Executive Summary: Key Legal and Evidentiary Issues

• Appellants were struck by a stolen pickup truck at about 4 a.m. on February 3, 2019, and a person wearing dark clothing and a hoodie was seen fleeing the accident scene on foot, disappearing into the darkness.

• RCMP conducted a thorough criminal investigation — deploying police dogs, canvassing for video cameras, and performing forensic examination of the stolen vehicle — all of which yielded no useful information.

• The trial judge dismissed the appellants' claim against ICBC under subsection 24(5) of the Insurance (Vehicle) Act, finding they failed to make "all reasonable efforts" to ascertain the unknown driver's identity.

• Appellants took no independent investigative steps for over a year, eventually posting neighbourhood notices in March 2020 that produced only one response from a witness already known to police.

• On appeal, the Court found the trial judge committed an error of law by failing to conduct a holistic, case-specific assessment and by not placing the appellants' actions in the context of the police investigation.

• Given the serious criminality involved, the Court of Appeal held it was reasonable for the appellants to rely on the police rather than undertake what would have amounted to a criminal investigation of their own.

The collision and its aftermath

On February 3, 2019, at about four in the morning, appellants Larissa Kady-Ann Fearon, Duwayne Doras Fearon, and Shawayne Cecil Powell were driving through a residential neighbourhood in Burnaby, British Columbia, near the Metrotown SkyTrain Station, when their vehicle was struck at high speed by a stolen pickup truck. The truck had run a stop sign at a T-intersection where Sussex Avenue meets Beresford Street. The appellants were proceeding along Beresford Street, heading towards Metrotown. The pickup truck had been reported stolen two days earlier. After the collision, the driver of the truck fled the scene. One of the appellants, Mr. Fearon, saw a person in a black-and-white hoodie and dark pants running south-east parallel to Beresford, but did not see that person emerge from the truck and could not give any other description. Neither of the other appellants saw anything at all. The area was dimly lit with very little street or pedestrian traffic at that hour, and Mr. McGlynn, a nearby resident who testified at trial, observed that Metrotown station, about 100 yards to the northwest, closed down at 1:30 a.m., at which time the area became dead space, and reopened at 5:36 a.m.

The police investigation

Constable (now Corporal) Gagné of the Burnaby RCMP was notified by Emergency Health Services at 4:13 a.m. and arrived at the scene at 4:23, accompanied by Constable Rideout. As soon as the licence plates were checked, Constable Gagné knew the pickup truck had been stolen, a serious criminal offence, and was aware that the person who had operated the truck had fled, adding to the criminality. The appellants were being placed in an ambulance to be taken to Burnaby General Hospital, and Constable Gagné arranged for Constable Rideout to follow them there to interview them. Given that he was dealing with vehicle theft and a hit-and-run, Constable Gagné took a number of steps that are followed only in the case of significant criminality, not for motor vehicle collisions generally. These comprised calling in the Police Dog Service to attempt to follow and locate the fugitive driver, checking for video cameras in the area to see if there had been any capture of the collision or of the driver fleeing on foot, and arranging for a forensic examination of the stolen vehicle to search for DNA, fingerprints, or anything else that might help identify the driver. As part of his investigation, Constable Gagné spoke to three witnesses. The first, Mr. Mehmi, had heard the crash and called it in to Emergency Health Services, but had not seen anything or anyone. The second, Mr. McGlynn, had been playing video games in his apartment on the second floor of a building half a block away on Sussex Avenue. He heard screeching tires, looked out his window, saw nothing but heard a crash. His neighbour, Mr. Johnson, was playing the same videogame and heard the noise through his headphone connection. Mr. McGlynn and Mr. Johnson ran out onto the street and, after checking on the appellants, started looking for the driver, running southeast along Beresford before eventually giving up and returning to the scene. None of the investigative steps yielded useful information. The police dogs were unable to track the driver, there were no video cameras in the immediate area that could have captured the collision, and none within a block or so that could have captured the fleeing driver. The forensic examination turned up no evidence of who had been driving. None of the witnesses could give a description of the person. Constable Gagné concluded that there was no basis for continuing the investigation and closed it on February 10, 2019.

The appellants' actions and the claim against ICBC

Each of the appellants gave a statement to the RCMP at Burnaby General Hospital following the collision, and each reported the incident to ICBC. The appellant Duwayne Fearon testified that he was told by the police officer at the hospital that the police would follow up with them and let them know what was going on. He did not contact the police to follow up himself and heard nothing from them. He was given a number of forms to fill out by ICBC, but was given no advice about what steps should be taken in relation to the unidentified driver. The appellant Shawayne Powell testified that he was told he did not have to do anything other than report the matter to ICBC, which he did. Again, he received no advice from ICBC about any steps that should be taken. The appellant Larissa Fearon testified that she was told by the police at the hospital that "they would reach back out to us and that the only thing that we needed to do was call ICBC." Like the others, she received no advice from ICBC, though she did retain counsel. None of the appellants heard further from the RCMP, and none took any active steps themselves to identify the driver of the pickup truck until March 2, 2020. At that time, an agent acting on behalf of Mr. Fearon and Mr. Powell placed ads and posted signs seeking witnesses and information concerning the collision. These produced just one response — from Mr. McGlynn, the videogame player who had attended at the scene. Since the owner of the stolen truck could not be held responsible and the driver remained unknown, the appellants sued ICBC as nominal defendant as permitted by subsection 24(1) of the Insurance (Vehicle) Act, RSBC 1996, c 231.

The trial decision

The trial judge dismissed the appellants' claim, finding they had not satisfied the requirements of subsection 24(5) of the Act. The judge acknowledged the fact-specific nature of the inquiry and reviewed the extensive jurisprudence under section 24(5), but concluded, "[w]ith some regret," that the appellants had not met the onus placed upon them. In the judge's words, "the plaintiffs frankly admit that they took no steps whatsoever for over a year to obtain information that could assist in identifying the fugitive driver." The judge reasoned that while the collision left the plaintiffs dazed and shaken up, all three were discharged from hospital within two hours and were not in a condition preventing them from taking steps in the days and weeks following the accident. The judge found it would have taken little effort to put up signs and advertisements seeking witnesses — what he described as "minimally burdensome steps." He reasoned there was "a real possibility that someone in the area could have heard the speeding pickup truck or the loud squeal of brakes and the bang of the vehicular collision, or have witnessed the collision or the unusual sight of the fleeing driver." He further speculated that the fugitive's family, friend, or roommate, upon seeing a sign or advertisement, might have reported the fugitive's unusual return home. The judge also noted the potential unfairness of section 24(5), suggesting it would be responsible and simple for ICBC to remind plaintiffs of their duties under the provision, and that ICBC's silence "makes s. 24(5) seem and serve as a trap for the unwary." However, the judge concluded the authorities made it clear that there is no obligation on ICBC to inform plaintiffs of their statutory duties.

The statutory provision at issue

The central statutory provision was subsection 24(5) of the Insurance (Vehicle) Act, which provides that in an action against ICBC 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. The established case law confirms that no particular steps are prescribed and that what constitutes "all reasonable efforts" is a question of fact to be determined on the circumstances of each case.

The appeal and the Court's analysis

The British Columbia Court of Appeal, in reasons written by Justice Grauer and concurred in by Chief Justice Marchand and Justice Mayer, allowed the appeal. The appellants argued that although the trial judge stated the legal test correctly, he erred in law in applying it by failing to take context into account and by essentially requiring the posting of ads and posters to establish reasonableness, even though the law is clear that no particular step is required. The Court found that the trial judge committed an error of law by failing to undertake the holistic, case-specific assessment the law demands. Specifically, the trial judge assessed the appellants' own actions without placing them in the context of the police investigation, thereby bifurcating the analysis and creating "artificial constraints on what is meant to be a holistic assessment," the same problematic approach identified by the Court in Takhar v Insurance Corporation of British Columbia, 2024 BCCA 275 at paragraph 25. The Court emphasized two key points. First, the appellants were not required to take an action that, while possible, was "highly unlikely" to produce any result. Given that the police had deployed dogs, canvassed for cameras, conducted forensic examination, and interviewed witnesses — all without success — any additional steps by the appellants would almost certainly have been futile. The trial judge's assessment of the possible result of posting signs was based not on the evidence of the circumstances but on unsupported speculation. Even if persons in neighbouring apartment buildings existed who might have responded to an ad, it was, in the Court's words, "virtually inconceivable in the circumstances that they could have added anything about the identity of the fugitive beyond what was already known to the police." The Court agreed with the appellants that the trial judge's suggestion that the fugitive's family or roommate might have come forward amounted to "pure speculation." Second, given that a serious crime was involved beyond the mere fact of a hit-and-run, it was reasonable for the appellants to rely on the police to investigate it, rather than undertake what amounts to a criminal investigation on one's own, with the attendant personal risk. As Constable Gagné put it under cross-examination, "identifying the person would be the police's job; it is not necessarily the job of the occupants."

The ruling and outcome

The Court of Appeal unanimously allowed the appeal and set aside the order of the trial judge dismissing the appellants' actions against ICBC. The Court was satisfied that, in compliance with section 24(5) of the Act, all reasonable efforts had been made by the parties to ascertain the identity of the unknown driver, and the identity of that person is not ascertainable. The matter was remitted to the Supreme Court of British Columbia for assessment of the appellants' damages. No exact amount was determined or awarded at this stage, as the assessment of damages is to take place at the subsequent proceeding.