the owner’s certificate with the consent of the owner; or
• c) c) an individual who operates the vehicle described in the owner’s certificate while being a member of the owner’s household.

3. Extension of Indemnity

According to IVR, s 65, indemnity is extended to an insured who operates a motor vehicle not described in an owner’s certificate issued to the insured (i.e. someone else’s car). For the purposes of s 65 only, “insured” includes the following:

• a) a person named as an owner in an owner’s certificate;
• b) a member of the owner’s household;
• c) an employee or partner of the owner, where their regular use of the vehicle described in the owner’s certificate is provided for; and
• d) the spouse of an employee or partner described in paragraph (c) where the spouse resides with the employee or partner.

Note that, absent this expanded definition, “insured” would not otherwise cover a member of the insured’s household operating a vehicle not described in an owner’s certificate issued to the insured.

4. Restrictions on Indemnity

Section 65(2) of the IVR states that if an insured is operating a motor vehicle that is not described in an owner’s certificate issued to him or her, indemnity is not extended to the insured if:

• the insured is operating the motor vehicle in connection with the business of a garage service operator;
• the motor vehicle is owned or regularly operated by the insured;
• the motor vehicle is used for carrying passengers for compensation or hire or for commercial use;
• the motor vehicle is in fact not licensed under the MVA (or similar legislation) and the insured does not have reasonable grounds to believe the motor vehicle is licensed; or
• the insured is operating the vehicle without the consent of the owner and does not have reasonable grounds to believe that he has the consent of the owner.

Section 77 provides, in part, that an owner seeking to rely on the coverage provided for a vehicle not named in the owner’s certificate cannot do so if he or she also owns (or leases) the non-described vehicle that has been involved in the accident (i.e. you cannot just insure one vehicle and expect this to cover all of the other vehicles in your fleet).

Neither garage service operators nor their employees are covered by the owner’s certificate issued for customers’ vehicles while the vehicle is in the care, custody, or control of the garage service operator or his or her employee for a purpose relating to the business. “Garage service operator” is defined in Part 1 of the IVR as “the operator of a motor vehicle service facility and includes a dealer, service station operator, motor vehicle repairman, auto body shop repairman, wrecker operator, and the operator of a vehicle parking or storage facility” (s 57). To offset the effect of s 57, the garage service operator must obtain special coverage pursuant to s 150.

5. What is Covered

In addition to the legal liability coverage (i.e. s 65 indemnification) outlined above, IVR ss 67 and 69 states that ICBC may also pay for:

• a) “reasonable” emergency medical aid, so long as reimbursement is not provided to the insured by another insurer or under another Part;
• b) emergency equipment or supplies provided to the insured (i.e. fire extinguishers, jacks or other necessary emergency equipment or supplies);
• c) all or some (depending upon the circumstances) of the costs taxed against the insured in an action, in accordance with the Supreme Court Civil Rules, BC Reg 56/2019 for aggregated general and specific damages; and
• d) the pre-judgment interest under the Court Order Interest Act, RSBC 1996, c 79 or analogous legislation of another jurisdiction on that part of the judgment, and pay post-judgment interest under the Interest Act, RSC 1985, c I-15 or analogous legislation of another jurisdiction on that part of the judgment, both within the limits set out in s 1 of Schedule 3 (IVR).

6. What is Not Covered

ICBC will not indemnify an insured for certain types of damage, including:

• loss or damage to property carried in or on a vehicle owned, rented or in the care, custody or control of an insured (s 72.1); or
• liability directly or indirectly arising out of the operation of attached equipment (i.e. machinery or equipment that is mounted on or attached to the vehicle, and which is not required for the safe operation of that vehicle) at a site where such equipment is operated, unless the attached equipment is used in accordance with the IVR (s 72(2)); or
• under Part 4, 6, 7, or 10 in respect of injury, death, loss or damage arising out of radioactive, toxic, explosive or other hazardous properties of prescribed substances under the Atomic Entergy Contract Act (IVR, s 56(1)(a)); or
• under IVA, ss 20 (uninsured vehicles) or 24 (hit and run accidents), under IVR, s 49.3 (default of premiums); or
• under Part 7 or Part 10 of the IVR in respect of any injury, death, loss or damage arising, directly or indirectly out of a declared or undeclared war or insurrection, rebellion or revolution (IVR, s 56(1)(b)); or
• under IVA, ss 20 or s 24, under IVR, ss 49 or 49.3(1)(b), Part 6 or Part 10 in respect of punitive or exemplary damages or other similar non-compensatory damages (IVR, s 56(1)(c)); or
• a general or special assessment, penalty or premium, payable under the Workers’ Compensation Act (British Columbia) or similar Act (IVR, s 72.1(1)(a)).

7. Duties of the Insured

An insured has a duty to report to ICBC mid-term changes, as required by s 9 of the IVR. These changes may result in an increase or decrease in the premiums paid to ICBC. The insured named in the owner’s certificate is obligated to report to an ICBC agent the following:

• a) any change in the insured’s address within 10 days after the change;
• b) any acquisition of a substitute vehicle for the vehicle described in the certificate within 10 days after the acquisition;
• c) any anticipated change in the use of the vehicle described in the certificate to a use to which a different insurance rate applies before such a change;
• d) any anticipated change in the territory in which the vehicle described in the certificate is principally used before such a change; and/or
• e) any change in the location of where the insured vehicle is primarily located when not in use, within 30 days of the change, if the premium for the vehicle is established on the basis of this location, unless the vehicle is used for vacation purposes.

Furthermore, ICBC is not liable to indemnify an insured who, to the prejudice of ICBC, fails to comply with duties outlined in s 73 of the IVR. This section states that an insured:

• a) must promptly give ICBC written notice of any claim made for the accident, including any other insurance held by him or her providing coverage for the accident;
• b) must help secure evidence and information and the attendance of any witnesses;
• c) must cooperate with ICBC in the defence of any action or proceeding, or appeal, taken by ICBC on behalf of the insured;
• d) must allow ICBC to inspect an insured vehicle at any reasonable time;
• e) must, on receipt of a claim, legal document or correspondence relating to a claim, immediately send a copy to ICBC;
• f) must not voluntarily assume liability or settle any claim except at his or her own cost; and
• g) must not fail to cooperate with ICBC in the investigation, settlement or defence of a claim or action.

8. Duties of the Corporation

On receipt of a notice of a claim under Part 6 of the IVR, ICBC must, at its expense, assist the insured by investigating and negotiating a settlement where in its opinion such assistance is necessary, and defend the insured against any action for damages (s 74).

9. Rights of the Corporation

Upon assuming the defence of an action for damages brought against an insured, ICBC has the right, subject to section 79 of the Act, to the exclusive conduct and control of the defence. This right includes, but is not limited to, the right to appoint and instruct counsel, to admit liability, to negotiate, and/or settle out of court (IVR, s 74.1).

10. Forfeiture of Claims and Relief from Forfeiture

Certain conduct by the insured or applicant can result in “forfeiture”, whereby the insured is deemed to have given up his or her right to be indemnified by ICBC. In this situation, the claim for indemnification becomes invalid. Apart from exclusions, a claim may be forfeited under s 75 of the IVA if:

• a) an applicant for coverage falsely describes the vehicle for which the application is made to the prejudice of the insurer (s 75(a)(i));
• b) an applicant for coverage knowingly misrepresents or fails to disclose a fact that was required to be stated in the application (s 75(a)(ii));
• c) an insured violates a term or condition of or commits a fraud in relation to the plan or the OIC (s 75(b); see Section III.B.11. Breaches of Conditions and Consequences;
• d) an insured makes a “wilfully false statement” with respect to a claim under a plan of insurance (s 75(c)).

NOTE: According to Brooks v Insurance Corporation of British Columbia, 1994 CanLII 3304 (BC SC), per Bouck J, the purpose of s 19(1)(e) (now IVA, s 75(c)) is to prevent intentionally deceitful misstatements for the purpose of defrauding the insurer; “exaggerated guesses” by an insured as to the value of a lost motor vehicle, or figures inserted for the purpose of goading an insurer into action, are insufficient to deny coverage unless a fraudulent purpose on the part of the insured is shown.

However, ICBC may relieve the insured from forfeiture under s 75 if said forfeiture would be “inequitable”. Furthermore, ICBC must relieve an insured from forfeiture if: a) it is equitable to do so, and b) the insured dies or suffers a loss of mind or bodily function that renders the insured permanently incapable of engaging in any occupation for wages or profit (IVA, s 19(3)).

Because there are various definitions of “insured” in the IMVAR (and IVR), the only reasonable interpretation of s 19 (the relief of forfeiture provision discussed above) is that it is to be read broadly to include all of the definitions: see Khatkar v Insurance Corporation of British Columbia (1993), 25 CCLI (2d) 243 (BC Prov. Ct.), per Stansfield Prov. Ct. J.

11. Breach of Conditions and Consequences

Insured persons must be careful to abide by the terms and conditions of their plans and OICs. Coverage may be lost if an insured breaches certain conditions, including, but not limited to:

• a) failing to comply with s 73 of the IVR, to the prejudice of ICBC (See Section III.B.7. Duty of Insured);
• b) operating a vehicle when not authorized and/or not qualified to do so (IVR, s 55(3)(a));
• c) using the vehicle in illicit trades, racing, or avoiding arrest or other police action (IVR, s 55(3)(b), (c) and (d));
• d) towing an unregistered and/or unlicensed trailer (IVR, s 55(4));
• e) using the vehicle for a different purpose than the one declared by the insured in his or her application for insurance, except as “occasionally” permitted (IVR, s 55(2(a)); or
• f) naming in the owner’s certificate someone as the principal operator of the insured vehicle who is not actually the principal operator (IVR, s 75).

NOTE: When the court determines who the principle driver is, it will consider the entire period covered by the insurance plan: see Dehm v Insurance Corporation of British Columbia, 1981 CanLII 608 (BC SC).

Despite any breach of condition by an insured, insurance money is still payable to third parties by ICBC in cases where the insured person was:

• a) incapable of properly controlling the vehicle because of the influence of alcohol or drugs;
• b) convicted under any one of the following sections of the Criminal Code, RSC 1985, c C-46 (see also MVA Regulations, s 28.01 Table 4):
• s 220 (criminal negligence causing death);
• s 221 (criminal negligence causing bodily harm);
• s 236 (manslaughter); s 249 (dangerous operation of a motor vehicle);
• s 252(1) (failure to stop at an accident),
• s 253 (driving while impaired or with a blood-alcohol level exceeding 80 milligrams per 100 millilitres);
• s 254(5) (refusal or failure to give a breath sample);
• s 255 (impaired driving causing bodily harm or death);
• s 259 (4): driving while disqualified;
• a conviction under the Youth Criminal Justice Act (Canada) for any of the above offences;
• “similar result” or conviction of these offences in a jurisdiction in the U.S.; or
• a conviction under ss 95 or 102 of the MVA or similar convictions under another Canadian or American jurisdiction (both concern driving while prohibited); or

• c) permitting another person to use the insured vehicle in a way that results in a conviction for any of the offences outlined above (IMVA Regulations, s 55).

12. Making a Claim Under Part 6: Procedural Steps and Considerations

a) Limitation Period

Section 76 of the IVR provides that any action started to enforce third-party liability for bodily injury and/or property damage (i.e. claims made under Part 6 of the IVR) must comply with the LA section 3(2)(a) of the LA provides a two-year limitation period for actions for damages related to injuries to a person and/or property, including negligence claims against the driver and/or the owner of the vehicle driven.

Minors are not subject to a limitation period (LA, s7). After the minor has reached age 19, s 3(2)(a) begins to apply and the two-year limitation period commences. However, if the minor’s guardian or litigation guardian receives a Notice to Proceed, the limitation period is initiated notwithstanding the minor status (LA, s 7(6)). The Notice to Proceed must meet the requirements of the LA, ss 7(7)(a-g).

It is important to be aware of the limitation periods associated with IVR Part 7 benefits, see Section III.C below.

b) Duties Outlined in Section 73 of the IVR

An insured must comply with s 73 of the IVR. Failure to do so may result in a claim being denied. See Section III.B.7. Duties of the Insured.

c) Service on ICBC

A claimant who starts an action for damages caused by a motor vehicle or trailer must also serve ICBC with a copy of the Notice of Civil Claim the same way the defendant is served and must also file proof of service in the court in which the action is started. No further step in the action can be taken until eight days after the filing of the service in court (IVA, s 22).

d) Information and Evidence

ICBC has a broad right to compel the insured and others to provide information set out in the IVA. Specific types of information that ICBC can demand are noted in s 11 (combined forms and information); s 27 (accident report); s 28 (medical reports for accidents before April 1, 2019); s 29 (employers’ reports); and s 30 (superintendent’s records).

According to McKnight v General Casualty Insurance Co. of Paris, 1931 CanLII 473 (BC CA), an insured need not provide information or evidence to an insurance company respecting a breach if the company is contemplating using such a breach to deny coverage to the insured. This is not considered to be refusing to cooperate with the insurer in the defence of the action. However, the insured may still have to provide information regarding the accident itself.

C. Accident (“No Fault”) Benefits: Part 7 of the IVR

1. What are “No Fault” Benefits?

Regardless of who is at fault in an accident, ICBC pays benefits for injuries to the occupants of a licensed vehicle and pedestrians and cyclists injured by a vehicle described in any owner’s certificate. The accident benefits, commonly called “no fault” benefits, are payable to an insured for death or injury caused by an accident arising out of the owner’s ownership, use, or operation of a vehicle in Canada or, with some restrictions, in the U.S. (IVR, s 79(1)).

In Amos v ICBC, 1995 CanLII 66 (SCC), the Supreme Court of Canada laid out a two-part test for determining if death or injury falls within the scope of s 79(1). The following must be met:

• a) the accident must result from the ordinary and well-known activities to which automobiles are put; and
• b) there must be some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the plaintiff’s injuries and the owner’s ownership, use, or operation of his or her vehicle. That is, the connection between the injuries and the ownership, use, or operation of the vehicle must not be merely incidental or fortuitous.

Amos reversed the BC Court of Appeal judgment and held that the plaintiff’s injuries were causally connected to the ownership and use of his vehicle. The plaintiff was shot while driving away from a gang who was trying to gain entry into his motor vehicle. However, Major J. noted that if the gunshots had been truly random and not causally connected to the plaintiff’s ownership of the vehicle then his injuries would not have been covered under s 79(1).

2. Who is Covered?

Section 78 of the IVR contains a definition of "insured", which includes, in part:

• a person named as an owner in an owner's certificate;
• a household member of a person named in an owner's certificate;
• an occupant of a vehicle that is licensed in BC and is not exempted under section 43 of the IVA (vehicles from the federal or a provincial government other than BC);
• any occupant of a vehicle that is not required to be licensed in BC, but is operated by a person named in a driver's certificate;
• a cyclist or pedestrian who collides with a vehicle described in an owner's certificate;
• a BC resident who is entitled to bring an action for injury or death under section 20 (uninsured vehicles) or 24 (remedy for hit and run accidents) of the IVA; or
• the personal representative of a deceased insured.

3. Benefits Payable

a) Disability Benefits for Employed Persons

ICBC is obligated to pay “no fault” benefits to an insured person if:

• a) within 20 days of the accident, the injury completely disables the insured; and
• b) the insured is an “employed person” (IVR, s 80).

An “employed person” is defined in s 78 of the IVR as a person who, on the day of the accident or for any 6 months during the previous 12 months immediately preceding the accident, is employed or actively engaged in an occupation for wages or profit. Eligible insured persons who are completely unable to engage in employment can collect either 75 percent of their average gross weekly earnings or $300 per week, whichever is less, for the length of the disability or 104 weeks, whichever is shorter. See section 80 and Schedule 3 of the IVR for more details.

NOTE: There is a waiting period of seven days before disability benefits are paid out. Also, no benefits are paid for these initial seven days (IVR, s 85).

b) Disability Benefits for Homemakers

Insured persons who are homemakers may also be eligible for no fault benefits. If a homemaker sustains an injury from an accident, and it substantially or continuously disables the insured from regularly performing most household tasks, ICBC will compensate the insured for the duration of the disability or 104 consecutive weeks, whichever is shorter (IVR, s 84(1)). The insured will be compensated for reasonable expenses incurred by the insured in hiring a person to perform household tasks on the insured’s behalf, up to a maximum of $145 per week (IVR, Schedule 3, s 2). However, there is no compensation for household tasks performed by an insured’s family members (IVR, s 84(2)).

c) Disability Beyond 104 Weeks

If at the end of the first two years, the total disability continues, an insured receiving benefits under s 80 or 84 of the IVR can continue to receive the payments for the duration of the disability or until the age of 65, whichever is shorter (IVR, s 86). The no fault benefits will be reduced by the amount of the Canada Pension Plan benefits if and when such benefits become payable to the insured (IVR, s 86).

NOTE: Any benefits payable under s 80, 84, or 86 of the IVR may be reviewed every 12 months and terminated by ICBC on the advice of its medical adviser (IVR, s 87).

d) Medical or Rehabilitation Benefits

In addition to the disability benefits described above, ICBC is obligated to pay all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing service, or for necessary physiotherapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis (IVR, s 88(1)). In appropriate cases, ICBC may also provide attendant care to the insured to perform duties normally undertaken by the insured (IVR, s 88(2)(c)). Under Schedule 3, s 3, ICBC’s liability for rehabilitation benefits is limited to $150,000. Also, ICBC is not liable for expenses payable to the insured under a medical, surgical, dental, or hospital plan, or paid or payable by another insurer (s 88(6)).

e) Death Benefits

In the event of the applicant’s death, ICBC will pay:

• a) up to $2,500 for funeral expenses (see s 91 and s 4 of Schedule 3 of the IVR);
• b) $5,000 if the deceased was a “head of a household” (i.e. was providing the “major portion” of household income), plus a Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s 92–94 and Schedule 3 ss 5, 6 and 7 of the IVR);
• c) $2,500 if the deceased was a “spouse in household” (i.e. was supporting the household or helping to raise dependent children), plus a Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s 92–94 and Schedule 3 ss 5, 6, 8 of the IVR); and
• d) $500 to $1,500 for the death of each dependent child, depending on the child’s age (see Schedule 3, s 5 of the IVR).

NOTE: Status with respect to “head of household”, “spouse of household” or “dependent child” is determined at the date of death resulting from a motor vehicle accident.

In addition, the Family Compensation Act, RSBC 1996, c 126 [FCA], creates a statutory right for claims to be brought by the surviving spouse, parent, grandparent, or child of the deceased, in some cases appropriately as against ICBC. The FCA provides a statutory scheme for fatal accident compensation that abrogated the common law rule that no one has a cause of action in tort against a person who has wrongfully caused the death of a third person (see Gaida Estate v McLeod, 2013 BCSC 1168). The FCA intends to place the claimant in the same economic position that he or she would have enjoyed but for the death of his or her spouse, parent or child. There are only a limited number of family members that would be eligible for compensation under the FCA, and the definition of who qualifies for compensation is important. The starting point to determine eligibility for bringing a claim begins with section 1 of the FCA. Compensation under the FCA is generally limited to the following:

1. damages for loss of love, guidance and affection (generally for infant children of the deceased only);
2. damages for the loss of services that would otherwise have been provided by the deceased to the remaining family members;
3. damages for the loss of financial support to the remaining family members;
4. limited out-of-pocket expenses incurred as a direct result of a death (funeral and related expenses); and,
5. damages for loss of inheritance.

f) Reinstatement and Revival of No Fault Benefits

No fault benefits can be reinstated if a person receiving benefits goes back to work only to find that the injury comes back and prevents them from working (Brewer v ICBC 1999 CanLII 6570 (BCSC)). This includes a situation where a plaintiff goes back to work prior to the end of the 104-week period and leaves work after the end of the 104-week period (Symons v ICBC, 2016 BCCA 207).

4. Restrictions and Exclusion of Benefits

Claimants should check the IVR carefully to find what restrictions are applicable to a given claim for benefits. The following is merely a brief summary of some very complicated provisions. Generally, ICBC is not liable to pay any of the benefits discussed above, in any of the following situations:

• if the applicant resides outside BC and the vehicle in which he or she was riding or driving at the material time was not designated in an owner’s certificate (s 96(a));
• if the applicant at the time of the accident was an occupant of, or was struck by, a vehicle that could not be licensed under the MVA or Commercial Transport Act (s 96(b)(i));
• if the death or injury resulted from the injured person’s suicide or attempted suicide, whether “sane or insane” (s 96(c));
• if applicant was an occupant of a vehicle being used in an illicit trade at the time of the accident (s 96(e)); or
• if the death or injury is a result of the applicant's medical condition, as distinct from an injury caused by the accident, unless the condition was itself a direct result of an accident for which benefits are provided under Part 7 of the IVR (s 96(f)).

Also, under s 90 of the IVR, ICBC may terminate an insured’s benefits if an insured refuses to undergo any:

• medical, surgical, or other similar treatment, which, in the opinion of the ICBC medical adviser and the medical practitioner attending the insured, is likely to relieve, wholly or partly, the insured’s disability; or
• retraining or educational program likely to assist in the insured’s rehabilitation.

If ICBC intends to terminate an insured’s benefit, ICBC must first give an insured at least 60 days notice in writing, by registered mail, of their intention to terminate benefits. Under section 90(3) of the IVR, the insured may, within that 60-day period, apply to the Supreme Court for an injunction against the termination of the benefits, on the ground that:

• the treatment required of the insured is unlikely to relieve the disability;
• the treatment may injuriously affect the balance of the insured’s health; or
• the treatment program is not likely to assist in rehabilitation.

5. Forfeiture and Breach of Conditions

The same provisions apply as those outlined under Third Party Legal Liability. These are contained in s 19 of the IVA and s 55 of the IVR. See Section III.B.10: Forfeiture of Claims and Relief from Forfeiture and Section III.B.11: Breach of Conditions and Consequences, above.

6. Making a Claim Under Part 7: Procedural Steps and Considerations

a) Limitation Period

Section 103 of the IVR provides that any action started to enforce no fault or accident benefits must do the following:

• the insured must have “substantially” complied with sections 97-100 (See Section III.C.6.b: Duties in Sections 97-100 of the IVR below); and
• the action must be started within two years after the date of the accident for which the benefits are claimed, or where benefits have been paid, the date the insured last received a payment. This limitation period also applies to minors. In other words, the limitation date for Part 7 actions for minors does not commence at age 19 but commences on the date of the accident.

b) Duties in Sections 97-100 of the IVR

An insured must meet the requirements set out in s 97-100 of the IVR. If an insured fails to do this to the prejudice of ICBC, ICBC may deny coverage of a claim. The following is a brief summary and claimants should refer to the IVR for more detail. The insured must comply with the following:

• give prompt notice to ICBC of the accident;
• provide a written report within 30 days of the accident;
• provide a proof of claim (a standard form authorized by ICBC and provided to applicants) within 90 days of the accident; and
• at ICBC’s request, promptly provide a certificate of an attending medical professional as to the nature and extent of the insured’s injury and the treatment, current condition, and prognosis of the injury;
• at ICBC’s expense and request, be medically examined by someone selected by ICBC;
• where applicable, permit a post mortem examination and/or autopsy.

NOTE: For liability to cease (i.e. coverage to be denied), ICBC must have suffered prejudice as a result of the applicant’ s failure to comply.

D. Uninsured Motorists or Unidentified Motorist (Hit and Run) Cases

1. Claims Against Uninsured Vehicles: Section 20 of the IVA

While it is against the law, there are some drivers who operate motor vehicles without any insurance. If a claimant suffers damages from an uninsured motorist, he or she is not without a remedy. Instead, the claimant may make a claim to ICBC for compensation.

a) Definition of Uninsured Vehicle

Under the current IVA, an “uninsured motorist” continues to be defined as someone who operates a motor vehicle without third party liability coverage of at least $100,000. When death, personal injury, or property damage results from the use of an uninsured vehicle, a claimant may apply to ICBC under s 20 for compensation.

b) Limitation Period

The claimant must meet the requirements set out in the Limitation Act. The claimant has two years from the date of the loss to start an action for personal injury, death, and/or property damage (LA, s 3(2)).

c) Rights and Obligations of ICBC

If ICBC receives such an application under s 20, it must forward a notice it to the owner or driver of the uninsured motor vehicle, by registered mail (IVA, s 20(3)). If ICBC pays out any amount under this section, it is subrogated to the rights of the person paid (i.e. the successful claimant). Also, ICBC may maintain an action in its name or in the name of the successful claimant against the person liable (IVA, s 20(11)).

After ICBC has given notice to the owner or driver of the uninsured vehicle (“the defendant”), it has control over the resolution of the case. ICBC is deemed to be the agent of the defendant for service of notice. Thus, the Claimant may start an action against the defendant by serving ICBC with a Notice of Claim in Small Claims or a Notice of Civil Claim in Supreme Court.

ICBC has the authority to settle or consent to judgement, at any time, in the name of the uninsured defendant. But, if the defendant responds within the time limit indicated in the notice, then ICBC is not entitled to recover from the defendant without a judgment (s 20(5)).

If the claimant serves the uninsured defendant directly and he or she does not enter an appearance or does not file a Response to Civil Claim, or does not appear at trial, or does anything that permits default judgment to be taken against him or her, then ICBC may intervene. ICBC can defend the action in the name of the defendant. ICBC’s acts are deemed to be the defendant’s acts (IVA, s 20(7)).

d) ICBC Liability Limited

There is a limit to how much ICBC will pay out for any individual claim made under section 20 of the IVA. Regardless of the number of claims or the number of people making claims, the limit of ICBC’s liability arising out of the same accident is $200,000, including claims for costs, pre-judgment, and post-judgment interest (see IVR, s 105 and Schedule 3, s 9(1)).

The insured and the claimant both have an obligation to seek other sources of coverage. Applicants may have other sources of insurance, including claims or benefits under the Workers’ Compensation Act, RSBC 1996, c 492, the Employment Insurance Act (Canada), RSC 1996, c 23, and/or the government of Canada or provinces or territories. It is important that applicants apply for all benefits they are entitled to under the above sources of coverage or other similar sources coverage since ICBC is relieved from paying the of judgment equal to what is provided by these sources.

Furthermore, applicants should also apply for all benefits and/or coverage from any private insurance that they may have as soon as possible. An applicant may have private insurance through their employer. ICBC may not be obligated to pay benefits that could have been received (note: need not actually receive) from another source. If a decision is made concluding that ICBC is not liable for these amounts, the limitation period for making a claim through the other source will most likely have ended. See section 81, 83 and 106 of the IVR for more details.

Also, see Section III.D.3. Exclusion of ICBC Liability, below.

NOTE: Any dispute as to entitlement or amount of damages an insured is entitled to recover must be submitted for arbitration under the Commercial Arbitration Act, RSBC 1996, c 55 (IVR, s 148.2).

NOTE: Excess underinsured motorist protection may still be purchased through insurers and presumably is intended to be covered under IVA Part 4 (Optional Insurance Contracts).

2. Claims Against Unidentified or Hit and Run Motorists: Section 24 of the IVA

Where personal injury, death, or property damage over $150 arises out of the use of a vehicle on a road in British Columbia and the identity of the driver and owner cannot be ascertained (or the ascertained owner is not liable, as would be the case if the vehicle had been stolen), the injured party may sue ICBC as nominal defendant. For accidents occurring outside BC, see Section III.E.1: Inverse Liability and Uninsured or Hit and Run Accidents Outside BC.

a) Reasonable Efforts to Ascertain Identity

In order for a claimant to make a claim or get judgment against ICBC under s 24 of the IVA, the court must first be satisfied that all reasonable efforts have been made to ascertain the identity of the owner and/or driver (IVA, s 24(5)). Leggett v ICBC, 1992 CanLII 1263 (BCCA), states that the critical time of taking steps to ascertain the identity of the driver is immediately at the scene of the accident, and that reasonable efforts must be interpreted in the context of the claimant’s position and ability to discover the driver or owner’s identity. This could include taking down the description of the vehicle, including the license plate number, if the claimant is able to at the scene. If the identity of those persons cannot be ascertained, ICBC is authorized to settle any such claims, or to conduct the defence of the case as it sees fit.

b) Written Notice to ICBC

To proceed with the claim, the claimant must give written notice to ICBC “as soon as reasonably practicable” and within six months of the accident (IVA, s 24(2).

c) Police Report Requirements

A claimant must make an accident report to the police (IVA, s 107(1)). More specifically, the claimant must:

• make a report to the police within 48 hours of discovering the loss or damage;
• get the police case file number for the police report; and
• on ICBC’s request, advise ICBC of the police case file number.

If a claimant fails to comply with the above without reasonable cause, then ICBC will not be liable to pay the claim made under s 24 of the IVA.

d) Limitation Period

Once notice has been properly provided, the claimant must also meet the requirements set out in the Limitation Act. The claimant has two years from the date of the loss to start an action for personal injury, death, and/or property damage (LA, s 3(2)).

3. Exclusion of ICBC Liability

There are certain situations where ICBC will not be liable to pay a claim made under section 20 and/or section 24 of the IVA. ICBC will not be liable:

• to a claimant, under s 24 of the IVA, who fails to comply with section 107(1) of the IVA without reasonable cause (see Section II.D.2.c): Police Report Requirements);
• to a claimant, under s 20 or 24 of the IVA, for loss or damage arising while the vehicle was in the claimant’s possession without the owner’s consent (i.e. stolen) (IVR, s 107(2)(a));
• for a claim under s 24 of the IVA, made by the Province, Canada, or a municipality, public or private utility, or other similar person in respect to damage to a highway (IVR, s 107(2)(b)).

4. Forfeiture and Breach of Conditions

The same provisions apply as those outlined under Section III.B.10: Forfeiture of Claims and Relief from Forfeiture and Section III.B.11: Breach of Conditions and Consequences, above. These are contained in s 19 of the IVA and s 55 of the IVR.

E. First Party Coverage Under Part 10 of the IVR

1. Inverse Liability and Uninsured or Hit and Run Accidents Outside British Columbia: Part 10, Division 1 of the IVR

a) Section 147 Claims: Inverse Liability

(1) What is Inverse Liability?

Inverse liability coverage is part of the basic insurance plan, which covers costs to vehicle repairs when an insured is involved in an accident out of British Columbia. More specifically, the basic compulsory coverage will pay for loss or damage to a BC vehicle resulting from an accident occurring outside BC. but in Canada or the U.S. if the insured does not have a right of action under the law of:

• the place where the accident happened; or
• the place where the person responsible for the accident is a resident (e.g. unidentified defendant following a hit and run collision).

(2) Who is Covered?

Section 147 of the IVR has its own definition of “insured”, which includes:

• (a) the person named as an owner in an owner's certificate or if deceased, his or her personal representative;
• (b) a person who can provide written proof that he or she is the beneficial owner of a commercial vehicle described in an owner's certificate; or
• (c) the renter of a vehicle described in an owner's certificate.

(3) What is Covered?

“Loss or damage” in this section means damage to the vehicle and does not include compensation for medical or rehabilitation costs. Compensation is to the extent to which the insured would have recovered if he or she had a right of action. In other words, ICBC will pay to the extent that the other driver is found liable (IVR, s 147). However, this amount is limited to the lesser of the cost of the vehicle repair, the declared value of the vehicle, or the actual cash value of the vehicle.

(4) Dispute Resolution

If the insured is found to be at fault or partially at fault, he or she will be responsible for paying for the remaining costs of repair to the vehicle, unless the insured person purchased collision coverage (see Section IV.B.2.1: Collision). If a dispute between the claimant and ICBC arises under this section, it must be arbitrated. Once the arbitrator adjudicates the dispute, the reasons for the decision must be published.

b) Section 148 Claims: Accidents in Nunavut, Yukon, Northwest Territories or U.S.A.

This section deals with the scenario of a person having a motor vehicle accident in Nunavut, the Yukon, or Northwest Territories, or the U.S. that involves an uninsured or unidentified motorist.

(1) Who is Covered?

A person involved in a motor vehicle accident may be entitled to compensation under section 148(2) of the IVR, if that person:

• is a person named as an owner in the owner’s certificate, or a household member of the person named as an owner in the owner’s certificate;
• suffers death or injury in the Nunavut, Yukon, Northwest Territories or the U.S.; and
• the vehicle responsible is an unidentified or uninsured vehicle.

(2) How Much is the Coverage?

ICBC’s liability (i.e. the payout) is limited to $200,000 (see Schedule 3, s 11 of the IVR). Payments are subject to adjustment if recovery or partial recovery is made from another party (IVR, s 148(2)).

(3) Exclusion or Limitation of Liability by ICBC

If a claim is made under this section, the claimant must be sure to comply with the requirements set out in s 148 of the IVR. ICBC will not be liable (i.e. ICBC will not compensate the claimant) in the following situations:

• if the insured has a right of recovery under an unsatisfied judgment;
• if the insured was operating a vehicle without the consent of the vehicle’s owner;
• if the insured fails to comply with s 148(4)b) to the prejudice of ICBC (see immediately below); or
• if the insured fails to comply with s 148(5) (see immediately below).

(4) Insured’s Obligations Under Section 148(4) and (5) of the IVR

Under section 148(4)(b) of the IVR, the insured:

• must file a copy of the originating process with ICBC within 60 days of the action commencing; and
• must not settle a claim without the written consent of ICBC

Under s 148(5) of the IVR, the insured (or his or her representative) must:

• for accidents involving an unidentified vehicle, report the accident, within 24 hours of the accident, to the police, or the administrator of any law respecting motor vehicles;
• file with ICBC, within 28 days of the accident, a statement under oath that: a) the insured has a cause of action arising out of the accident against the owner or driver of an unidentified or uninsured vehicle and b) setting out the facts in support of that statement; and
• at ICBC’s request, allow ICBC to inspect the insured’s motor vehicle that was in the accident.

NOTE: Payments made under s 148 will be deducted from the amount aninsured is entitled to under Parts 6 or 7 of the IVR (s 148(6) and (7)). Also, ICBC will not be liable to pay any benefit, indemnity, or compensation payable from another source, including: Workers Compensation, Employment Insurance, and any government bodies (s 106(1)).

(5) Dispute Resolution

Any dispute between the claimant and ICBC under this section must be arbitrated. The arbitrator who adjudicates the dispute must publish the reasons for the decision (IVR, s 148(8)).

2. Underinsured Motorist Protection (UMP): Part 10, Division 2 of the IVR

a) What is UMP Coverage?

$1 million of UMP coverage is part of the basic compulsory coverage motorists have with ICBC. It provides compensation against bodily injury or death for the victim of an accident caused by a motorist who does not carry sufficient insurance to pay for the claims. The maximum coverage under UMP is $2,000,000 (which an insured must pay an extra premium to purchase) for each insured person (Schedule 3, s 13 of the IVR). This limit includes claims for prejudgment and post-judgment interest and costs. See section 148.1(5).

b) Prerequisites for UMP Coverage

Generally, UMP coverage is available where an insured’s death or injury is caused by the operation of a vehicle operated by an underinsured motorist, and occurs in Canada or the U.S.

If an insured is making a claim for UMP coverage in the relation to a hit and run accident, there are additional requirements that need to be met. Under section 148.1(4), the following criteria must also be met:

• the accident must occur on a highway; and
• the accident must have physical contact between the insured vehicle and the unidentified vehicle, if it occurred in the Yukon, Northwest Territories, or U.S.

c) Who Is Covered?

Section 148.1 of the IVR has its own definition of “insured”. Note that the insured need not be in his or her car to be eligible for compensation. Under this section, “insured” includes, but is not limited to:

• a person named in the owner’s certificate and members of his or her household;
• any person who is an occupant of the insured vehicle;
• any person with a valid BC “driver’s certificate” (i.e. driver’s license) and members of his or her household; and
• any person entitled, in the jurisdiction in which the accident occurred, to maintain an action against the underinsured motorist for damages because of the death of one of the insured.

d) Who is Not Covered?

There are certain people who are not entitled to UMP coverage. Section 148.1(3) of the IVR describes when ICBC will not be liable. The following are most relevant, whereby coverage is denied if:

• the insured’s vehicle was in fact not licensed and the insured had no reasonable grounds to believe it was; or
• the vehicle’s operator or passenger did not have the owner’s consent to operate or be in the vehicle and ought to have known there was no consent (i.e. the operator or passenger is in a stolen vehicle).

e) UMP Coverage and Accidents Outside B.C.

For accidents occurring outside BC, the law of the accident occurred determines the legal liability of an underinsured motorist, whereas the amount of the UMP claim is determined by BC law. See section 148.2(6) of the IVR.

UMP protection does not apply in a jurisdiction where the right to sue for injuries caused by a vehicle accident is barred by law (IVR, s 148.2(4)). UMP coverage does not apply to vehicles used as buses, taxis, or limousines (s 148.4).

f) Forfeiture and Breach of Conditions

Under section 148.2(5) of the IVR, the same provisions that apply to those outlined under Third Party Legal Liability also apply here (see Section III.B.10: Forfeiture of Claims and Relief from Forfeiture and Section III.B.11: Breach of Conditions and Consequences, above.). An award otherwise available under UMP will be reduced by any amount forfeited by a breach outlined in s 55.

g) Dispute Resolution

Any dispute between the claimant and ICBC must be arbitrated. An arbitrator who adjudicates a dispute under this section must publish the reasons for the decision (IVR, s 148.2(1.1) and ((2.1)).

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