The lawyers at Filkow Law have acted for thousands of drivers in British Columbia in cases such as drinking and driving, driving while prohibited, hit and runs, and all types of Criminal Code and Motor Vehicle Act cases. In many of these cases our clients have been involved in accidents and where injuries have occurred to them and to the other parties and ICBC becomes involved. Apart from the consequences of the criminal or driving court matter itself, ICBC is a very big issue. That is, ICBC will say the driver had no insurance because he was drinking and driving, or left the scene, etc. As a result, we have become very experienced and successful in handling insurance (ICBC) breach cases.
If ICBC suspects that you were in breach of your insurance policy at the time of an accident they will be quick to deny you coverage. ICBC can deny your coverage for a number of reasons, from drinking and driving to making a misleading statement to an adjuster. This leaves you liable for the damage and injuries to both yourself and others caused by the accident. A breached ICBC policy is extremely costly, both financially and emotionally, and can put you and your family in an incredibly stressful situation. The burden, however, is on ICBC to prove that you breached your insurance policy. Even if they are successful in proving the breach, they still have to collect the settlement from you. You should not accept a breach, or enter into a payment plan, without talking to a lawyer.
Why is it difficult for ICBC to prove you were in breach of your policy? Take for example, a situation where you are suspected of drinking and driving and causing an accident. You may be charged criminally at the scene for impaired driving, or you may fail a breathaylyzer at the scene and be given an immediate roadside suspension. In either of these scenarios, it is almost certain ICBC will say you are in breach. Even if you successfully fight the charge or dispute the prohibition, ICBC will likely breach you by relying on the officer’s’ evidence from the scene.
The burden, however, is on ICBC to prove your breach is higher than a simple suspicion that you were drinking. ICBC must show that, more likely than not, you were incapable of properly controlling your vehicle and that caused the accident. The law is well established and goes back to the 1960s, where in Union Insurance Society of Canton Limited v. Andre Arenault, 1961 CanLII 83 (SCC), the Supreme Court of Canada stated:
In my view there is a wide difference between being likely to drive improperly and being incapable of driving properly. Every driver who is under the influence of liquor to the point of being incapable of proper control is certainly impaired, but in my opinion it does not follow that every impaired driver is necessarily incapable of proper control.
This was quoted in a 1980 case called Kim v. Insurance Corp. of British Columbia (1980), 21 B.C.L.R. 18 (S.C.) which added:
In terms of the clear distinction drawn by those words it would be necessary for the defendant to prove that the plaintiff’s state went beyond impairment to a point where he was incapable of driving properly. It necessarily follows that the state of incapacity cannot be established by the mere proof that the breathalyser reading exceeded .08.
A failed breathalyzer test is simply not enough evidence for ICBC to prove that you were incapable of driving when the accident occurred. There must be other evidence of intoxication, such as witnesses at the scene, or an expert stating in court that your blood/alcohol level at the time of the accident would have left you incapable.
An ICBC insurance breach is serious. It can leave you owing ICBC hundreds of thousands of dollars and without a license until you pay. Even where a breach is established there are many strategic and effective legal avenues to take advantage of. If ICBC has told you they are considering breaching your policy you should consult a lawyer immediately to discuss your options.
The lawyers at Filkow Law have decades of experience assisting drivers with criminal charges, roadside prohibitions and the ICBC breaches that can result. Call 604-558-6678 today for a free consultation.