The Insurance Corporation of British Columbia, ICBC, insures all guilty BC drivers. ICBC also insures the injured claimant for purposes of ICBC accident injury benefits. The result is a mandatory state controlled insurance scheme. By law, ICBC has the monopoly on third party liability auto insurance. So it can be difficult to achieve a fair settlement of your auto injury claim.

ICBC as the power to settle, or refuse to settle, any auto injury claim. Settlement bargaining inequality is therefore skewed in favour of ICBC. There are however a few mechanisms often used by personal injury lawyers to assist claimants to level the playing field.

ICBC Notice to Mediate

A claimant can force ICBC to the settlement table through a process called Notice to Mediate. The Notice to Mediate Regulations dictate the process. This is only available to claimants that are not Minor Injury. Here are some of the key steps to a successful settlement mediation with ICBC:

1. File a lawsuit ( Notice of Civil Claim) in the Supreme Court of BC.

2. Complete the discover process. This may include document disclosure and questioning under.

3. Serve a Notice to Mediate on the defendants. The Notice to Mediate may be served no earlier than 60 days after the end of the pleading period and no later than 77 days before the date set for the trial.

4. Provide dates to the mediation facilitator to schedule and attend mediation.

5. If ICBC refuses to mediate deliver a Declaration of Default to the Defendants for failure to comply with the Notice to Mediate Regulation. See section 12(1)(f) and(2) of the Notice to Mediate Regulation (B.C. Reg. 127/98).

The court can use the discretion set out in Section 12(1)(f) of the Notice to Mediate Regulation to award costs incurred by the claimant in the action.

Declaration of Settlement Default

Section 12(1) of Notice to Mediate Regulation (B.C. Reg. 127/98) reads: If a Declaration of Default is filed, the court may, on application made on notice to the participant in respect of whom the Declaration of Default is filed, do any one or more of the following unless that participant satisfies the court that the default did not occur or that there is a reasonable excuse for the default:…(e)dismiss the proceeding or strike out the response to civil claim and grant judgment;(f)make any order it considers appropriate with respect to costs. (2)The court may consider the existence of a Declaration of Default in making any order about costs, whether following final disposition of an action, or otherwise.

The courts however have been loath to apply consequences in situations of settlement default. There are currently no reported cases in which a claimant has recovered costs against ICBC for failiure to participate in the mediation process.

One of the only reported cases on point is McNamara v. Kooner et al, 2002 BCSC 1160 . In this case it was claimed the ICBC adjuster left the mediation before all issues were resolved. The ICBC adjuster left the mediation prior to the expiry of the 3 hour limit required by the regulation. In denying the claimant special costs the court had this to say:

[29]  Was this conduct which was so reprehensible as to attract an award of special costs?  I think not.  He had made an offer to the plaintiff and he indicated that it was his “final offer”.  The plaintiff did not accept it.  The adjuster then advised that he would be leaving in 15 minutes and that the offer would remain open for acceptance by the plaintiff.  He then left some 25 minutes later.

[30] The intent of the Notice to Mediate Regulation is to encourage parties to motor vehicle accident litigation to embark on a process of settlement discussions in good faith.  While the adjuster may have failed to observe the letter of the regulation, I find that he did participate in good faith and followed the spirit of the negotiation.

It may be that claimants are not taking advantage of this process of forced settlement. On the other hand it may be that it is not only the courts that are reluctant to force parties into settlement. Get a free legal consultation to find out more about settlement options.

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