On an application for contribution and indemnity under s. 4(2)(b) of the Negligence Act, R.S.B.C. 1996, c. 333, the Court held that this section does not apply to the provincial motor vehicle insurer (“ICBC”) when it defends an action under s. 24 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231.

Dodge v. Canada, [2006] B.C.J. No. 2844, British Columbia Supreme Court

At trial, a police officer and an unidentified driver of another vehicle were found to be equally responsible for an accident that killed an auxiliary police officer and injured the Plaintiffs. The police officer and the Attorney General of Canada (the “RCMP Defendants”) and ICBC were each held to be 50% jointly and severally liable. ICBC had been named as a nominal defendant in the tort action by virtue of s. 24 of the Insurance (Motor Vehicle) Act, which applies to hit and run situations when a driver or vehicle is unidentified.

In this proceeding, the RCMP Defendants brought an application for contribution and indemnity from ICBC based on s. 4(2)(b) of Negligence Act, after they had paid the entire amount of the Plaintiffs’ damages. ICBC took the position that, as a matter of social welfare policy, s. 24 provides limited and specific statutory relief to injured victims of hit and run drivers. ICBC submitted that participating in the action as a nominal defendant and the subsequent finding that it was jointly and severally responsible for the Plaintiffs’ damages, did not render ICBC “at fault” within the meaning of s. 4(2)(b) of the Negligence Act.

The Court concluded that the phrase “nominal” defendant meant that ICBC was named in place of the real or actual party in order for the fault of that person to be determined. Further, ICBC’s involvement under this section was said to stand in “entire contrast to something real or substantial” and was simply to provide an injured victim of an unidentified driver the means to statutory compensation. As such, the RCMP Defendants were not entitled to contribution and indemnity from ICBC under the Negligence Act.

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