Unfortunately, ICBC is taking a very hard line in recent times trying to find ways of breaching a driver/owner of the contract of insurance. The end result of the breach is that ICBC does not have to pay out vehicle damage claims and also, can go after the “breached” driver/owner for full payment of ICBC's costs as a result of the accident. As you can see, there is a great incentive for ICBC to breach somebody of their contract of insurance: they save money.
It is a standard process for the ICBC adjuster to breach you of your contract of insurance if the police gave you a 24-hour Roadside Suspension. In recent times, the government expanded the use of 24-hour Roadside Suspensions, as part of their anti drinking and driving policy. Basically, a 24-hour Roadside Suspension cannot be disputed unless you ask the police officer to administer a roadside screening device and he refused to do so.
Therefore, without any real evidence of state of impairment, you get a 24-hour Roadside Suspension from the police. ICBC then turns around and says you are in breach of your contract of insurance because you are impaired by reason of alcohol yet getting a 24-hour Roadside Suspension is not equivalent to being impaired while drive.
The case of Smissen v. ICBC 2004 BCSC deals with the onus on ICBC to prove, on a balance of probabilities, that at the time of the accident the person was under the influence of intoxicating alcohol drug to such an extent as to be incapable of the proper control of his vehicle.
The breathalyzer test, whether administer on the roadside or at the police station, even when reading is over the legal limit is not enough to prove that someone is incapable of proper control of his vehicle. In Smissen v. ICBC 2004 BCSC there was a 24-hour Roadside Suspension issued after a failed handheld breathalyzer test, but at trial there was evidence that such a machine had to be calibrated every 2 weeks in order to yield valid results and there were no calibration records. Additionally, the driver in this case had a heart condition that caused blackouts, which was ultimately found to be the reason why he veered into the ditch. There was also a witness who observed the path of the vehicle for 8 miles and didn't notice any erratic driving.
Basically, after a 24-hour Roadside Suspension, one can argue that either the breathalyzer machine was not operating properly because of calibration issues and/or that being over the legal drinking limit does not automatically prove that you are incapable of the proper control of your vehicle. Further, one can argue that under the current legislation a 24-hour Roadside Suspension doesn't even mean you are over the legal limit.
As noted above, it is pretty well automatic that ICBC will breach you of your contract of insurance regardless of your explanation on drinking. They find out about the 24-hour Roadside Suspension because they get a copy of the police report which usually has that clearly on the police report.
One point is if you are going to see ICBC over the accident to give a statement, they would like to see you say you had nothing to drink because then they will turn around and breach you of your contract of insurance for giving a false statement.
When ICBC breaches someone of their contract of insurance, ICBC has the clear upper hand due to the various legal statutes and regulations introduced by the Government.
The starting point is ICBC has complete control as to the decision on insurance coverage. They do not have to consider the testimony of the driver in their decision. They can use a healthy level of skepticism and conjecture to make their decision without any recourse if they make the wrong decision. Once ICBC makes the decision, the decision is final unless you dispute it. That is, you need to take positive steps of suing ICBC in either small claims court or Supreme Court for insurance coverage. You must do so within a year of the denial. If you do not take positive steps, ICBC's decision is final and any damages flowing out of their decision will be your responsibility.
Depending on the potential exposure, you have to make a decision whether you want to sue ICBC or simply accept their decision.
For example, if it is a single vehicle accident than the loss to the driver/owner is there is no coverage for the vehicle damage.
However, if the driver caused an accident to another vehicle then ICBC will be looking to the driver/owner to pay back any damages paid to the other vehicle and its occupants, whether it is a vehicle damage claim or an injury claim. In some instances, the claim by ICBC can be very large, often in the hundred thousand dollar plus range.
Surprisingly, ICBC is able to automatically place their claim against your driver's license as if it is a proven debt against you. The Government has given them complete control to refuse renew of your driver's license or vehicle insurance until you pay out the demand. ICBC doesn't have to prove how much they paid out and whether it was reasonable. They simply entering the data in the computer and that's good enough to become your debt.
Because of ICBC’s ability to take away a driver’s license or insurance, you cannot just simply ignore ICBC's demand. You need to dispute the claim by suing for insurance coverage or you need to pay the debt. The alternative is not to drive in the province of British Columbia any longer.
To make matters worse, in most cases, it is not economically worth hiring a lawyer because a lawyer would be a very expensive way of running the lawsuit. Also, the cost of a lawyer is often not something you can claim back from ICBC even if you win.
If that was not enough, the Government has placed a rule that in small claims court you cannot seek a declaration so ICBC often tries to stymie due process by arguing that the small claims court has no jurisdiction to consider the insurance breach issue because it's a declaration of insurance. ICBC tries to force the case to be heard in Supreme Court which necessitates the use of a lawyer and the potential risk of having to pay a portion of ICBC's legal fees and all their expenses if you lose the case.
These breach cases are also very hard fought by ICBC and they seldom back down even if they are flat-out wrong because they know, due to expense of a lawyer, they have the upper hand.
Ultimately, you need to do a cost-benefit analysis when faced with a breach situation. If the loss is not large, you may wish to walk away from the claim for insurance. If the potential exposure is very high, especially when there is an injury in the other vehicle, ignoring the breach would be a very bad idea.
