This ICBC injury claim (Milkovich v. Insurance Corporation of British Columbia) arises from a single vehicle motor vehicle accident in which the claimant was a passenger . The injury claimant , who is now 63 years of age, apparently suffered a brain injury in the car accident and the lawsuit was filed in the Nanaimo, British Columbia court registry.
The issue arose as to whether the injury claimant was a “worker” at the time of the accident and therefore statute barred from relief under Part VII of the regulations to the Insurance (Vehcile) Act , (i.e. ICBC accident benefits) by virtue of s. 10 of the Workers Compensation Act.
This lawsuit was filed by the injury claimant  against the driver of the vehicle to enable the Worker’s Compensation Appeal Tribunal (“WCAT”)  to decide whether the claimant was a worker in the course of his employment at the time.  This lawsuit against ICBC for accident benefits was started  at the same time as the lawsuit against the other drvier but a statement of claim was never filed. ICBC’s steps in the lawsuit were limited with the filing of an appearance and then later proceeding with this assessment.
WCAT did indeed determine that the claimant was a worker and therefore prevented from suing the at fault driver or claiming ICBC accident benefits. Immediately following that ruling, ICBC  forwarded to the lawyer for the injury claimant  a consent dismissal order. The personal injury lawyer simultaneously filed a Notice of Discontinuance  making the consent dismissal order unnecessary .
The injury claimant’s lawyer said that he reached an agreement with ICBC to keep all costs to a minimum pending the WCAT determination. When negotiations over the ICBC’s proposed costs broke down, the ICBC lawyer sought an appointment before the registrar.  The issues on this application were summarized by the Master of the Court as follows:

“a.  At what Scale should the costs be assessed?

b.  Does the tariff pre or post-July 1, 2010 apply?

c.  Is the defendant entitled to costs for item 34 when the action was resolved by a Notice of Discontinuance?

d.  Should agent’s fees be allowed when delivery of documents for filing by regular mail would suffice?

e.  Is the defendant entitled to costs related to attendance at a mandatory pre-hearing conference?

f.  Is the defendant entitled to recover the filing and agents fees relating to the Notice of Change of Solicitor?”

With respect the the application of the new Civil Rules of Court in BC  the Master pointed out:

“[26]  There is indeed no reference in the transitional provisions to costs flowing from discontinuances. I might speculate that this omission was purposeful because no order is required for the assessment of costs in those circumstances. It may be an inadvertent omission by the Lieutenant Governor in Council. However, the logical extension of the plaintiff’s submission would be that a party could not properly prepare a bill, let alone consider what might be reasonable costs, until the day of the assessment. That could not be the intent of the Rule makers. I also query whether the plaintiff would be making the same submission had the allowance for Item IB (now 2) increased rather than decreased.”

The Master found that the old Rules of Court, pre- July 1, 2010,  applied to this Nanaimo lawsuit and ultimately awarded ICBC $1,216.45 for their costs. Posted by Mr. Renn A. Holness
Issue: Should injury claimant’s be able to apply to WCAT for this type of determination without  filing a lawsuit against ICBC for accident benefits?


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