09 Apr Accepting ICBC’s Formal Offer Constitutes a Binding Agreement

The majority of personal injury lawsuits settle.  During settlement negotiations, ICBC will often deliver a formal offer to the settle to the Plaintiff.  This formal offer is usually ICBC’s “bottom line” and often contains a clause that the Plaintiff is entitled to his legal “costs and disbursements” incurred prior to the delivery of the formal offer and the Defendant is entitled to its “costs and disbursements” from the date of such delivery onwards.

In the case of Tomas v. Mackie, 2015 BCSC 364, the Plaintiff accepted ICBC’s formal offer but then argued that this formal offer contained an implicit clause that the Plaintiff had a reasonable time from the date of its delivery to consider the offer.  As a result, the Plaintiff was entitled to “costs and disbursements” to the end of such reasonable time and the Defendant was entitled to “costs and disbursements” after the expiry of such reasonable time.

Registrar Nielsen disagreed with the Plaintiff. He confirmed that the terms of a settlement agreement constitute a binding agreement between the parties and that the Defendant was entitled to its costs from the date of delivery of the formal offer.  However, Register Nielsen also confirmed that the “costs and disbursements” claimed must be necessarily and properly incurred.

If you have commenced a personal injury action and receive a formal offer from ICBC, it is important that you review the terms of the offer carefully with your lawyer.  In addition to the dollar amount being offered, the terms relating to “costs and disbursements” need to be carefully reviewed before the formal offer is accepted or a counter offer made. 

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