Disagree With ICBC's Fault Decision? Disputing a Responsibility Assessment

After a crash, ICBC decides how much of the blame, if any, falls on each driver. That responsibility assessment can raise your premiums and decide who pays to fix your vehicle.

If you think ICBC got it wrong, there is a set route to challenge the decision. It runs on tight deadlines, and evidence gathered early is much easier to use.

Why the fault decision still matters under Enhanced Care

Since May 1, 2021, ICBC's Enhanced Care model has replaced most crash injury lawsuits with care and recovery benefits that are available regardless of who caused the crash. Our article on whether you can still sue after a crash under Enhanced Care explains the limited exceptions.

Fault has not disappeared, though. ICBC still assesses responsibility after a crash, and that assessment affects you in two practical ways:

• Premiums. ICBC says that if you cause a crash, your premiums will likely go up the next time you renew or buy a policy, across basic and optional coverage.
• Your own vehicle. If you are found fully responsible, the other driver's repairs are covered by their own Basic Vehicle Damage coverage, but your repairs are covered only if you have Collision coverage, and you pay the deductible. Without Collision coverage, ICBC says you pay 100 per cent of your own repairs.

ICBC can find you fully, partly or not responsible, so even a partial finding can matter.

How ICBC assesses responsibility

Your claims representative gathers information about the crash: statements from you, the other drivers, passengers and witnesses, police reports where available, and the estimator's review of the vehicle damage. ICBC says it also looks at the rules of the road in the Motor Vehicle Act and past court decisions on similar crashes. You are then notified in writing whether you have been found fully, partly or not responsible. The regulations call this the notification of responsibility (CL 281).

Step one: raise it inside ICBC

ICBC's process starts informally:

• Talk to your claims representative. Point out anything that may have been missed, such as a witness who was not contacted, or damage that tells a different story about how the vehicles met.
• Ask for the manager. If that does not resolve it, you can ask to speak with the claims manager, who can refer the file to ICBC's Responsibility Review Team.
• Get the detailed assessment. The Responsibility Review Team issues a detailed responsibility assessment, known as the CL 722.

The two 90-day deadlines

Two separate clocks apply, and both are short.

• Requesting the detailed assessment. Before you can take the dispute to the Civil Resolution Tribunal, you must have made a written request to ICBC for a detailed responsibility assessment and received the CL 722. That written request must be received by ICBC within 90 days after the date of the CL 281 notification (Insurance (Vehicle) Regulation, s 148.8).
• Filing with the tribunal. You cannot ask the Civil Resolution Tribunal to resolve the dispute more than 90 days after the date of the CL 722 (Accident Claims Regulation, s 9).

Miss the first deadline and you may never get the document you need to go to the tribunal. Miss the second and the tribunal route closes. Put both dates in your calendar the day each letter arrives.

What you must prove at the Civil Resolution Tribunal

The Civil Resolution Tribunal has jurisdiction over claims about ICBC's determination of the extent to which you are responsible for an accident (Civil Resolution Tribunal Act, s 133(1)(d)). It is independent of ICBC. Its accident jurisdiction does not cover crashes that happened before April 1, 2019 (s 134(2)(c)).

The test is demanding. You carry the burden of proving both that ICBC acted improperly or unreasonably in assigning responsibility to you, and that your share of responsibility is less than the share ICBC assigned (Accident Claims Regulation, s 10). In practice, that means pointing to something specific in how ICBC reached its decision, not only offering a different account of the crash.

The tribunal's own website currently warns that, because of high volumes, it can take several months before an application is reviewed and a Dispute Notice issued.

Building the evidence

These disputes tend to turn on evidence that was gathered early and is specific:

• photographs of the scene, road markings, signage and final positions of the vehicles;
• dash camera footage, saved before it is overwritten;
• names and contact details of independent witnesses;
• photographs showing exactly where each vehicle was damaged;
• the police report, if one was made;
• the specific Motor Vehicle Act rules that applied, such as right of way at the intersection.

For a small claim, ICBC notes it may make financial sense to repay the cost of damages so the claim does not affect your future premium. Speak to your Autoplan broker about that option before deciding whether a dispute is worth pursuing.

Found at fault and think ICBC is wrong? Check your deadlines now

Our litigation lawyers can review ICBC's responsibility assessment and your evidence, help you request the detailed assessment in time, and prepare your claim to the Civil Resolution Tribunal.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.