Canadian Underwriter

Court sides with insurer in unidentified driver case

August 29, 2022   by David Gambrill

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The six-month notification period to make a claim under the unidentified driver portion of B.C.’s Insurance (Vehicle) Act won’t be extended, even though it took a year for the victim to become aware she could make such a claim, a B.C. court has ruled.

“Ms. [Cindi] Hoflin was aware of all the material facts underlying her [auto insurance] cause of action within days of her accident,” B.C.’s Supreme Court ruled on Aug. 24. “That is, she knew that she had been physically injured by the customer in a manner involving the use of his vehicle, and that she was unable to identify him.

“What she lacked, for almost a year, was the legal knowledge that these unusual circumstances gave her a claim under s. 24 [the unidentified driver portion of the province’s Insurance (Vehicle) Act.].”

The court refused to extend the six-month deadline, saying her situation didn’t fit the profile of not having enough information to be able to make an auto insurance claim.

The court noted Hoflin relied on two cases in support of her request for an extension. “In both those cases, time was extended because it was not reasonably possible for the plaintiffs to bring their claims,” the court found.

In one case, the claimant’s injuries didn’t emerge until six months after the incident. In the other, a driver supplied false information on the scene, so the claimant did not know they had an unidentified driver case until after the six-month notification period had passed.

“I see nothing in those cases, however, to suggest that the rule extends, or should extend, to circumstances where it is reasonably possible for the plaintiff to bring her claim, and she is aware of all the material facts that would constitute it, but she lacks the legal knowledge that the claim exists,” B.C’s Supreme Court ruled.

Hoflin was injured on Apr. 5, 2015, while working in a lumber yard, the court found. She was counting items in the back of a customer’s van when the customer suddenly slammed the rear hatch on her head. She was knocked to the ground and briefly unconscious. The court said it was not clear why the driver had done this.

“After recovering somewhat, she completed the transaction and the customer drove away,” the court found. “He and his van remain unidentified.”

Hoflin sued the province’s public auto insurer under the unidentified driver provisions in s. 24 of the Insurance (Vehicle) Act.

The province’s pubic insurer, Insurance Corporation of British Columbia (ICBC), applied to strike the claim because Hoflin didn’t provide mandatory written notice to ICBC within six months of the accident. The insurer also argued she made no effort to ascertain the driver’s identity or licence plate number at the scene, despite the opportunity to do so.

For her part, Hoflin argued the six-month deadline should be extended in her situation, because she said she had no reason to know of a potential unidentified driver claim until a year later, when she was advised by a lawyer about the possibility. She countered ICBC’s claim that she made no effort to figure out who was driving the van.

On the one hand, the court sided with Hoflin that, given her condition at the time, she did make a reasonable effort to identify the driver.

“I accept that, although she had the wherewithal to complete the sale of the lumber products [with the driver of the van after she had been knocked out], she was shaken, confused and not thinking straight,” the court ruled. “In that state, her failure to obtain the requisite information before the customer drove away was not unreasonable.”

However, the court threw out her case because she did not notify ICBC within six months of the incident, which is when she first knew she had a cause of action.

She initially sought compensation from the Worker’s Compensation Act. She only found out about the possibility of making an auto insurance claim on Apr. 14, 2016, when she had a casual conversation in a supermarket parking lot with an acquaintance, a lawyer who represented her in court.


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