When “Not Now” Still Means “Maybe Later” For Private Property and ICBC Hit and Run Requirements

A stolen truck blows a stop sign at 4 a.m., the driver vanishes into the dark, and ICBC says the injured victims didn’t take “all reasonable steps” to find who hit them. We dig into the Court of Appeal’s reversal and why the phrase reasonable must mean proportionate to the facts, not an endless checklist of posters, door knocks, and guesswork. When police have already run dog tracks, canvassed cameras, interviewed witnesses, and done forensics, what more would actually move the needle—and when does “try harder” become obviously futile?

From there, we shift to a second legal fault line: Aboriginal title and private property in the Cowichan Tribes litigation. A corporate landowner pushes to reopen the case, arguing they should be heard on how title findings could affect fee simple land. The judge draws a crucial line: Cowichan Tribes didn’t say private property would never be affected; they said the effect wasn’t being decided in this case. That single nuance recasts public assurances like “not at stake” into “not yet,” raising hard questions about notice, delay, and what thousands of owners reasonably knew—or didn’t know—over the years.

Together, these stories show how outcomes hinge on precise language and practical context. For crash victims, the ruling tempers ICBC’s strict stance and acknowledges the real value of a thorough police investigation. For property owners, it underscores that future proceedings may still test the security of fee simple, and that timely, clear notice matters. If you care about no‑fault insurance, hit‑and‑run claims, Aboriginal title, or the reliability of political promises, this conversation offers clarity, caution, and concrete takeaways. Listen, share with someone who needs to hear it, and subscribe to get our next breakdown.

Follow this link for a transcript of the show and links to the cases discussed. 

Transcript

Setting The Legal Context

Michael Mulligan 0:27

Well, uh, this is somebody who at least had the opportunity to go to court because the accident itself occurred in 2019 prior to eliminating the ability to do that. Now in the world of ICBC no fault, what you might get would be a function of both what you paid for in terms of insurance, right? Um and uh you're in many cases uh don't have uh the opportunity to challenge what ICBC uh is doing to you in court. But this case is from a time when that was possible, and it is still important to know about, um, because the Insurance Motor Vehicle Act has provisions to deal with um hit and runs. And in this uh case, uh I should say those provisions, however, require uh that where you're making a claim against ICBC for an unknown driver, uh, that is a requirement that the person making the claim show that they had taken all reasonable efforts to ascertain the identity of the unknown driver in a hit and run. Uh and so that can take a variety of forms depending on the factual background, uh, which is important to this decision ultimately over the Court of Appeal. But the fact pattern here involved uh a uh a couple of people driving at four o'clock in the morning. They went through a green light, uh, truck sli went through a stop sign, or sorry, stop sign, right a stop sign, stolen truck, crashed into them, described as smashing into their vehicle, uh, and then a person got out wearing dark clothing with a hoodie on and fled the scene on foot, disappearing into darkness, the driver of the stolen truck. Uh the truck had been reported stolen two days earlier by the owner of it. Uh, there was no basis to sue the owner of the vehicle, nothing they had done uh negligent about that. It was stolen and they reported it to the police. And so, as a result of this serious accident, the police show up, not surprisingly. Um, and given the seriousness of the accident, the fact that the vehicle was stolen, um, after they uh dealing with the uh medical conditions of the uh two people from the car, they're taken away uh to the hospital. Uh the police start conducting an investigation to try to figure out who stole the car and who crashed into it and ran off. And they did a variety of things. They he uh brought out a police dog and they tried to follow the track, and that didn't work. They then canvassed the area for video cameras. That's common, like you know, doorbell cameras, business security cameras, this kind of thing. They didn't find any that could have captured it. Uh they canvassed for witnesses, they did manage to speak to three witnesses who had, like, I guess showed up at the scene. Uh one guy was described as a person who had been playing video games who heard screeching, came out, and then he'd heard the crash but didn't see what happened, the video game player. Um, and then they even went so far as to have a forensic examination done on the stolen truck, including searching it for DNA, fingerprints, or anything else that might help identify the driver. None of that uh provided any useful information, and uh within a couple of days the police closed their investigation. There was just nothing more they could do to try to locate this hooded person uh who ran off into the darkness. There were just no leads to go on. And so the people who had been badly hurt when they got uh I guess T-boned by this stolen truck, um uh, I guess eventually spoke to a lawyer about it, and the advice is advice included advice, no doubt, about this obligation to take all reasonable efforts to try and identify the driver. Now, this was about a year after the fact, and some of the cases involving all reasonable efforts involve uh a person going out and pasting up signs, like looking for witnesses, as one of the things that's been pointed to. And so I guess they decided to do that. They went and pasted up signs asking if anyone witnessed what went on. They they produced one response, that being from the video game player who had already been interviewed by the police, who just heard the screeching and came out and saw the the aftermath. So that not surprisingly didn't go anywhere. And so ICBC refuses to pay uh because their argument is, well, you didn't take all reasonable steps, you took no steps. You were just hospitalized and you didn't do anything for a year. And they said, Well, you can't just uh offload this on the police, you have to take the reasonable steps to try to locate the person. And so they denied the claim. Uh and the thing first of all proceeded to trial where ICBC took that position saying, sorry, you haven't taken all reasonable steps, you just uh sat in your hospital bed uh not try to track this person down, you didn't do anything for a year. Uh and the judge, hearing the original trial, uh agreed with ICBC uh and said, Well, it's unfortunate, but uh judge said they're adding to the chorus of other judges who have talked about the unfairness of these provisions, but uh denied the claim. Uh and that then led to an appeal to the Court of Appeal and the decision which just came out. And the Court of Appeal, happily, in in my judgment, given just the unfairness of what was described there, uh concluded that the trial judge had made a mistake in agreeing with ICBC's position that uh these uh people who got uh slammed into hadn't taken all reasonable steps. Uh and what the Court of Appeal focused on uh is that all reasonable steps, and it has to remember all is the language in the uh legislation, right? And so, for example, if you just like spoke to witnesses but didn't put up signs, that's gonna lead to, well, hold on, couldn't you have done one more thing? Signs? How many did you put up? Yeah, the legislation doesn't even say what it is, it just says all reasonable steps. And so, you know, you you would on your own have to be out there canvassing for cameras and maybe trying to get a private dog track, I'm not sure. Uh, but the Court of Appeal pointed out that the trial judge was correct, that you can't merely report the accident to the police and then say, well, I've offloaded my duty to them. Uh and furthermore, it wasn't enough here. The people also promptly reported what happened to ICBC, and ICBC didn't tell them anything about their obligation to do anything. Um that only came up when they eventually, that is to say, ICBC eventually denied their claim. Uh and so the Court of Appeal, the way they approached it is even though that language is all reasonable steps, the Court of Appeal concluded that when assessing what all reasonable steps mean, uh it requires an assessment of like all of the circumstances about what happened, uh, and some assessment as to whether any other steps here would have been anything but obviously futile, right? Um, you know, here, uh did they go and put signs up as soon as they got released from the hospital? Well, no, they didn't. But in fairness, the police had already canvased for witnesses, spoke to three people that heard you, could not locate anyone else. What else would have happened, right? Um and so what else were they to have done? And so they looked at the fact that not only was it reported to the police, but the police did this relatively thorough investigation with dog tracks and gift canvassing for videos and you know, DNA searches and fingerprint examinations. And sort of, well, what else are these people supposed to do? It's sort of like a yes, if you try to come up with a list of things that people have done in other cases, which is sort of how it was approached originally, looking at, well, other people have put up signs. Did you put up signs? Well, no. Well, then I guess it's not all steps, is it? Right? Yeah. You could have put up signs. The other people put up seven, you only put up six. Surely you could have done more, right? What about the other corner? So the Court of Appeal found that, you know, when assessing what all reasonable steps mean, you do have to take into account all of the circumstances, including, for example, the thoroughness of the police investigation. This wasn't just a case where somebody, you know, phones up ICBC and says, hey, I've got a fender bender in the parking lot, I need a file number. You know, here's a picture of my dented door or something where police are doing, frankly, nothing, right, other than giving you a number and accepting your photograph. This is where they attended. They did a full-throated investigation, they spoke to witnesses, they did all that stuff. And so in that circumstance, uh the failure to take any other steps that one could think of to accomplish all uh didn't invalidate uh their claim. And so the net result from the Court of Appeal is that they've remitted the matter uh back to the BC Supreme Court to assess their damages, which sounds like they're pretty serious. They were hospitalized for some period of time. Now, of course, what you what you may get is going to be subject to what insurance did you buy? Did you buy the uh you know hit and run insurance when you purchased your no fault insurance? If not, you may be out of luck, right? Uh and uh as well when you have decisions, because that's how that now works, is sort of well, did you buy that, did you take off that option and pay for it? No, well, that's that then. Um and and that's why for no fault, you have results like, you know, car thief smashes into you, right? And car thief uh gets uh you know treatment paid for by ACBC, no fault after all. And you might be out of luck, you know, for the uh your car being smashed up or inaccessible for months as it's being fixed because you didn't buy that option. It's kind of up to you to buy your own first party insurance now. And if you didn't do that too bad. And if you don't like the decision made, your option is to go to the civil resolution tribunal, which of course are a bunch of people who are on short-term contracts employed by the government, and so best of luck to you there. Um as I ask the latest of the Court of Appeal, and that's why when you're involved in an accident, at least depending on the circumstances, if you can't identify who the driver was, all reasonable efforts are required. So if it's something you could do to try to track the person down, you best do it, or you could get denied uh on that basis as well.

Adam Stirling 10:24

What's happening there?

Parsing “Not At Stake” Versus “Not Yet”

Michael Mulligan 10:26

This is really interesting, and and it also uh connects up with what you've been covering today in terms of like exact comments made by Premier Eve with respect to things like what the exactly is meant. Uh and here's why here I'll give you the basis of this, and then there's some key elements to what people should be aware of. So what what this is, is this was this is in the context of a private landowner that was impacted uh by the decision in Richmond with respect to the couch and tribes decision in terms of what impact it could have on their private property there. Uh and the it's a corporate landowner there, and they they are applying to reopen the trial and to be added as a party uh in order to be able to argue about uh whether the decision as it relates to private property um should be uh further considered. Um and the application was made in terms of uh sort of an extension of time to uh or uh application to to do that at this time, uh, and it's opposed by Cowichan tribes. Now the uh they're opposing the application generally, that is to say, Cowichan Tribes is opposing the application to reopen the trial to allow the private landowner to make submissions. Uh and uh the uh property owner is arguing that uh when they're assessing how long they waited to apply to or reopen things, the only time that should be considered is the date from the date of the decision to the date the application was made. Cowichan Tribes is saying, no, no, no. Uh this is long delayed. If you wanted to do this, you should have done this way back years ago as part of this litigation. Now, the history of that is this. Early on in that Cowichin Tribes litigation, there was an application made back in 2017 uh to another judge of the BC Supreme Court asking uh that there be an order that notice be provided. This is an application by the province, that notice should be provided to all privately uh private landowners so that they can decide whether they wanted to intervene in the case. And that application by the province was denied. Uh and so it meant that there wasn't notice sent out to all the private landowners so they could determine if they wanted to uh participate. Now, here's how it here's why here's where the precise language becomes very important and relates to some of the comments made most recently. On this, this is a this hearing was a hearing about whether the private landowner should have to provide documents to Cowichan tribes uh that Cowichan tribes would want to try to say, well, hey, you knew more about this earlier on, and so you should have applied earlier if you wanted to be a party to all this. In response to that, the private landowner said, Well, hold on a minute. That's an abusive process. You, Cowichan tribes, uh took the positions that private property owners uh would not be impacted by what was being sought. Now, how can you take some different position? Yeah. Now here's what the judge says about that. I find that the property owner's submission that the plaintiff said the declaration sought in this trial would not impact private property owners misstates the position the plaintiffs mentioned maintained throughout the proceedings. So the judge says that's wrong. That's not the position that Cowichan Tribes took, that this would not impact private property owners. And so what's going on here? And that's why parsing it is so important. What the judge says is that in the hearing before the other judge, the plaintiff asserted they were not seeking a declaration of invalidity or defectiveness with respect to the fee simple interests of private landowners, not claiming that they were entitled to possession of such land as against the private owners, referencing the paragraph. The plaintiff said this application is left for another day, and only if necessary, the consequences of a declaration of aboriginal title on land held by private own by private landowners in paragraph 15. And so Cowichan Tribes did not take the position that uh granting them uh aboriginal title would not invalidate private property ownership. What their position was, according to the judge, is that well, that's just for another day. They are not making that application to invalidate uh pro or invalidate or find private property ownerships to be defective at this trial.

Adam Stirling 14:55

Yet.

Private Owners, Notice, And Delay

Michael Mulligan 14:56

What they are saying yet. What they are saying is we just want Aboriginal title, that will be dealt with if necessary, in a future trial.

Adam Stirling 15:04

Bingo.

Why Precise Language Matters

Michael Mulligan 15:05

Uh and at that future trial, they're saying, well, that's when private property owners can come and make submissions about how their private property ownership should not be invalidated. Yes. But that's not these proceedings, that's the next proceedings. And that's why some of the comments that you played uh from the Premier with respect to the the more recent announcement about uh recognition of Aboriginal title in Vancouver, uh the if you listen carefully to what the premier said, he speaks about in this court case and in this decision, yeah, those things are not at stake. That's probably true, but only if you parse that very finely. And so when you hear the language that your private property is not at stake in this decision, and when the judge finds that yes, that is the consistent position that Cowichan tribes took, and that's what the judge finds, they found that Cowichan tribes submissions throughout the whole proceeding was not that private property was not at stake or that it could not be invalidated uh as a result of the decision. It's just that that would be the next case. And so that is the basis upon which the judge who made the Cowichan Tribes decision found that it was not an abusive process now for Cowage and Tribes to resist the private landowner or resist the private landowner's attempt to reopen the trial so they could participate in it, because they had not said that it would not have it would not impact private property. They just said it wouldn't impact private property right now, exactly in this decision. That's for another day. And so as a result of that, the trial judge has ordered the private property owner to provide Cowichan tribes with this long list of documents so that Cowichan tribes could argue that, hey, you know, if uh, for example, they one of the things on the list here is like any other documents that the province sent to the property owner regarding these proceedings over a 10-year period. And so what they want to argue as well, you know, you were told something about this. Uh you should have realized that Cowichan Tribes was not saying private property wasn't impacted. They were just saying it wasn't impacted right now. In this case, that's for another day as necessary. And so on that basis, uh, you should not be allowed to come on now and try to make new submissions about your property, the impact it had. Too bad. Uh we should be assessing the uh delay in applying to do this from back in whenever, rejecting the argument that hey, this is an abusive process because you said clearly this wouldn't impact private property. So that's the really, really fine distinction. And it's important to listen carefully to exactly what Premier EB is saying when he speaks about in this court case and in this decision, uh, because that's exactly what this application is talking about, and that's how uh the judge who made that decision is uh uh approaching it. Not an abusive process, because they never said uh it wouldn't mean that your property rights would be invalidated, just that that would be decided later. Uh and so that's the uh latest sort of the BC Supreme Court on that Cowage and Tribes case that's still bubbling away. Um, and uh that is, I think, just very, very important insight from the trial judge uh explaining exactly what it was that Cowitch and Tribes had to say throughout those all those proceedings. Uh and so when you hear sort of generalized comments about we weren't asking for private property, the full subversion of that would be yet. Yeah, but we can in future might exactly correct. That's exactly it. And so the private property owner would want to say, look, you know, maybe we will have another trial about whether you take our property away or whether our property rights have been invalidated or are found to be defective. But, you know, for example, maybe they have other some other submission to make about the broader issue, you know, the uh uh uh Aboriginal title ought to apply at all or in their particular place or the history of their property ownership or whatever it might be. Um, and they didn't have that opportunity during the trial. And so uh because they weren't given notice, because the court concluded that they shouldn't uh there shouldn't be notice to all of these private property owners. And the other interesting thing about it, of course, this is one property owner, right, who's bringing this application has been ordered to turn over all these potential documents to the uh Cowichan tribe so they can resist the application to reopen. But of course, even if it turns out there was something that you know was mailed to them in 2014 that should have alerted them to the fact that yes, you you may be impacted in this in the next hearing, um, what does that say about all the other private property owners? Exactly. Even if this particular property owner got something in the mail or you know had looked something up or had found something out that should have alerted them to, yeah, you could be in jeopardy down the road, this could be very important to you if that's eventually the basis. If the judge says, no, I'm not reopening it because look, you know, you had something about this in a letter that was sent to you in 2015 or something, what about everyone else? What about the other thousands of people? How does that affect them? And so, really, how this thing plays out does bring into sharp relief that decision about should there have been proper former formal notice provided to all those people uh at an earlier date, and it also provides just a really important lens when you're hearing now comments which are probably true in a in a strict sense, like what the premier is saying now about in this context, in this case, and in this decision, and comments being made by Calithan tribes. Uh, you need to just remember what they're saying may be literally precisely true, uh, but it doesn't provide the whole picture. Uh and that's why this decision is so important because it lays bare exactly what was said and why this was approached in the way it was, uh, right from the uh trial judge herself.

Adam Stirling 21:06

Michael Mulligan, thank you so much as always for the benefit of your knowledge and insight in these and other matters. Legally speaking, during the second half of our second hour, every Thursday, it's been a pleasure. Thank you so much. It's always great to be here. All right, we'll talk to you next time. It's Michael Mulligan. We'll take a quick break. Who is next?