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Bad Faith Claim Against ICBC Not Bound to Fail

ICBC is in trouble again with allegations of bad behaviour by an insured. This plaintiff had Autoplan insurance coverage from ICBC for a 1990 Ferrari F40 when he accidentally drove the Vehicle into a utility pole, leaving it badly damaged. The plaintiff said that  ICBC took control of the vehicle immediately after the accident and never relinquished it, which effectively prevented him from carrying out the needed repairs himself. He pleads that ICBC specifically agreed to arrange and pay for the repairs itself but then failed to do so in a timely way.

ICBC accepted that it was obliged to cover the cost of the repairs, but only up to the actual cash value of the Vehicle. An arbitrator determined the actual cash value of the Vehicle to be $696,061.17.

ICBC said it has already paid $789,374.66 towards the cost of the repairs and, relying on the Regulation, refused to pay any more. The total cost of the repairs is anticipated to be in excess of $982,000.

In refusing ICBC’s application under Rules 9-5 and 9-6 to strike certain paragraphs of the plaintiff’s Amended Notice of Civil Claim Judge Milman had this to say:

[23]         I am satisfied that the plaintiff pleads a valid cause of action for breach of an implied term of good-faith performance, including an obligation to approve and facilitate the needed repairs in a timely way. General support for the existence of an inherent duty of good faith performance can be found in the decision of the Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71, at para. 33. There is also more specific authority suggesting that a duty of prompt performance may be implied in contracts of insurance: McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283, at para. 203; 702535 Ontario Inc. v. Non Marine Underwriters Members of Lloyd’s London, (1999), 184 D.L.R. (4th) 687 (Ont. C.A.) at paras. 28-30.

[24]         I am not persuaded that the bad faith claim is bound to fail, as ICBC argues, because it depends on the implication of terms that are inconsistent with the written agreement, particularly the covenant to indemnify. The terms that the plaintiff alleges to be implied appear to be supplemental to, rather than inconsistent with, that covenant.

[25]         The fact that ICBC made a fund of $503,028 available to the plaintiff after April 1, 2014 is not a complete answer to the plaintiff’s complaint about undue delay. First, it does not account for any delay until that date, which may be actionable if the plaintiff can show that that part of the delay was due to ICBC’s breach in bad faith of its duty of prompt performance, causing him harm as he alleges. Second, that sum is less than the full amount of the repairs that were eventually paid for – the plaintiff may therefore still have a viable complaint about ICBC’s subsequent delay in approving or paying the remainder of the repair costs up to the value of the Vehicle. (Heran v. Insurance Corporation of British Columbia, 2018 BCSC 344)

Posted by Mr. Renn A. Holness, B.A. LL.B.

Tags: bad faith, ICBC, icbc case examples, ICBC Claims, Rule 9-5, Rule 9-6

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