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If you negotiate your ICBC claim without a lawyer, is it binding?

Do I really need a lawyer to negotiate my ICBC claim for me? Potential clients ask this question all the time. The short answer is ‘no’. There is no requirement to have a lawyer represent you. However, you should keep in mind that ICBC is not obligated to negotiate with you on “equal footing”. Quite the opposite, ICBC can settle your claim even where there is clearly unequal bargaining power, as is usually the case between a multi-billion dollar corporation and an injured individual. Once you settle, it is very hard to get the agreement set aside.

Recent Example of Binding ICBC Negotiation 

To take a recent example, in McIsaac v. McIsaac, 2010 BCSC 691 the plaintiff, a 76 year-old woman named Lois McIsaac, went to ICBC’s office with her brother-in-law, discussed her claim with the adjuster, and accepted an offer of $22,000. Apparently she received legal advice afterwards, and was informed that ICBC had undervalued her injuries. She sued to set aside the agreement, but was unsuccessful.

The judge found that “the plaintiff relied on and trusted the ICBC adjuster and their bargaining power [was] unequal”. That was not sufficient, however, to set aside the settlement agreement. The judge emphasized that Mrs. McIsaac “could have consulted with a lawyer before accepting the offer, but for reasons of her own chose not to.” The judge ultimately concluded that ICBC was entirely within their rights to make a low-ball offer:

[25] I might consider the amount settled by the parties in this case to be somewhat low, but taking into account all of the outlined factors related earlier, I cannot say the bargain struck was grossly unfair and unconscionable. In order to maintain consistency and predictability in commercial transactions, public policy requires court enforcement of contracts not found to be unconscionable.

(written by Troy McLelan)

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