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ICBC Unidentified Motorist Claim Dismissed due to Lack of Notice

If I am injured in a hit-and-run, do I need to do anything to alert ICBC that the offending driver is unidentified?

The the decision of Parmar Estate v. British Columbia, 2017 BCSC 223 released earlier this year arose from a wrongful death claim made by the estate of the deceased against the hit-and-run driver (an unidentified motorist who left the scene). ICBC was named as a nominal defendant in the action, because the offending motorist was not identified. The collision was not reported to ICBC until over three years after the collision occurred – well after the lawsuit was commenced.

ICBC sought to have the estate’s claim dismissed because the plaintiff (the estate) failed to notify ICBC of the unidentified motorist claim within six months of the collision – the notice being required by s. 24 of the Insurance (Vehicle) Act, which governs claims against unidentified motorists. The estate referred to cases where plaintiffs were permitted to add ICBC as a nominal defendant to the action where they after LEARNED of an unidentified motorist, AFTER the action was commenced. Unfortunately for the estate in this action, the unidentified motorist nature of the claim was known when the action was filed (as proven by the naming of ICBC as a nominal defendant).

Madam Justice Gropper sided with ICBC, likely partially because ICBC was not even notified of the collision until three years after it occurred. She dismissed the claim, providing the following reasons, which offer insight on what constitutes notice to ICBC of the s. 24 claim (i.e. revealing to ICBC all the material circumstances known, and in particular, the involvement of an unidentified motorist):

[9]             The purpose of s. 24 of the Act is explained in Goltzman v. McKenzie [1989], 36 B.C.L.R. (2d) 228 [CA] at page 230:

The broad purpose of s. 23(2) [now s. 24(2)] is to give I.C.B.C. written notice of the circumstances of an accident early enough to provide it with an opportunity to investigate the matter so that it may protect itself against any claim which may be made. The subsection does not say that a claim must be advanced or an action commenced within six months of the accident. In my view, the Corporation is put upon notice when a person having a claim arising out of a motor vehicle accident reveals all the material circumstances known to him or her and, in particular, the involvement of an unidentified motorist.

[15]         I do not accept the plaintiffs’ interpretation of s. 24 of the Act. Their reliance on the Jamt decision is misplaced, particularly, as noted in that decision, ICBC was named as a nominal defendant at the commencement of this action.

[16]         Here, it is clear that ICBC did not receive notice of the allegations against an unknown driver within six months of the accident. The notice of civil claim can serve as notice to ICBC under s. 24(2). Even so, the notice of civil claim was not filed until two years after the accident and was not served until three years after the accident.

[17]         The plaintiffs provide no explanation for the lack of notice or for the failure to serve the notice of claim for a year following its filing. As noted in the chronology, the accident was not reported to ICBC until March or April 2014. There is no basis upon which I can conclude that the notice was given to ICBC “as soon as reasonably practicable”. The lack of notice is fatal to the plaintiffs’ claim.

[18]         I am satisfied that the action against ICBC raises no genuine triable issue and must be dismissed.

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