We put together this article to help you dispute an ICBC decision. But it should assist you regardless of who your car insurer is (if you live outside of BC.) The goal is to be found at no-fault and to get all the accident benefits that you can. Hopefully, you only have a minor injury, and your autoplan covers everything.
When you get into a car crash, it’s frustrating when ICBC determines you are at fault, just because there were no witnesses and you didn’t record the crash. In a he/she said situation, ICBC just makes a quick determination on what the Motor Vehicle Act says is right.
Will ICBC still pay out if you are 100% at fault?
Yes, they will cover injury, but they may not cover your vehicle damage. It depends on what type of coverage you have.
In most provinces in Canada, everyone has to have vehicle insurance. But when it comes time to a claim, the insurance company will try to figure out a way not to pay out. You can see a Q + A from ICBC here.
We decided to include a real appeal from an ICBC decision below. We changed all the information and then provided ICBC’s response. The information in the court was located and we rewrote the entire thing.
The first part is a letter to the ICBC, and the second part is the response. This will help you draft your dispute appeal.
British Columbia auto insurance appeal
I received a copy of a letter from ICBC dated April 3, 2022. I have not yet submitted any information to ICBC. As such, the purpose of this letter is to encourage ICBC to change their assessment based on the evidence, and case law, all of which are included in this letter.
After the crash, my friend Matt called ICBC for me at my request, although my instructions were only to get an ICBC file number to start the process, as that was what my local car mechanic told me I needed to do.
My friend is an immigrant from China, and he does not speak English well. He told me after the call she was surprised at how many questions he was asked, and stated that he did not understand many of the questions. The phone call with my friend was around 30 minutes long.
Further, Steve was looking at his cell phone while I was driving, and did not witness the crash. His intention of calling in was solely to get an ICBC file number. I then planned to submit a claim online with ICBC.
For some reason, before I could submit my claim online, Steve received a phone call saying a decision had already been made and that I would have to submit an appeal within 30 days of receiving the decision letter from ICBC. I waited to receive the letter, which is included below. No reasons for the assessment were given in the letter.
(Attach the letter)
Photo: The letter I received from ICBC
The Crash That Happened In Vancouver
The crash happened on April 3, 2022, at around 11:27 am. Traffic had stopped completely, and no cars were moving. There were two cars, a red vehicle and a black Audi (driven by the other driver involved in the crash, Mr. Xu (“Xu”.) The picture below is the exact view I would have had when driving into the medium in order to turn left. In the picture below, Xu’s stopped vehicle was where the white van is in the picture.
Photo: A screenshot taken from Google Maps. The crash would have happened a few feet in front of where the white van is in the picture.
Cars were not moving and had not moved for at least 5 seconds, so I slowly entered the intersection of East 1st Avenue in order to turn left. I made eye contact with the driver next to Xu (in the red car), who waved at me, which indicated to me that he saw me. Xu’s front window was dark or had a tint, and I could not see him.
Motorists have a duty to pay attention
I continued moving forward at a normal speed, and Xu suddenly accelerated into the back of my vehicle. It is unclear why Xu did so, as the vehicles in front of him had not started to move again. Xu would have been blocking the intersection.
Seconds after Xu rammed the rear of my vehicle, he exited the vehicle. It is worth noting that he already had his cell phone in his hands. While it is not possible for me to conclude he was texting at the moment of the accident, it is clear that he was distracted and not paying attention to where he was driving. He had not noticed my moving vehicle while the other car did.
It is worth noting that this crash happened in the middle of the day on a Saturday on the first hot day of the summer. The traffic was heavy, and there must have been no less than 30 vehicles behind Xu. There was no other feasible way to turn left, but to do so once the traffic had stopped for at least 5 seconds. As can be seen in the picture, there are no traffic lights.
Xu’s submission to Insurance Corporation of British Columbia
(include a copy of what the other side sent to ICBC if you can get it)
Photo: The ICBC claim that Xu submitted online
The traffic was stopped, not going slow. As explained in his submission, Xu did not notice me crossing the intersection. He states he was waiting (not moving slow), and that he accelerated to go forward, and then hit my car. It is clear that he was not paying attention. Drivers need to check that the space they are trying to accelerate into is clear before driving.
As will be discussed later, Xu immediately apologized and said he would pay for the damages.
While it is not in dispute, the picture of the damage to the rear left of my vehicle is included below.
(Show the damage to the cars)
Photo: A photo taken after Xu hit the very back of my car (from the side)
The insurance company should consider fault
Had I rushed into the intersection while traffic was moving, I would have been able to make it into the medium before being hit. I would have been hit by the first lane vehicle, or the damage would have occurred to the front or middle of the car, not to the rear bumper.
Xu Admitted Fault But The ICBC Adjuster Wouldn’t Consider It
Xu admitted fault during the car crash, and again via text message around an hour after the crash. He apologized and said he will pay for the costs. A second text message from Xu said that he did not believe that I was responsible for the crash. Both text messages are included below. Xu’s words are in grey, and mine are in blue.
(include the picture showing the admission during the claims assessment review)
Photo: A text message from Xu was sent around an hour after the crash and a text message from Xu sent days later.
Case Law Regarding The Motor Vehicle Accident
I looked at decisions posted by the Civil Resolution Tribunal. It is clear from the case law that ICBC must determine fault based on the evidence, on a balance of probabilities. This is made clear in Wolfram v. ICBC, 2021 BCCRT 58 at para 29, which says that fault must be determined on a balance of probabilities. Further, that ICBC must properly or reasonably assign responsibility.
- To succeed in his claim against ICBC, Mr. Wolfram must prove on a balance of probabilities that ICBC breached its statutory obligations or its contract of insurance, or both. The issue I must decide is whether ICBC acted “properly or reasonably” in administratively assigning 50% responsibility against Mr. Wolfram.
Closing submissions regarding the car accident
Drivers must follow the rules of the road. But at times, drivers also extend common courtesies to others. Examples of this are allowing a vehicle to turn left while traffic has stopped, and not blocking the intersection.
As it says on page 5 of ICBC’s “Learn to Drive Smart Manual,” drivers have a duty to focus on the task of driving and to look out for the safety of others. Xu failed to do so.
Photo: Page 5 of the ICBC manual
It is logical to conclude that traffic had stopped and that the car in the first lane was paying attention to what was going on. It is further logical to conclude that Xu was distracted, or he would have noticed a car turning left in the intersection. Xu should have yielded and allowed me to turn left.
Making a statement
In the alternative, if Xu had not been distracted, that would have meant that he rammed my vehicle to make a statement about who had the right of way. I respectfully submit that vehicles do not have the right to ram vehicles or pedestrians just because they may or may not have the right of way. It is the responsibility of any driver to pay attention and to try and avoid accidents.
It is neither “proper nor responsible” for ICBC to ignore Xu’s admissions of the fault via text message, where he states are very sorry and will pay for the damages. It’s also not correct to conclude that Xu had the right to ram a car because he was not paying attention. It is clear on a balance of probabilities that Xu was at fault.
I request that ICBC change their assessment based on the evidence, case law, and Xu’s own admissions, to Xu being fully at fault. If for whatever reason ICBC does not feel comfortable doing so, ICBC should at least change their assessment to 50/50 fault.
ICBC’s response to the accident claims appeal process
I am a manager here at ICBC and your file has been referred to me by Fair Practices. I have read through your submission and appreciate the time and effort spent compiling that information.
Firstly regarding your friend’s call with us and the questions asked, that is simply standard procedure; especially with your friend being the registered owner of the vehicle. That said, my response will focus predominantly on your concerns about the responsible decision.
While I appreciate what you are saying in regards to traffic conditions at this particular intersection at the time of the accident, without harder objective evidence (such as photos or video or an objective witness) it is simply your word against the third party’s. Unable to take either party’s word over the other’s, we default to the Motor Vehicle Act, which places the onus on the vehicle entering/crossing a street and leaving a stop sign, as it is their duty to ensure they can do so safely. Again, unless you have harder evidence showing that the latter was in fact the case, unfortunately, the liability decision remains unchanged.
You talk about the balance of probabilities, but this method is under the jurisdiction of the courts. The excerpt from the case you shared is merely the court referring to its own need to use the balance of probabilities. Even then based on the evidence presented to us, I would not say that on a balance of probabilities things look any different than they do now. Similarly, the character of a person is only something a judge can determine.
ICBC Talking About Canadian Apology Act and Admission of Liability
Along those lines, the text messages presented do not amount to an admission of liability. An apology, and by extension the offer to pay, is not an admission of liability as per the Apology Act. Moreover, it would not be the first or last time someone felt at fault/responsible even though they would not be considered at fault in the eyes of the legislation. We do not have the liberty to make the kinds of assumptions you ask of us, we can only consider what is right before us.
Lastly, the drive smart manual and similar are best practices, but ultimately do not trump legislation. At the end of the day, the law places the onus and burden of proof on yourself as the driver leaving the stop sign to prove that you did so safely. Unfortunately, nothing that you have submitted is acceptable evidence that you did. Even if 50/50 was appropriate in this scenario, which it isn’t, the reality is that a 50/50 split is still counted as an at-fault accident on your record, and would still impact your premiums all the same.
Getting legal advice about injury claims
You can move forward with a CRT or small claims action if you wish. We recommend getting legal advice about injury claims before filing anything with the courts. Some cases make their way all the way to the B.C. Supreme Court, where things can get complex.
I know this is not the outcome you were hoping for, but hopefully, this provides you with some clarity behind our decision.
Manager, Contact Centre
Claims Contact Centre
Providing fault during the review process
The person who submitted the appeal above would have done well to get legal representation.
When submitting an appeal. talk about why the other side’s information was not correct. If you don’t know how to do this, speak to a personal injury lawyer or any law firm that handles lawsuits.
Instead of going through the court system, you might be able to enter into a dispute resolution process, like arbitration. The claims process is complex, and you need to speak to a small claims court lawyer. You might be able to do a freedom of information request and ask for police reports. Below is something you can use for an FOI request.
Below is a helpful video, and also some templates you can use.
Insurance Corporation of British Columbia
Re: MVA of
BC Driver’s Licence No.
“Pursuant to the Freedom of Information and Protection of Privacy Act RSBC 1996 Chapter 165, we write to request a complete copy of your files relating to the above motor vehicle accident. We further request any other information that you may have relating to our client, .
We have enclosed an authorization for the Release of Information signed by which, we expect, is sufficient authority under which you may release the above-requested documents.
Thank you for your attention to this matter.”
Many lawyers in Victoria and Vancouver offer free consultations. But there will be a time limit for filing an appeal, which we believe is 30 days. Don’t miss out on medical care because you waited too long. Below is another template that you might use when speaking to ICBC.
Insurance Corporation of British Columbia Claims Division
425 Dunedin Street
Victoria, BC V8T 5H7
Re: client name
“We request that you provide us with the following information:
1. Accident Report (a clean copy, if possible);
2. Copies of all forms signed by our client at the request of ICBC;
3. A copy of any statement(s) our client has provided, whether in written or recorded form;
4. The names and addresses of the registered owner and driver of all motor vehicles that were involved in the above-noted accident;
5. The names, telephone numbers and addresses of any witnesses to the accident, of whom you are aware;
6. Your estimate of the damage to all vehicles involved in this motor vehicle accident;
7. Any medical information you have obtained pertaining to our client; and
8. Any additional information you have on file pertaining to this accident.
We look forward to working with you to resolve this claim.”
We hope you do well with your dispute of the ICBC decision.