Limitation period for Part 7 claims

This page provides information about limitation periods that apply to Part 7 claims. All notice periods and all limitation periods must be complied with to protect the right to make a claim.

 

Generally a two year limitation period applies

Section 103 of the Insurance (Vehicle) Regulation specifies that, in the absence of special notice being given to ICBC, a two year limitation period applies to court actions for Part 7 benefits:

 

(1) No person shall commence an action in respect of benefits under this Part unless

(b) the action is commenced within 2 years after

(i) the date of the accident for which the benefits are claimed,

(ii) where benefits have been paid, the date he received the last benefit payment under this Part, or

(iii) the date on which the corporation receives a notice under subsection (2).

(2) If an insured makes a claim for benefits under this Part and the corporation has not made a payment in accordance with section 101, the insured may issue written notice to the corporation within 2 years of the date of the accident for which the benefits are claimed of the insured's intention to commence an action in respect of benefits under this Part.

(3) A notice referred to in subsection (2) must be

(a) in the form established by the corporation, and

(b) sent by registered mail addressed to the claim office dealing with the insured's claim.

(Insurance (Vehicle) Regulation, s. 103).

 

Note that the two year time period is not necessarily counted from the date of the accident. According to s. 103(1)(b)(ii) of the Insurance (Vehicle) Regulation, where Part 7 benefits have been paid the two year time period is counted from the date the claimant last received a Part 7 benefit payment.

 

Because of the significant consequences of missing the limitation period, extreme care should be taken in keeping track of the date that will be two years from the date of the last Part 7 benefit payment. It is generally safer to keep track of the two year anniversary of the accident as the starting point for starting a Part 7 action and then assess at that time whether filing the claim for the Part 7 action could, and should, be delayed.

 

Extending the Part 7 limitation period

As noted above, the two year limitation period for commencing a court action for Part 7 benefits is counted from the date of the accident, or the date of the last Part 7 benefit payment, whichever is later. Therefore, the Part 7 limitation period will be extended each time a Part 7 benefit is paid. Further, s. 103(2) of the Insurance (Vehicle) Regulation states that if no payments have been made the two year Part 7 limitation period can be extended by giving notice to ICBC in the form specified by the corporation. The form specified is called a CL430.

 

As is explained below in more detail, it is sometimes necessary to preserve the right to proceed with a Part 7 claim as part of prosecuting a tort claim. This may mean that even if the claimant is not presently claiming Part 7 benefits, it may nevertheless be necessary to file a Part 7 action to satisfy the limitation period. However, ICBC does not necessarily want claimants filing “precautionary” Part 7 actions because that cost may be passed on to ICBC when the tort claim is resolved. The purpose of s. 103(2) of the Insurance (Vehicle) Regulation is extend the limitation period for the Part 7 claim in the hope of avoiding the need to file a precautionary Part 7 claim when no Part 7 benefits have been paid.

 

According to the plain wording of s. 103 it is arguable that the limitation period can only be extended if ICBC has not made any Part 7 payments. However in Claims Bulletin 2004-40 dated December 7, 2007 ICBC stated that it would take a broad view with respect to s. 103(2) and that it may agree to extend the Part 7 limitation period even if a payments have been made under Part 7:

 

ICBC has given a broad interpretation to subsection 103(2), specifically to the phrase, “the corporation has not made a payment in accordance with section 101.” The phrase should not be interpreted to mean that section 103(2) applies only if ICBC has made no payments. It will apply, for example, if ICBC has made a payment early in the claim but subsequently refuses to make a further payment or has yet to make a further payment and time is running out. The purpose of the amendment is to eliminate the cost of issuing precautionary Part 7 writs purely for limitation purposes. This purpose would not be fully realized if subsection 103(2) were to be interpreted narrowly so as to limit its application only to cases in which no benefits have been paid at all.

(Claims Bulletin 2004-40 dated December 7, 2007).

 

Although the claims bulletin was intended to clarify the situations in which precautionary Part 7 actions were needed, it still leaves some uncertainty e.g. how can a claimant be certain that ICBC “has yet to make a further payment”? Therefore, claimants should be cautious about simply sending in a CL430 form and should require ICBC’s express agreement to extend the Part 7 limitation period regardless of whether Part 7 payments have been made.

 

A Part 7 action must be filed even if ICBC has been paying Part 7 benefits

Claimants should not think that just because ICBC has been paying Part 7 benefits in the first two years after the accident that there will be no future dispute as to payment of Part 7 benefits and that therefore no Part 7 court action need be filed. ICBC may cease paying Part 7 benefits at any time. See for example Sauer v. Scales, 2009 BCSC 1705 (at para. 7) where ICBC initially paid some chiropractic and physiotherapy expenses under Part 7, but then discontinued benefits to the plaintiff on the basis that the accident did not cause his injuries.

 

Unless both the claimant’s tort and Part 7 claims are resolved prior to expiration of the limitation period for the Part 7 claim, a Part 7 action should be commenced. Failure to do so may result in the claimant losing the ability to ultimately force payment of Part 7 benefits the claimant is entitled to.

 

Limitation periods for Part 7 claims by young persons

Section 1(1) of the Age of Majority Act, RSBC 1996, c. 7 states that the age of majority in British Columbia is 19 years of age, and s. 1(2) states that a person younger than 19 is considered to be an “infant” or a “minor”. The word “infant”, when used in a legal sense in British Columbia does not refer only to a young baby, but to anyone younger than 19.

 

The Limitation Act, RSBC 1996, c. 266, s. 7 considers minors to be “under a disability” and says that the clock counting down the limitation period does not start to run until the “disability” ends i.e. when the minor reaches the age of 19:

 

7(1) For the purposes of this section,

(a) a person is under a disability while the person

(i) is a minor, or…

(2) If, at the time the right to bring an action arises, a person is under a disability, the running of time with respect to a limitation period set by this Act is postponed so long as that person is under a disability.

(Limitation Act, RSBC 1996, c. 266, s. 7)

 

Therefore, the general rule for most types of court cases is that minors need not commence an action until two years after their 19th birthday. However, that rule is changed by s. 103 of the Insurance (Vehicle) Regulation which provides that:

 

No person shall commence an action in respect of benefits under this Part unless…the action is commenced within 2 years…

(Insurance (Vehicle) Regulation, s. 103).

 

Therefore, it has been held that even minors must commence Part 7 actions within two years and cannot wait until after their 19th birthdays to commence a Part 7 action.

 

In McIlvenna (litigation guardian of) v. Insurance Corporation of British Columbia, 2008 BCCA 289 the following timeline of events applied:

  • On 14 September 1995, the plaintiff, aged 6 at the time, was involved in an accident (para. 5).
  • On 4 April 2003, ICBC refused Part 7 benefits (para. 8).
  • ICBC then advised the plaintiff that Part 7 benefits were no longer available to the plaintiff because legal action had not been commenced in a timely way (para. 8).
  • A Part 7 action was commenced on 17 September 2003 (para. 9); when the plaintiff was approximately 14 years old i.e. still a minor.

 

The plaintiff, who had suffered a brain injury, sued ICBC for failing to advise him as to the existence of the two year limitation period. The court did not definitively rule on whether the plaintiff’s claim against ICBC for not advising him about the limitation period could succeed, but did say that the two year limitation was a contractual limitation period and not like most statutory limitation periods (para. 23). Further, the court impliedly confirmed the conclusion stated by the trial judge that the two year limitation period is not postponed until the minor reaches the age of majority:

 

That limitation period applies even if a child is involved.

(McIlvenna et al. v. Insurance Corporation of British Columbia, 2006 BCSC 1559 at para. 2).

 

The above confirms that, even in cases involving children, Part 7 actions must be commenced within two years of accident (or within two years of the other events described in s. 103 of the Insurance (Vehicle) Regulation) and for Part 7 claims there is no extension of time until the child reaches the age of majority like there is for tort claims.

 

 

 

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