BURST
The B.C. Court of Appeal has ordered ICBC to allow a lawsuit by three people injured in a hit-and-run accident, reversing a decision by a lower court to dismiss their claim for damages.
The three individuals were in a car that was T-boned by a driver in a stolen truck after he ran a stop sign in Burnaby at 4 a.m. on Feb. 3, 2019, and then fled. He couldn’t be found by RCMP.
ICBC argued the claimants weren’t insured for damages because they hadn’t done enough to try to identify the driver, according to an Appeal Court decision this week.
In the B.C. Supreme Court in 2024, Justice David Crerar said “with regret” he had to rule against the injured parties because the three hadn’t made “all reasonable efforts” to locate the driver, as required under B.C.’s Insurance Act before hit-and-run victims can sue ICBC when the driver can’t be found.
But Justice Christopher Grauer, writing for the three-judge court, ruled Crerar erred by imposing an onus on the injured to take steps that “would almost certainly have been futile, to try to accomplish on their own what the police could not despite an extensive criminal investigation.”
Crerar said in his decision that driver Larissa Fearon, her brother, Duwayne Fearon, and passenger Shawayne Powell didn’t take any investigative steps to try to find the driver, and that waiting a year before posting signs asking for witnesses amounted to unreasonable delay.
They therefore missed the possible opportunity to identify him because posting notices right after the crash may have led to the owner of the stolen truck or his neighbours remembering seeing the vehicle. Or the family members of the fugitive driver may have turned him in if they had remembered him coming home acting strangely, the judge said.
But each of the three said after they were taken by ambulance to hospital, they were told by police during interviews that all they had to do was report the accident to ICBC, which they had done.
Police also told them they would be in touch if they needed anything more for their criminal investigation.
The injured parties never heard back from the officers. And they also said ICBC hadn’t advised them of any next steps when they reported the crash.
Grauer agreed with the lower court ruling that previous claims have been dismissed because of claimants “simply reporting the matter to the police and ICBC, without more.”
But Grauer said the circumstances of this case had to be considered to determine whether taking any steps to identify the driver would have helped when the police were unable to find him.
RCMP used tracking dogs after the crash, checked for neighbourhood video footage, interviewed two men who came out of their houses to help look for the driver, and carried out tests on the stolen vehicle for DNA or fingerprints, according to the decision.
But they closed their investigation a week later after concluding the driver couldn’t be found.
“What more, reasonably, could have been done? On the evidence, nothing. The unidentified driver … was seen running into the night with no identifying features visible. The area was dark. It was 4 o’clock in the morning. No one else was around. Even those who responded and were interviewed by the police did not see anything,” wrote Grauer.
Grauer, in his decision, cited a legal decision that states what constitutes “all reasonable efforts” should be determined on the particular circumstances of each case, and questioned whether the lower court judgment adequately assessed the case.
For instance, he said none of the cases cited in Crerar’s ruling involved circumstances similar to this crash, which involved a stolen vehicle driven by an unknown driver and an unsuccessful police criminal investigation. In the cited cases, the vehicles were driven by the owners or with the owner’s permission, and the driver could be found.
And given a serious crime was committed that night, it is “surely reasonable to allow the police to investigate it, rather than undertake what amounts to a criminal investigation on one’s own, with the attendant personal risk.”
Grauer also wrote that the judge’s conclusion that the fugitive driver’s family or friend, if they had seen a posted sign, “might have done the right thing and reported the fugitive’s unusual return home, perhaps out of breath, prehaps dazed, perhaps injured, early in the morning,” is “pure speculation.”
Crerar noted in his ruling that while ICBC is not legally required to inform claimants about their requirement under the law to try to locate a hit and run driver, it would be “responsible and simple” for ICBC to remind claimants of that duty because its silence makes the requirement seem like a “trap for the unwary.”