If a police officer tickets you for a driving offence that you did not commit, there are instructions on the back side of the ticket for how you can dispute the ticket. You will end up in front of a Justice of the Peace in “Traffic Court” where you will have the opportunity to defend yourself.
What if ICBC wrongly assesses you as being at fault for a crash?
Consequences of an incorrect fault assessment can be severe. Depending on your driving history and your income, the assessment can push your insurance premiums up so high that you can no longer afford to drive.
The loss of your car can have a significant impact on your ability to find and maintain work, let alone the impact on your recreational pursuits.
The representatives of ICBC who make fault assessments are doing their best, I assume, with the information available to them. Often, though, they are facing a “he said , she said” situation. If the other driver is dishonest, how is ICBC to figure out which one of you is telling the truth? The default is a 50/50 liability assessment. Like King Solomon’s threat of cutting the baby in half, both drivers lose because they both end up with insurance consequences.
You are the driver who really loses, though, because you were the innocent driver. What do you do?
The ICBC website provides internal options of talking to an ICBC manager or asking for an internal process they call a “Claims Assessment Review”. Neither of those processes, though, can resolve a situation where one driver says one thing and another driver says something else.
The ICBC website correctly notes: “Please note, the courts have the final say about who’s liable for a motor vehicle crash”, and lists “Dispute your claim in court” as an option if you disagree with ICBC’s fault assessment.
Getting your day in court is not as easy as following the instructions on the back of a traffic ticket, but it’s not the unsurpassable mountain range you might feel it is either. If you want some inspiration, I invite you to read the Kelowna Small Claims decision of Tough v. ICBC, which can be found with an internet search of Provincial Court of British Columbia judgments.
Eric Tough was the victim of a crash at age 17. He was turning left when an oncoming vehicle broadsided him. He was not injured, miraculously, but his $750.00 “beater” of a car was destroyed and his insurance premiums priced him out of being able to afford to drive because ICBC assessed him 100% at fault.
Young Mr. Tough was the classic “David” in a “David and Goliath” situation. With the help of his step-father, he picked up a stone and put it into his slingshot by commencing a Small Claims lawsuit against the offending driver as well as ICBC. They did not hire a lawyer.
After reviewing the evidence, Judge Wallace of the Provincial Court issued a decision reversing the fault assessment that had been made by ICBC. She completely exonerated young Mr. Tough, assessing the oncoming driver 100% at fault.
I am a big fan of Small Claims Court. It is a wonderfully accessible way to achieve justice without having to incur the exorbitant expense of hiring a lawyer. A quick internet search will get you to the Provincial Government website that will help you along.
Links of Interest:
- Original column regarding Tough v. ICBC and Gannon, 2010 BCPC 0307
- Tough v. ICBC and Gannon, 2010 BCPC 0307
- Provincial Court of British Columbia – Small Claims – Procedures & Fees
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Tim Hilliard
Hi Paul: My son and I would like to dispute an “at fault” decision in an accident that occurred in Duncan BC in late February..but are having difficulty finding the correct forms to file the disputes to a judge. Can you point us in the right direction? Thanks Tim Hilliard
Paul Hergott, Personal Injury Lawyer
Tim,
The Small claims system has changed quite dramatically as of June 1, 2017. I am very optimistic that the changes will turn out to be excellent ones, but the result is that my familiarity with the procedures has crashed and burned.
Two developments:
1. Access to an online dispute resolution system for claims under $5,000.00….and it APPEARS that you can proceed to the regular Small Claims court process if that dispute resolution system is not successful / you disagree with the result; and
2. Increase of the monetary jurisdiction of Small Claims from $25,000.00 to $35,000.00.
There is a BUNCH of information and resource available on the British Columbia Government “Procedures & Fees for Small Claims Court” web page: http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims.
AFTER you have tried to figure things out on your own, please get further help from the incredible folks you’ll find at Court Registries. Keep in mind, though, that THEY are new to the system as well!
Wishing you well on your path to justice…and please check back in to let us (and the rest of the world) know the result.
Paul
Jawaid zahir
Where can I get the Claim Assessment Review Form?
Can you please email the forms.
JawaidZahir@aol.com
Paul Hergott, Personal Injury Lawyer
Jawaid – sorry, I don’t know what a Claim Assessment Review Form is. It sounds like it has to do with an internal liability review conducted by ICBC, so I suggest that you ask ICBC for the form.
Ardee
Hi Paul, I want to dispute an “at fault” decision because they saying that I did an unsafe turn and the car behind me swirl and hit another car but I’m not aware of this and icbc said they have witness because they are two people in the car and they have dash cam, so I asked for the video and icbc said its not important because they have witness and they havent retrive the video. What action should I take in this situation?
Paul Hergott, Personal Injury Lawyer
I recommend a small claims lawsuit to nail down liability, notifying ICBC and the witness (whoever has the dash cam) that the dash cam is critical and you require it to prove what really happened, requesting the dash cam footage at the Settlement Conference and if the dash cam footage is in the hands of someone other than the “at fault” driver hiring / paying a lawyer immediately to ensure you get that footage.
Darlene yee ( nee white)
My son borrowed my car on dec 18th to pick uo his wife from work ..Accident was on Dunsmuir viaduct.A person of no fixed address ran out and my son swerved to miss him .In doing so the car was written off .ICBC says the accident is 100% my sons fault .There is s police report and witness report.My son has a chronic concussion. ICBC told me someone has to pay and since that person has no money then I have to pay. This is not right.
Paul Hergott, Personal Injury Lawyer
I am so sorry this happened.
If your son’s driving cannot be faulted, then I would hope that there would not be a negative impact on insurance rates, but that is not my area of expertise.
If your vehicle is destroyed and you do not have collision insurance coverage, then your recourse is typically against whoever caused the destruction. If, indeed, the destruction was caused by the negligence of a pedestrian who has no ability to pay and is not insured, then unfortunately there may be no recourse.
But you cannot rely on this as legal advice. Please ensure that you and your son have a proper consultation with a personal injury lawyer and that you do so as soon as possible because there are always important deadlines with legal matters.
Joanna
Hi Paul
How can i do the “Claims Assessment Review” with ICBC, How can i get in touch with this department?
Thanks
Paul Hergott, Personal Injury Lawyer
Joanna – I’m sorry but I don’t know the answer to that question. I’ve never engaged that process. On ICBC’s web site: https://www.icbc.com/claims/disputes-appeals/Pages/responsibility-assessment-disputes.aspx#:~:text=Claims%20Assessment%20Review&text=A%20CAR%20provides%20an%20opportunity,decision%20about%20your%20responsibility%20assessment.&text=The%20CAR%20decision%20is%20binding,you%20still%20have%20further%20options., they say “Talk to your ICBC claim representative for more information”.
Edward
How Long after an internal ICBC ruling against me do I have to file a lawsuit? Is there a time limit
Paul Hergott, Personal Injury Lawyer
Generally speaking, in matters pertaining to liability between motorists in British Columbia, a proceeding must be commenced within two years of the collision.
I say “generally speaking” because there are all sorts of different “limitation periods”, and the only way to know for certain is to have a consultation with a lawyer with expertise in the matter.
And I use the word “proceeding” because depending on the circumstances the appropriate venue might be Small Claims, Supreme Court or the CRT. Again, the only way to know for certain is to consult with a lawyer with expertise in the area.
Harman Dhaliwal
How do I get surveillance footage from a mall parking lot if ICBC won’t, and the mall won’t give it to the police either as they argue it is not a criminal code offence? This is during and after ICBC 50/50 fault determination, for appeal purposes.
Paul Hergott, Personal Injury Lawyer
Harman,
Frustrating to know that critical evidence is out of reach!
I do not know the answer because my area of expertise is the Supreme Court and in that venue I could very quickly get a court order requiring the evidence to be produced.
Ideas:
1. Do a beg/plead routine with whoever is in control of the surveillance footage to somehow convince them to release the footage to you. This would include hand delivering a box of hedgehog chocolates! Find out what hoops need to be jumped through and see about how to jump through them. If they are concerned about breaching privacy, ask if they will send it directly to ICBC;
2. Do the same beg/plead routine with ICBC;
2. If No. 1 doesn’t work (I suspect you’ve already tried No. 1) do whatever you can to get reassurance from those in control of surveillance footage that it will be preserved, i.e. that it will be kept safe / not recorded over, until you are able to get an order for production; Get that in writing.
3. Contact the Civil Resolution Tribunal to ask how to go about getting an order that those in control of the footage produce it to you / ICBC (https://civilresolutionbc.ca/contact-us/);
4. Consider using the media. It’s atrocious that ICBC won’t help get critically important evidence to help resolve a liability dispute (in my view);
5. Consult with other lawyers until you find an answer that works. It is likely critically important that you get that footage.
Wish you well in your pursuit of justice.
Paul