ICBC v. Shmyr Date:, 2014 BCPC 262

Citation: ICBC v. Shmyr Date: 20141112 2014 BCPC 0262 File No: 104790 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: Insurance Corporation of British Columbia CLAIMANT AND: David William Shmyr DEFENDANT REASONS FOR JUDGMENT REGARDING DEFAULT APPLICATION OF THE HONOURABLE JUDGE R.R. Smith Counsel for the Claimant: T. Seppanen Counsel for the Defendant: Not present Place of Hearing: Kelowna , B.C. Date of Hearing: November 12, 2014

Date of Judgment: November 12, 2014 [ 1 ] The Claimant ICBC makes application for a default desk order. At issue is whether the claim is for “debt” pursuant to rule 6 of the Small Claims Act Rules . [ 2 ] The Defendant was served with the claim by way of registered mail, but failed to respond. The Defendant was involved in a motor vehicle accident in which the Claimant pleads that the accident was solely caused by the Defendant. The Defendant was insured by the Claimant, but the Claimant pleads that the Defendant forfeited his right to indemnity by being in breach of Section 55(3)(

a) of the Insurance (Vehicle) Regulation in that he was not authorized by law to operate the vehicle he was driving. [ 3 ] The Claimant paid out to three victims a total of $27,529.21 and then brought this action for recovery from the Defendant in accordance with Sections 77(2) and 93.1 of the Insurance (Vehicle) Act . [ 4 ] The Claimant referenced as authority for obtaining a default order the case of ICBC vs Filippelli , [1996] B.C.J. No 2391 of Mr. Justice Thackray.

It involved a similar fact pattern and Justice Thackray found it was not an action for damages, but was a liquidated demand for a debt owning under the statutory provisions. A default order was given. [ 5 ] Similarly, in British Columbia Provincial Court, Judge White in North American Trust Company vs Issac Holdings Ltd. , [1993] B.C.J.

No. 2734 , adopted the definition of “debt” as being “an obligation to pay a sum certain or a sum readily reducible to a certainty” and accordingly found a liquidated damages claim was a debt within the meaning of the Rules, such that a default order was given. [ 6 ] I find that the current claim for liquidated damages is an amount certain given ICBC has already paid out the claims of the third parties. Accordingly, it is a claim in “debt” within the meaning of Rule 6 of the Small Claims Act Rules .

I grant the default order sought, namely $25,000 plus $253.87 in expenses, for a total of $25,253.87. ----------------------------------------- R.R. Smith, P.C.J.