Kristen v. ICBC, 2018 BCPC 106

Citation: Kristen v. ICBC 2018 BCPC 106 Date: 20180507 File No: 1725903 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: FRANK KRISTEN CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA aka. ICBC DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE J. O'C. WINGHAM Appearing on his own behalf: F. Kristen Counsel for the Defendant: No Appearance Place of Hearing: North Vancouver, B.C. Date of Hearing: April 13, 2018 Date of Judgment: May 7, 2018 INTRODUCTION

[ 1 ] This case involves the determination of liability for a motor vehicle accident involving the Claimant, Frank Kristen, and another driver on November 15, 2016. The Claimant is self-represented. [ 2 ] The ICBC claims adjuster assigned 100% of the liability for the accident to the Claimant. The Claimant disagreed with that assignment. He requested a Claims Assessment Review by an outside arbitrator. In a decision dated March 1, 2017 that Arbitrator also assigned 100% of the liability to the Claimant.

The Claimant was advised by ICBC that if he was not satisfied with the results of the Claims Assessment Review (ie. the Arbitrator’s decision) he could further dispute the assessment of responsibility in Small Claims Court. [ 3 ] The Claimant has brought this action against the Insurance Corporation of British Columbia (described as “ICBC” in the Notice of Claim) in which he disputes the decision of the Arbitrator. He seeks a finding that the other driver was 100% liable for the accident. [ 4 ] The Claimant filed his Notice of Claim on October 20, 2017. The only named defendant is ICBC.

ICBC filed a reply which can best be described as a general denial of the Claimant’s claim. The case was set for trial on April 13, 2018. The Claimant appeared and was ready to present his case. No one appeared on behalf of ICBC. ISSUE [ 5 ] The issue in this case is whether I have authority to review the arbitrator’s decision in the absence of the other driver. The Claimant asks that the Court proceed with the trial in the absence of ICBC and make a finding of liability in his favour. I reserved my decision to give the issue further consideration.

ANALYSIS [ 6 ] I could find no authority in the Insurance (Motor Vehicle) Act or the Regulations made under that Act which would allow me to simply review the decision of the Arbitrator without a hearing. The decision of an Arbitrator is binding on ICBC but not on the Claimant and the Claimant has the right to pursue the issue of liability in this Court. [ 7 ] The Court cannot assess liability unless the other driver is given an opportunity to present his or her case on that issue.

If the other driver is not served and given an opportunity to be heard the Court would only have the version of events provided by the Claimant to consider. The other driver has a right to notice that the Court is being asked to consider the issue of liability and an opportunity to participate in the proceedings to present his or her version of the events. [ 8 ] The proper way for the Claimant to do that is to sue the other driver.

The proper defendant in an action to determine liability in a motor vehicle accident is the other driver, not ICBC, although ICBC is required to be served with a copy of the Notice of Claim (s. 22 of the Insurance (Motor Vehicle Act) . [ 9 ] Unfortunately, the Claimant’s error in suing ICBC and not the other driver is not uncommon for self-represented litigants.

In this case the Claimant received a letter from ICBC which stated “If you are not satisfied with the results after reviewing your Claims Assessment Review decision, you can further dispute the assessment of responsibility in Small Claims Court.” The Claimant interpreted that to mean that he could apply to this Court to review the Arbitrator’s decision. [ 10 ] Rather than dismiss the Claimant’s claim I grant leave to him to amend his Notice of Claim by June 8, 2018 by naming the other driver as a defendant.

If he does not file an amended Notice of Claim by that date his claim will be dismissed. _________________________________ The Honourable Judge J. O’C. Wingham Provincial Court of British Columbia