Coquitlam ICBC Lawyer: Judge berates ICBC’s trial strategy and its “game of chicken”.
BC Supreme Court blasts ICBC’s game of chicken.
In this recent ICBC motor vehicle accident case, the Trial Judge, Justice Crerar hammered (or better said, gaveled) ICBC on its current Trial Strategy. As a lay person, you may not be aware that ICBC is currently pushing a high volume of cases that ought to settle, to trial. In doing so, they are collecting trial losses upon losses. More so, ICBC is costing the Province of BC an increasing amount of money by taking inefficient, arguably ridiculous, stances on cases. Often cases should settle for a reasonable number. Instead, and in pushing cases to trial, ICBC is costing itself by having to pay their lawyers, their experts, and often all of the plaintiff’s disbursements because injured claimants are winning; and winning; and winning. Why is the injured claimant winning at trial? Because, the medical evidence confirms they have been hindered due to another’s negligence. It is that simple. They are not lying or exaggerating their pain/injury as ICBC often suggests; they are simply, and unfortunately, hurt.
Why are they doing this? Why push cases that ought to settle, to trial, therefore costing themselves and the Province of BC, money?
The short answer is that ICBC, as a crown crop., will now be one of the richest insurer’s in Canada. With no-fault being implemented on May 1, 2021 and ICBC’s “enhanced care” model taking force and effect, ICBC will no longer have to compensate you - as an injured party due to another’s negligence - for your pain and suffering or reasonable costs for your loss of income (past/future), among other things. As such, they will pocket all the money that otherwise would have been paid out to an injured party. They are rich irrespective of their current policy.
As noted above, Justice Crerar berated ICBC in Moon v. Yaranon, 2021 BCSC 818 for pushing a case to trial while presenting no evidence and having no defense. Let me type that again for you: ICBC had no evidence or defence.
The Trial Judge stated as follows:
[4] [ICBC] advanced no expert evidence. [ICBC] called only one witness: Mr Lai, a physiotherapist who treated the plaintiff in December 2015 and January 2016, just after the accident. His evidence lasted all of 10 minutes; he remembered almost nothing from his brief treatment of the plaintiff, nearly five years previous. Nor did the defendant advance hidden video or evidence from neighbours or associates indicating exaggerated disability, as is typical in personal injury cases. Such evidence is especially important where the credibility of the plaintiff or her experts is not significantly challenged on cross-examination, as in the present case. Its absence makes the task of the court exceedingly difficult in a case such as the present, where the injuries are not discernible by medical imaging or other objective means. Evidence of the existence and extent of the injury is presented through the subjective assertions of the plaintiff, both directly, and via expert testimony largely based, in turn, on those same subjective assertions.
[5] These observations are not directed at all toward Mr Ross, who was only brought in as counsel a few months before trial, after most deadlines had passed for such evidence, and who was acting on his client’s instructions. Unfortunately, this strategy of contesting a plaintiff’s claim, and forcing a plaintiff to proceed to trial, in an effective game of chicken, is not confined to this case: this judge alone has presided over at least one other recent trial with minimal evidence, minimal cross-examination, and minimal argument, presented by the provincial automobile insurer qua defendant. [1]
[6] Of course, it is the defendant’s right to force the plaintiff to prove her case, and [ICBC] is not required to adduce any evidence at all. One may question whether [ICBC] is penny-wise and pound-foolish by advancing such a strategy in the face of a $1.7 million claim, which cost will ultimately be borne by British Columbians if the plaintiff is successful. But I reiterate that such a strategy makes the task of the Court exceedingly difficult, and undermines its truth-finding function.
As the Trial Judge implies, ICBC does not care about the costs it is incurring for forcing a plaintiff to trial in an effective game of chicken. They are rich; rich beyond belief. Unfortunately, only those in the legal system know this. Until the citizens of BC stand up and demand change, this will continue and cost the Province millions; maybe, billions. Enhanced care? No. ICBC has presented an ‘Enhanced way to Care less’.