In Eberhardt v Insurance Corporation of British Columbia, 2025 BCSC 1069, the Supreme Court of British Columbia considered the scope of a claimant’s duty to investigate and identify an unknown owner/driver alleged to have caused an accident when they seek compensation from the Insurance Corporation of British Columbia (ICBC). The Court confirmed the claimant’s investigative conduct on-scene and in the days following the accident, contextualized by their circumstances, will be considered when determining whether they are entitled to bring a claim against ICBC. A similar analysis applies to situations involving the Motor Vehicle Accident Claims Program (MVAC) in Alberta. 

Background

Ms. Eberhardt filed a Notice of Civil Claim alleging she had suffered injuries after she collided with a large truck tire that was resting on the Trans-Canada Highway at approximately 7PM on October 28, 2018. She claimed her injuries were caused by the negligence of an unknown vehicle owner/driver, and that ICBC was liable under the hit-and-run provision of section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c.231:

24(1) If bodily injury to or the death of a person or damage to property arises out of the use or operation of a vehicle on a highway in British Columbia and

(a) the names of both the owner and the driver of the vehicle are not ascertainable…

any person who has a cause of action…in respect of the bodily injury, death or property damage may bring an action against the corporation as nominal defendant, either alone or as a defendant with others alleged to be responsible for the injury, death or property damage, but in an action in which the names of both the owner and the driver of the vehicle are not known or ascertainable, recovery for property damage is limited to the amount by which the damages exceed the prescribed amount.

…

(5) In an action against the corporation as nominal defendant, a judgment against the corporation must not be given unless the court is satisfied that 

(a) all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be, and

(b) the identity of those persons or that person, as the case may be, is not ascertainable.[1]

After Questioning of the claimant occurred, ICBC applied for dismissal of Ms. Eberhardt’s claim by way of summary trial under R 9-7 of the Supreme Court Civil Rules, arguing her conduct did not satisfy section 24(5) of the Act requiring her to take all reasonable steps to identify the unknown owner/driver and prove they were not ascertainable.

Issue

Did the claimant take sufficient steps to investigate and identify the unknown owner/driver that she alleges caused the Accident, such that she is entitled to bring an action against ICBC under section 24(1) of the Act?

Test

The Supreme Court held that reasonableness has both subjective and objective elements:

1. Subjective – the claimant must know that the vehicle had been in an accident and must have been in a position and condition that it would be reasonable for them to discover and record the appropriate information;
2. Objective – considers whether the claimant had pursued the investigation to identify the vehicle and its owner/driver as resolutely and resourcefully as they would have done in like circumstances had there been no such provision.[2]

The Court confirmed the obligation on the claimant to take steps and pursue the investigation extends beyond the date and time of the accident and its immediate aftermath.[3]

Analysis

At Questioning, Ms. Eberhardt testified she saw a vehicle stopped on the right-hand shoulder ahead of the tire, but was unable to say whether the tire had come from that vehicle and failed to note the vehicle’s license plate number. She continued driving because she was focused on getting her son home to bed, however she called ICBC the next morning.

The Court suggested a few different investigative steps the claimant could have taken to determine the origin of the tire, including taking photographs or recording its brand and dimensions. Further, she could have made some effort to locate the parked vehicle to determine whether it was involved. Despite her failure to take any of the above steps, the Court did not find her investigative efforts unreasonable because it was late in the evening and her attention was on her child’s well-being.

The next morning, the claimant called ICBC to report the accident and retained counsel, who placed a classified newspaper advertisement seeking witnesses. The Court deemed these steps insufficient on their own. She could have pursued investigative avenues such as contacting local RCMP detachments or making inquiries with the Ministry of Transportation’s highway maintenance contractor, which would not have taken significant effort.

Decision

The Court found the claimant did not pursue all reasonable avenues to investigate and identify the unknown owner/driver in the days following the collision, was not entitled to bring an action against ICBC under section 24(1) of the Act, and granted ICBC’s application. The action was dismissed.

Takeaways

A claimant seeking compensation under the hit-and-run provisions found in the Insurance (Vehicle) Act in British Columbia and Motor Vehicle Accident Claims Act in Alberta must show they have taken reasonable investigative steps to identify the unknown owner/driver. In each respective jurisdiction, a Court will consider the claimant’s on-scene conduct as well as steps taken in the days following the collision.

In British Columbia, courts focus on a subjective/objective test - the claimant (1) must know that the vehicle had been in an accident and must have been in a position and condition that it would be reasonable for them to discover and record the appropriate information, as well as (2) whether they had pursued the investigation to identify the vehicle and its owner/driver as resolutely and resourcefully as they would have done in like circumstances had there been no such provision.

In Alberta, the ultimate question is whether the claimant took steps that were reasonably available to them. The claimant must make efforts that are logical, sensible or fair, but they are not required to undertake steps that are futile or which involve the expenditure of unreasonable sums of money. 

[1] For the equivalent legislation in Alberta, see Section 7(1) and (5) of the Motor Vehicle Accident Claims Act, RSA 2000, c M-22.

[2] Courts in Alberta require the plaintiff “to take steps that are reasonably available to the injured person, but does not require him or her to undertake steps that are futile or which involve the expenditure of unreasonable sums of money” (See Hagan v John Doe, 2003 ABQB 897, more recently endorsed in Ffraser (sic) v Alberta (Motor Vehicle Accident Claims Act, Administrator), 2015 ABQB 541) 

[3] Slezak v ICBC, 2003 BCSC 1679 at para 42.