Often, being involved in a motor vehicle accident often means being entitled to compensation from a third party, such as another driver. But what happens when someone is the victim of a hit-and-run and cannot identify the driver of the other vehicle?

Section 24 of the Insurance (Vehicle) Act (the “Act”) enables a victim of a hit-and-run accident to bring an action against the Insurance Corporation of British Columbia (“ICBC”) to claim damages for death, injury, or property damage resulting from the hit-and-run, subject to the following conditions:

1. No action may be brought against ICBC for hit-and-runs that occur outside of B.C.
2. Section 24 does not provide coverage for hit-and-runs that occurred on certain roads, such as industrial roads, forest service roads, development roads, roads on private property, and roads on reserve lands.
3. The loss must result from the unidentified motorist’s use or operation of a motor vehicle.
4. The name of the owner and the driver of the hit-and-run vehicle must not be reasonably ascertainable (or the name of the driver not be ascertainable while the owner is found to not be liable).
A victim of a hit-and-run must also comply with a number of strict notice requirements. Written notice must be given to ICBC as soon as reasonably practicable up to a maximum of six months after the accident. Furthermore, ICBC is not liable for vehicle damage to the owner of the victim’s vehicle unless the owner reports the accident to the police within 48 hours and advises ICBC of the police case file number.

Finally, the Court cannot render a judgment against ICBC in such a hit-and-run unless they are satisfied that “all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver … and the identity of those persons … is not ascertainable”. There is therefore an obligation on the victim in such a case to make every reasonable effort to identify either the owner or the driver of the vehicle that fled the scene.
How Much Can You Recover?

Section 105(1) of the Insurance (Vehicle) Regulation (the “Regulation”) provides that ICBC’s liability for a section 24 claim shall not exceed $200,000.

However, if $200,000 isn’t enough to compensate you for injuries or property damage sustained in a hit-and-run accident, you may nevertheless have additional protection if you have purchased and qualify for ICBC’s Underinsured Motorist Protection (“UMP”). Through UMP, ICBC’s liability, including claims for prejudgment interest, post-judgment interest, and costs awarded by any court or arbitrator, cannot exceed $1,000,000. UMP is smaller in scope than ICBC’s default $200,000 protection, and only provides coverage for an amount an insured is entitled to recover from an underinsured motorist as damages for injury or death. Damage to your vehicle or other personal property is not covered.

The law addressing hit-and-run accidents and UMP can be complicated, and legal advice is strongly encouraged. Jones Emery can provide you with that advice; contact Phil Penner, Alec Young, or the writer at 250-382-7222.

A recent judgment of the Ontario Supreme Court, SH v. DH, 2018 ONSC 4506 (“SH”), has set an interesting precedent regarding embryos as property in a divorce when the couple has no biological connection to the embryo. Del Frate J., writing for the court, ultimately sided with the respondent wife while considering aspects of family law, contract law, and human rights law.

In SH, a married couple purchased four embryos from a facility in Georgia for $11,500 USD. Only two of the embryos were viable, and those were then sent to a facility in Mississauga, Ontario, to be implanted in the wife. The wife successfully gave birth to a boy from one of the embryos, and shortly thereafter the couple sought a divorce. They both wanted a different future for the remaining embryo. The wife wanted another child from it, and the husband wished to donate it. According to the Assisted Human Reproduction Act (Canada), the sale of an embryo is illegal, so the court had to make a ruling on ownership.

There were two contracts signed by the couple over the course of these events that were considered. The first was at the facility in Georgia where the embryo was purchased. In this contract, it was stated that in the event of a divorce, the legal ownership must be determined in a property settlement. The second contract was signed at the facility in Mississauga when the embryo was implanted. In that contract, the parties agreed in the event of a divorce, the agency shall respect “the patient’s wishes”. The “patient” here was determined by the Court to be the wife, and following the judgment she was granted ownership of the remaining embryo. Arguments against this decision concerning her age, financial means, and best interests of the previous child were all dismissed.

In coming to the decision, Del Frate J. also considered the BC case JCM v. ANA, 2012 BCSC 584 (“JCM”). The Court in JCM held that sperm straws were also property in the course of a divorce, but because there were multiple straws (13), they were divisible between the parties. As the division was uneven (7 to 6), the party that received the extra straw had to compensate the other for her interest in a half straw. Accordingly, in SH, since the embryos were purchased for $2,875 USD each, the husband was compensated $1,438 for his interest in half the remaining embryo.

The decisions in SH and JCM set interesting precedents regarding the Courts’ treatment of reproductive materials as property and how that property will be valued moving forward.