Disputes with ICBC (12:VI)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 18, 2021.|
NOTE: The following portion of this chapter is meant to serve as a basic primer covering some of the key principles of the new ICBC system, which applies to claims for accidents occurring on or after May 1, 2021. Given that this no-fault system is new as of May 1, 2021, there are still certain portions of it that are being clarified, or that may adapt with implementation.
If you have an issue with the outcome of your claim or with how it was decided, there are processes available to dispute your claim. Different procedures apply to different types of claim disputes. The following outlines the remedies for some common types of disputes that may arise with ICBC. This section should be used with caution, as at the time of writing certain parts of the ICBC dispute process (minor injury disputes, and liability and damages disputes) were under review at the BC Court of Appeal.
A. Minor Injury Determination Disputes
If your injury is classified as a minor injury, this places a cap on the amount on non-pecuniary damages that you can access (IVA, s 103(2)). Minor injury has a specific legal meaning, and is defined in s 101(1) of the IVA as: “a physical or mental injury, whether or not chronic, that
(a) subject to subsection (2), does not result in a serious impairment [(defined in s 101(1) of the IVA)] or a permanent serious disfigurement [(defined in s 101(1) of the IVA)] of the claimant, and
(b) is one of the following:
(i) an abrasion, a contusion, a laceration, a sprain or a strain;
(ii) a pain syndrome;
(iii) a psychological or psychiatric condition;
(iv) a prescribed injury or an injury in a prescribed type or class of injury;[(defined in s 1(1) of the Minor Injury Regulation)] ”
Minor injury classifications may be disputed either internally, by speaking with your claim representative and their manager, or by making an application to the Civil Resolution Tribunal (CRT) to adjudicate on the matter. Note that ICBC does not make further information publicly available about the process or deadlines for disputing a determination internally.
The CRT is an independent administrative tribunal, authorized by the Civil Resolution Tribunal Act to adjudicate on minor injury determination, among other matters. The CRT process does not involve legal representation, and use of the CRT to resolve these disputes is meant to cut legal costs for all parties, although certain parties who require assistance can apply to have a helper or advocate to assist them in the tribunal process. For more details on the CRT, see Chapter 20 of the LSLAP Manual on the CRT and its procedures: https://www.lslap.bc.ca/manual.html
Note: As of March 2021, the BC Supreme Court has deemed the CRT’s authority to adjudicate on minor injury determinations as being unconstitutional (Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2021 BCSC 348 (CanLII)). This is currently being appealed to the BC Court of Appeal. While this case is being decided, parties can choose to bring their minor injury determination disputes to either the CRT, or to have them adjudicated through the court system. It is unclear when this case will be decided, or how the outcome will affect the forum for these disputes going forward.
B. Liability And Damages Disputes
Following an accident claim, ICBC will compile information from various sources to determine liability. Per ICBC’s website, this internal process includes gathering information from other drivers, witnesses, or police reports, as well as conducting comparisons with similar accidents, or determining if there are any Motor Vehicle Act violations. Generally, this process results in a finding of partial, full or no fault in relation to the accident (i.e. the insured’s degree of liability).
Disputes about a finding of liability can be made internally through ICBC’s Claims Assessment Review process, in which an independent arbitrator reviews the liability decision. Per the ICBC website, an insured has 60 days after the initial decision within which to submit a Claims Assessment Review application, although ICBC may change this internal deadline, so it is always best to confirm the deadline as soon as possible.
Disputes about liability or damage assessments can also be disputed in certain circumstances by making an application to the CRT to adjudicate on the matter. The CRT has jurisdiction over liability and damages in cases where an accident occurred in BC, and was, “caused by a vehicle or the use or operation of a vehicle as a result of which a person suffers bodily injury” (IVA, s 101) and where the total damage amount is less than or equal to $50,000 (note that this damage cap to fall within CRT jurisdiction is, “including loss or damage to property related to the accident but excluding interest and any expenses referred to under section 49” of the CRT Act) (CRT Act, s 133(1)(c)).
Note: As of March 2021, the BC Supreme Court has deemed the CRT’s authority to adjudicate on liability and damage disputes as being unconstitutional (Trial Lawyers Association of British Columbia v British Columbia). This is currently being appealed to the BC Court of Appeal. While this case is being decided, parties can choose to bring their liability and damage disputes to either the CRT, or to have them adjudicated through the court system. It is unclear when this case will be decided, or how the outcome will affect the forum for these disputes going forward.
C. Disputing Denied Benefits (in relation to Parts 1 AND 10 of the IVA)
Disputes in relation to denied accident benefits can be handled by making an application to the CRT to adjudicate on the matter. This applies to benefits denied under Part 1 or Part 10 of the IVA (CRT Act, s 132(b)).
Note: The case of Trial Lawyers Association of British Columbia v British Columbia (Attorney General), mentioned above, did not strike down the CRT’s ability to adjudicate on disputes regarding denied benefits. As such, unlike minor injury and liability/damages disputes, parties cannot choose whether to bring their denied benefits disputes before either a court or the CRT, and must bring these disputes before the CRT.
Disputes about denied accident benefits may also be made internally through ICBC’s Claims Decision Review process. However, ICBC does not provide public information on the process or deadlines for this. Speak directly to your ICBC representative for more information about options for disputing denied benefits internally.
D. Disputes About Basic Vehicle Damage Coverage
Disputes related to Basic Vehicle Damage Coverage (see Section III(B): Basic Vehicle Damage Coverage) can be resolved either internally between the insured and ICBC, or through arbitration. This applies to disputes about:
(a) the nature and extent of required repairs or replacement,
(b) the value of the damage to or loss of the eligible vehicle, or
(c) the price received, or the estimated price that would have been received, from the sale of the damaged eligible vehicle.
(BVDCR, s 28)
This arbitration process must follow the Arbitration Act, as well as the rules laid out in ss 28-32 of the Basic Vehicle Damage Coverage Regulation. There is a two-year limitation date from the date of the accident to submit for arbitration (BVDCR, s 29(2)).
|© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.|