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ICBC Re-Victimizing Injured Claimants After Trial – Section 83 Deductions – Part 1

 

*written by Vic Maan, Associate with Holness and Small Law Group

As many British Columbians are aware, most ICBC claims settle without a trial.  Settling with ICBC is advantageous to injured claimants in certain situations.  With settlement, an injured claimant can control the amount of the ICBC payout by agreeing or refusing to agree to an ICBC settlement offer.  In doing so, the injured claimant can avoid the risks associated with trial and an uncertain outcome.  Similarly, settlements can also be advantageous to ICBC who can then avoid incurring substantial expenses for its lawyers, experts and witnesses.

What most British Columbians are unaware of, however, is what may transpire after trial in that ICBC can take steps to reduce the trial award.  This power is provided to ICBC through sections 83 and 84 of the Insurance (Vehicle) Act which allow ICBC to reduce the amount awarded for future care costs.

An example of how ICBC can reduce a trial award for future care costs is found in Aarts-Chinyanta v Harmony Premium Motors Ltd., 2020 BCSC 953

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 sought to reduce 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 reviewing the law surrounding ICBC’s ability to reduce a trial award post-trial for future care costs, the trial judge stated:

[67] The purpose of this post-trial hearing is to determine the appropriate deductions, if any, from the Judgment. This hearing is not to conclusively determine the legal obligations between Ms. Aarts-Chinyanta and ICBC.

[68] Section 83 of the Act, which is applicable to accidents occurring before May 1, 2018, applies to Ms. Aarts-Chinyanta.

[69] The Regulation was amended relatively recently. Treatments received before April 1, 2019 are dealt with under the old version of s. 88 of the Regulation; treatments received on or after April 1, 2019 are governed by the new Regulation. The new Regulation set limits on the number of sessions that are covered under Part 7 and further conditions on treatments provided more than 12 weeks after the date of the motor vehicle accident. To be eligible for treatments after 12 weeks, the insured individual requires written certification from a specified medical practitioner stating the health care service is necessary.

[71] The legislative scheme is designed to remove the burden of future care from the tortfeasor and place it on the insurance provider, ICBC. To achieve this, it is important to keep the statutory objectives of the no-fault benefits in mind. The statutory objectives are to prevent double recovery by the plaintiff and to permit the amount of benefits payable to the plaintiff in the future to be determined by provisions of the Act: Fisher at para. 4.

The trial judge further noted that “the onus to establish which deductions should be made under s. 83 lies with the defendant. The defendant bears the burden of proving that [the injured claimant] is entitled to the benefits under Part 7, which the defendant seeks to have deducted”: see para. 34.  In laymans terms, ICBC argued and it was required to provide proof that it would promise to provide treatment for the injured claimant into the future.  In so doing, ICBC argued that the cost of future care award ought to be reduced if ICBC will provide it through part 7 benefits “along the way” as the expenses are being incurred rather than in a lump sum through the trial award.  The trial judge relied on ICBC’s affidavit evidence (see para. 95) and reduced the injured claimant’s cost of future care award by 25% (among many other substantial deductions).

In contrast to this case is the recent decision of Luck v Shack, 2020 BCSC 1074; in the case, the injured claimant (or plaintiff) received a much more beneficial outcome. In Part 2 of this article series, we will discuss this case and what this may mean to your personal injury claim in the present and moving forward.

Tags: part 7 benefits

"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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