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Vancouver ICBC Uninsured Motorist Accident Lawyers

Vancouver ICBC Uninsured Motorist Accident Lawyers

Spencer MacLean of MacLean Law’s Vancouver ICBC Uninsured Motorist Accident Lawyers 604-602-9000

Our Vancouver ICBC injury lawyers often deal with ICBC Car Accident Injury Uninsured Motorist Claims and deal with deductions that may or may not fairly need to deducted from the highest possible personal injury damage award. It’s important you hire a Vancouver ICBC accident injury lawyer familiar with “UMP” claims to ensure you obtain maximum monetary recovery.  

We always recommend our clientsbuy uninsured motorist protection given it is the cheapest form of insurance you can buy. In Jordan v. Lowe our Court of Appeal forcefully rejected an inappropriate claim by ICBC to deduct banked vacation pay from a damage award for past wage loss under section 106 of the Insurance (Vehicle) Regulations.  The key point of the decision is that there must be an insurance component of any benefit for it to be deducted from your damage award. 

For those of you who want the full story here are the key parts of the decision:

[3]             The defendant Mark John Lowe, an uninsured driver of a motor vehicle, injured the respondent.  The action against Lowe went to trial and the respondent obtained judgment for damages that included past income loss.  After trial, the defendant argued that there should be a deduction from this head of damage for an amount the respondent had received from a sick bank accumulation with his employer, the Vancouver City Police. Only ICBC could make that argument so it was joined as a third party. 

[4]             ICBC filed a pleading in which it asserted that the past income loss was subject to a deduction for the sick bank benefits received by the respondent. ICBC relied on s. 106 of the Regulation and applied for a declaration that the section applied.  As the trial judge noted at para. 8 of his reasons for judgment, this was not a question of double recovery.  Rather, it related to the extent of the statutory and regulatory obligation of ICBC to pay the judgment obtained by the respondent against the defendant. The Court reviewed the purpose of uninsured motorist protection and cited the earlier case of Alfonso where Rowles J.A., of this court, said (at p. 387):

The purpose of the statutory scheme created by ss. 23 and 46 of the Insurance (Motor Vehicle) Act is to provide some measure of compensation to those who have suffered injury caused by “hit and run” collisions where no common remedy is available. By s. 105 of the regulations made under s. 46, the Lieutenant Governor in Counsel has limited the liability of ICBC for payment of all claims under s. 23 arising out of the same accident. By s. 106 of the regulations, the liability of ICBC under s. 23(8) for payment of a settlement or judgment excludes any benefits to which a claimant is entitled through insurance, including any benefits under the Workers Compensation Act and under the Unemployment Insurance Act, R.S.C. 1985, c. U-1. (Emphasis mine) 28….. the words “any benefit” used in s. 106(1) of the regulation, at the very least, import some element of insurance and here there is none. I say “at the very least” because I do not wish to be taken as saying that I interpret the words “any benefit” in s. 106(1) as necessarily being a benefit provided by a contract of insurance in which the plaintiff is an insured. If that is the proper interpretation, it will be for another court on another day so to rule.

[12]         The added words in the present version of s. 106 do not remove the element of insurance from a plain reading of the section. I am unable to discern the purpose of insertion of the words “compensation similar to benefits”, but those words do not remove the imputation of insurance from the whole of the section. They simply expand the concept of benefit within the framework of insurance as the reading of the section as a whole still clearly implies. Lopez applies and cannot be distinguished. It is a binding authority. Under Lopez, a “benefit”, as that term was then used in the context of the section as a whole, required an element of insurance. There is no logical reason why “compensation similar to a benefit” would not also require an element of insurance.

[15]       The employment contract documents in evidence simply show that the respondent was entitled to receive credit on a semi-annual basis for sick leave not used, to be offset by payment of wages for time away from work due to accident or injury (with an exclusion if the absence was compensable under the provincial workers’ compensation legislation). The documents tell us little more than that. They do not suggest that there was an outside insurer involved or that there was an internal scheme in the nature of insurance. Entitlement to some payment of wages during work absences caused by injury or illness (not work-related) was simply a term of the respondent’s contract of employment.  It cannot be said that accumulation of sick leave credits involved an element of insurance. 

This case points out why it’s critical you hire a highly trained personal injury lawyer to protect your rights when you face a monolith like ICBC. You can meet with us for free to discuss all aspects of your ICBC personal injury case. Call our Vancouver ICBC Uninsured Motorist Accident Lawyers now.



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