Civil Resolution Tribunal, CRT, has made it’s first ICBC minor injury decision arising out of a car accident injury claim. The claimant settled with ICBC for for $6,890 but later found out he had a disc bulge. ( first CRT ICBC Minor Injury Decision)
However, ICBC was allowed to settle the case before the disc bulge was discovered. The investigation ICBC did, if any, into the injury before settlement is unclear. The claimant therefore argued his injuries were not “minor injuries” as defined by the new NDP minor injury laws.
Interestingly, the claimant was employed with ICBC as a Senior Bodily Injury Adjuster. He argued his employment with ICBC left him at a disadvantage in negotiating as he did not want to seem “argumentative” or as a “problem maker”. However, the Tribunal used this fact against the claimant stating his position with ICBC made him,”…uniquely positioned in that he was experienced in negotiating these settlement agreements from ICBC’s side….” The claim was dismissed by Tribunal Member Andrea Ritchie.
The CRT failed to consider, however, the case of Lidder v. Munro, 2004 BCSC 857. In that case Mr. Justice Rice considered the validity of a settlement agreement with ICBC following a motor vehicle accident. The issue was whether a release the claimant had signed in favour of ICBC in return for a sum of money should be set aside on account of a number of factors including the alleged unconscionability of the agreement. The judge stated:
To prove that a transaction is unconscionable, two factors must be present, a weakness in bargaining position on one side and a taking of unfair advantage on the other… An alternative formulation was suggested by Mr. Justice Lambert in Harry v. Kreutziger (1978), 9 B.C.L.R. 166 (C.A.):
… questions as to whether use of power was unconscionable, an advantage was unfair or very unfair, a consideration was grossly inadequate, or bargaining power was grievously impaired, to select words from both statement of principle, the Morrison case and the Bund case, [1974] 3 All E.R. 757, are really aspects of one single question. That single question is whether the transaction, seen as a whole, is sufficiently divergent from community standards of commercial morality that it should be rescinded.
Instead the CRT referred to McIsaac v. McIsaac, 2010 BCSC 691, to suggest the claimant must have been unfairly induced to accept the settlement, and the settlement must be grossly unfair or grossly inadequate. the CRT ignored the unequal footing between ICBC and its injured adjuster. the CRT failed to consider whether the settlement was unconscionable. Furthermore, the law is quite clear,
“The community should, in my view, be taken to expect adherence to a high standard of commercial morality of a Crown corporation exercising a monopoly function of this sort in settling claims with members of the public which it serves. While efficiency is, of course, properly expected of such a government enterprise, it would in my view be wrong to assume that the insurance corporation is expected to take unfair advantage of inexperienced and unadvised claimants. They are, after all, persons for whose benefit the scheme exists.”( Smyth v. Szep (1992), 63 B.C.L.R. (2d) 52 (C.A.) at para 31)
Unfortunately, this first CRT decision for ICBC minor injury reveals the obvious disadvantage to claimants in this tribunal system. This system avoids the use of real judges. Even if the claimant and ICBC are not on equal footing, it appears the Civil Resolution Tribunal will be prepared to side with ICBC. ICBC has also shown in this case they are prepared to employ this scheme, even against their own ICBC adjusters.