Hullenaar v. Wells, 2010 BCSC 1070
August 3, 2010- ICBC applied for an order dismissing the injury claim because of the claimant’s delay.
The ICBC injury claim arose in November of 1997. The claimaint was in his car when he was “boxed in” by two cars being driven by two of the defendants. He says that the other driver got out of one of the cars and struck him in the face with a stick causing damage which led to the removal of his eye.
The other driver agrees that he did approach the claimant’s car, that he picked up a small stick and that he moved to tap on the driver’s side window. He says that the claimant unexpectedly rolled his window down and was struck accidentally on the side of the face.
ICBC denied the injury claim saying that the injuries did not arise from the use or operation of motor vehicle.
In order to assess whether the claim should be dismissed the court focused on four main questions:
1. Has there been inordinate delay?
2. Is the delay inexcusable?
3. Has the driver being sued been prejudiced by the delay?
4. Do the overall interests of justice demand that the action be dismissed?
In the judge’s view the delay of 13 years prejudiced the driver being sued in his ability to present a full and proper defence.
This was an unfortunate case. The injury claimant appears to have suffered significant injury. As the judge observed, it is hard to imagine why the matter was not moved forward with anything approaching reasonable speed, however the claimant alone was responsible for the delay. Based upon the evidence presented, the interests of justice did not favour allowing the claimant to continue his injury claim and the judge dismissed the claim.
The applicant ICBC was entitled to its legal fees and expenses of the application. Posted by Mr. Renn A. Holness
Issues: Should the court be allowed to dismiss an injury claim because of delay?