The application by a motor vehicle insurer (“ICBC”) to dismiss an action commenced by the plaintiff (“Neifer”) on the basis that the action was commenced beyond the two-year limit set by section 3(2) of the Limitation Act, R.S.B.C. 1996, c. 266, was dismissed where the court found that ICBC confirmed the cause of action so as to extend the limitation period

10. February 2004 0

Neifer v. Insurance Corp. of British Columbia, [2004] B.C.J. No. 226, British Columbia Supreme Court

On October 2, 1999, Neifer was struck by a bicycle or motorcycle attached to a motor vehicle (“MVA No.1”). Neifer was unable to obtain the licence number. As a result of MVA No. 1, Neifer suffered a fracture of his right elbow. Through counsel, Neifer reported the accident to ICBC and a claim file was opened. On January 1, 2000, Neifer was involved in a second motor vehicle accident (“MVA No. 2”) As a result of MVA No. 2, Neifer suffered injuries to his neck, back, left wrist and forearm and right and left knees. MVA No. 2 was also reported to ICBC.

Neifer received physiotherapy treatments for the right elbow injury he suffered in MVA No. 1. He requested that ICBC reimburse him for physiotherapy user fees. On July 6, 2001, ICBC issued a cheque to cover ongoing physiotherapy user fees. However, ICBC issued the cheque referencing the claim number for MVA No. 2. In an email, the adjuster for ICBC confirmed the amounts paid and advised that “everything at this point is being paid on the [second] claim for simplicity’s sake”.

Neifer filed the writ with respect to MVA No. 1 on October 23, 2001, outside the two-year limitation period. ICBC applied pursuant to Rule 18A for dismissal of the action on the basis that it was statute-barred.

The court reviewed section 5 of the Limitation Act dealing with confirmation of a cause of action. Section 5(2) of the Act reads, as follows:

5(2) For the purposes of this section,

(a) a person confirms a cause of action only if the person

(i) acknowledges a cause of action, right or title of another, or

(ii) makes a payment in respect of a cause of action, right or title of another.

The court noted that the two methods of confirmation under section 5(2)(a)(i) are quite distinct. Where either occurs, the running of time will re-start even if the maker of the acknowledgement or payment had no such intention. Under section 5(2)(a)(i), a payment “in respect of” a claim does not require any acknowledgement of liability to trigger the confirmation: see Fournier v. Evanow (1995), 2 B.C.L.R. (3d) 237 (C.A.).

In this case, the court was satisfied that ICBC’s payment of the user fees for the physiotherapy was in respect of the tort claim arising from MVA No. 1. The fact that ICBC’s adjuster used the claim number for MVA No. 2 in making the payment was not determinative. In the result, ICBC’s application was dismissed with costs.

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