by Joel Zanatta
A few months ago, a B.C. cyclist named Ben contacted my team at The Biking Lawyer. He told us a harrowing tale of mistreatment by the Insurance Corporation of British Columbia (ICBC), the province’s government-owned insurance company. What Ben explained to us was that he was riding his bicycle on a designated bike route when a young driver operating his father’s Mercedes Benz ran a stop sign. Ben was thrown 6 m across an intersection. His arm was crushed. Emergency personnel attended the scene and stabilized Ben. He was brought to hospital where he underwent emergency surgery, pinning and fusing his bones back together.
During Ben’s many months of rehabilitation, he attempted to work with the insurance company only to learn that the driver of the automobile had denied responsibility. With no investigation whatsoever, based upon the word of their insured, the ICBC deemed Ben partially responsible for the crash. Following ICBC’s decision, the organization sent Ben a bill in the mail for repairs to the driver’s father’s Mercedes Benz vehicle. It was this final insult that led Ben to contact our team for independent legal advice.
Although The Biking Lawyer is Ontario-based, I have exhaustive experience representing cyclists in a variety of jurisdictions including British Columbia. I am aware of the difficulties of the B.C. cycling public in dealing with the public insurer. When Ben explained the facts of his case, it was clear that the ICBC had gone too far and we had to act. Little did I know that after the matter went public, more cyclists would come forward with similar stories of mistreatment.
The important parts of insurance law that cyclists need to know
Few people understand the technical differences between a fault-based motor vehicle law system and a no-fault system, but every cyclist should learn the difference and learn it quickly. In a no-fault system, as was introduced in British Columbia in 2020, a cyclist struck by a car has limited access to the courts to assess fault independently and award compensation. Each party to an accident forfeits their right to access the courts in exchange for equal access to basic medical coverage—no matter who is “at fault” for the accident. By making this change, the insurance company saves money by eliminating injury claims. It does not take long to identify the winners and the losers in a no-fault system. When a motorist strikes a cyclist, it is invariably the cyclist who suffers the severe injuries and who can no longer sue for compensatory damages. Vulnerable road users always lose in a no-fault regime.
But even if you take compensation out of the equation, the situation for cyclists in a no-fault system is fraught. If an insurance company can find a way to blame the cyclist in whole or in part for a crash, then the insurance company will argue that the costs that it incurred in paying for its insured motorist’s damages should be paid by the cyclist—even though it is ostensibly a “no-fault” system. You may read this last sentence with disbelief, however, this is exactly how the no-fault system was applied in Ben’s case and in other B.C. cases involving cyclists. .
What every Canadian cyclist needs to know
The move to a no-fault- system strips cyclists of their rights and puts all of the power into the hands of the insurer for motorists. If you are a cyclist in a province other than B.C., you must be intensely protective of your rights. If your provincial government even lightly broaches the subject of a no-fault type of insurance scheme you must be vocal and push back. (Ontario, Nova Scotia and Alberta have split no-fault systems, not centred on one institution as in B.C.) Motor-vehicle insurance is a hugely profitable business with a powerful lobby. These businesses care nothing for the health and well-being of cyclists. They will not protect you if you are injured by a motorist. Cyclists need to maintain their right to an independent court system in order to address fault and fair compensation.
As for Ben, he fought back and the media got a hold of his story. Shortly thereafter, the insurance company contacted our team and advised us that they would like to withdraw the bill for the repairs to the Mercedes Benz. They also offered to pay $2,500 toward Ben’s bike which was broken in half at the scene of the accident. When pressed, however, about how they mean to compensate Ben for the permanent disability to his arm and the $19,000 dollars in income that he lost from work during his hospital stay, they explained that there is no obligation to pay for this under a no-fault system.
Ben had the courage to bring his story to light. Facing immense pressure, the ICBC issued a statement on May 4 indicating a partial change to its policy. In short, the ICBC claims that it will no longer seek costs against cyclists if they deem them 50 per cent at fault or if the cyclist is catastrophically injured or killed.
Although the change is welcome, the general ICBC policy remains a slap in the face to the cycling public. The ICBC is a multi-billion-dollar insurance company. On what basis should a company who has been gifted the privilege of a provincial monopoly on motor-vehicle insurance seek costs against the cycling public? Furthermore, for this corporation to restrict its changes to cyclists who are “catastrophically injured or killed” by a motor vehicle is callous and disrespectful. Cyclists in British Columbia and across Canada must stand up and demand accountability.
Joel Zanatta is the founder of The Cycling Lawyer and a partner with The Biking Lawyer LLP. He’s a daily bicycle commuter. After a 20-year career in insurance law and personal-injury law, Zanatta decided to combine his legal experience with his passion for bikes, restricting his legal practice to the representation of cyclists across Canada.