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A judge has denied three people compensation from ICBC following a hit-and-run case due to their lack of effort to try and locate the offending driver.
According to the ruling, around 4 a.m. on Feb. 3, 2019, a stolen GMC Sonoma pick-up truck, speeding up Sussex Avenue in Burnaby, ran a stop sign and t-boned the driver’s side of a Mercedes with the three people inside.The truck ended up in the bushes lining the path, just east of Metrotown Mall and the Metrotown Skytrain station. The driver of the truck fled the scene and his identity remains unknown.Under Section 24 of the Insurance Vehicle Act, anyone can seek compensation for damages or medical treatment against ICBC if the identity of the hit-and-run driver is not known.However, it states that “In an action against the corporation as nominal defendant, a judgment against the corporation must not be given unless the court is satisfied that (a)all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be, and (b)the identity of those persons or that person, as the case may be, is not ascertainable.” Larrissa Fearon, her brother Duwayne Fearon and the back passenger Shawayne Powell did not make all reasonable efforts to ascertain the identity of the unknown driver, according to the ruling.“The plaintiffs did not take the reasonable steps to seek to learn the identity of the driver ‘resolutely and resourcefully’, as they would have done had there been no statutory (Section). 24 ICBC safety net, as required by the statute and the jurisprudence,” Mr Justice Crerar ruled.
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“Rather, the plaintiffs frankly admit that they took no steps whatsoever for over a year to obtain information that could assist in identifying the fugitive driver. Given their situation and circumstances, they could and should have taken various minimally burdensome steps to fulfil their obligation under s. 24(5).”Crerar said in his ruling that all three plaintiffs did not suffer serious injuries preventing them from taking measures such as putting up signs and advertisements seeking witnesses to and information about the collision. He added that posting a sign or taking out an ad in a timely fashion might have jogged someone’s memory or someone who knew the driver may have felt compelled to come forward.“Despite the early hour, at least four individuals directly witnessed the aftermath of the accident: two men playing a videogame in a nearby apartment building, both of whom rushed to the scene of the accident upon hearing the brakes and collision, as well as two other passers-by, including one who called 911,” the ruling states.
“Those two young men in fact attempted to chase down the fugitive driver, reckoning that he would have fled away from Metrotown Station, towards the east, where there was a school as well as alleyways.”The plaintiffs argued that due to the time of the incident and that it was dark, it was unlikely any witnesses would be found. Crerar did not agree.“Of course, timely signs or advertisements in the critical days or weeks following the collision may in the end not have gathered any further evidence,” he stated.“But thanks to the plaintiffs’ inactivity, we will never know whether that evidence was lost.”The plaintiffs argued that police investigated the collision and they assumed it would be fully investigated. “They argue that apart from this reasonable reliance, the unsuccessful police investigation also indicates that any efforts by the plaintiffs would have been futile,” the ruling reads.“The plaintiffs argue that the police conducted an extensive and thorough investigation of the collision, including interviews with the plaintiffs and a witness, a police dog search, and a forensic examination of the interior of the pickup truck.”The investigation was closed seven days after the incident.“The plaintiffs have failed to prove that they met the requirements under s. 24(5),” Crerar stated. “Their claims are dismissed.”
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