*written by Vic Maan, associate at Holness and Small Law Group
In that article, we discussed the case of Aarts-Chinyanta v Harmony Premium Motors Ltd., 2020 BCSC 953; as we wrote:
“In this case, the injured claimant was awarded $764,211.00 for her injuries and her losses by the trial judge. After the trial was concluded, ICBC challenged and [successfully reduced] the amount she was awarded for the cost of future care ($106,800.00). By reducing this amount from the overall trial award, ICBC instead offers to pay these future care costs through the injured claimant’s part 7 benefits. In other words, instead of the injured claimant being awarded the cost of future care by a trial judge and ending his or her claim with ICBC, ICBC can stay involved with the injured claimant indefinitely by way of “paying part 7 benefits” into the future. What this also means is that ICBC is stripping the ability of injured claimants to determine when and how much they wish to spend on treatment. With this arrangement of “keeping part 7 benefits open and ongoing”, they are potentially now entering into a lifelong relationship with ICBC in having to ask permission every time they want funding for future treatment.”
In contrast to this case, the trial judge in in Luck v Shack 2020 BCSC 1074 refused to allow ICBC to deduct the amount awarded for future care costs at trial.
In this case, the 31 year-old female plaintiff was injured as a result of a motor vehicle accident; she suffered pain and injury to her hip and low back along with a disc bulge and labral tears. After a lengthy trial, the Court agreed that the injured claimant suffered significant injuries and would endure lasting pain. At trial, the injured claimant was largely successful against ICBC as she was awarded $75,000 in pain and suffering, $200,000 for loss of future income, and $85,000 in costs of future care, among other things.
Following trial, ICBC applied to appeal the future care cost award ($85,000.00) stating there ought to be a reduction of $65,000. In essence, ICBC argued that instead of the injured claimant receiving the funds, ICBC would provide funding for the cost of treatment under her part 7 benefits as per Section 83 of the Insurance (Vehicle) Act. ICBC provided an affidavit stating that it would “irrevocably, unequivocally, and unconditionally agree to pay [for the plaintiff’s treatment], under Part 7”. The trial judge however, found deficiencies and uncertainties in ICBC. In particular, the trial judge was simply not convinced on the evidence provided by ICBC that there was any certainty that ICBC would pay the injured claimant future benefits.
In reaching this conclusion, ICBC’s application to deduct the future care cost award was dismissed and instead only a modest amount of deductions were made to the total award ($1,758.00) which the trial judge felt was certain to be paid by ICBC.
This case would suggest that injured claimants have a fighting chance to avoid being re-victimized by ICBC after trial. This, unfortunately, is not the case. This case is the rare exception to the rule of Aarts. Personal injury lawyers like those at our firm are doing their best to combat ICBC at every turn. The Courts however, are handcuffed by legislation which is enacted by the current NDP government. Without a change in government, there can be no change in policy and law. To do so, it is imperative that citizens of BC go out and vote for the rights of the injured. Once a new government is installed, it will be incumbent on us lawyers to continue to combat ICBC for the rights of same.