ICBC will often breach a motorist even though the police do not charge the motorist criminally with impaired driving
The number one reason ICBC breaches a motorist of his/her contract of insurance is if there is even the slightest inference of impaired driving and a corresponding motor vehicle accident. Indeed, ICBC will often breach a motorist even though the police do not charge the motorist criminally with impaired driving but provides the motorist with an administrative penalty. Equally, ICBC will continue to breach the motorist of his/her contract of insurance even when the impaired driving charge is later dismissed. In other words, even if the police or the Court does not feel the impairment charge can be upheld, ICBC does not usually back down. They often continue to decline insurance coverage and force the motorist to take legal action to overturn the ICBC decision of no coverage.
In recent times, the government expanded the use of non-criminal charges under the “Roadside Suspension” program as part of their beefed-up anti-drinking and driving policy. Basically, the police can issue a Roadside Suspension on breathalyzer readings at .05 which is well below what would be needed to make a motorist impaired by reason of alcohol consumption. The police officer can even issue a Roadside Suspension without administering a roadside screening device correctly. The police officer has become the judge and jury.
ICBC then turns around and says you are in breach of your contract of insurance because you were impaired by reason of alcohol yet getting a Roadside Suspension is not equivalent to being legally impaired while driving to the point it likely caused or contributed to the accident. Indeed, the cutoff for getting a Roadside Suspension is below the legal limit that trained alcohol impairment experts will testify that an individual need to be considered impaired. That is, most experts will testify that the blood-alcohol level must be at least .10 (not .05) to be impaired to the point of the alcohol causing or contributing to an accident.
Although the policing surrounding cannabis use while operating a motor vehicle is evolving rapidly with the legalization in Canada and the future is unknown, you can expect ICBC to take a hard line if a police officer finds you had consumed above the legal limit of cannabis before operating a motor vehicle. Similar positions on breaching motorist as with alcohol are expected.
The case law establishes that ICBC bears the burden to prove, on a balance of probabilities, that at the time of the accident, the motorist was under the influence of intoxicating alcohol or drugs to such an extent as to be incapable of the proper control of his/her vehicle. Further, the case law states that the breathalyzer test, even when the reading is over the legal limit, is not necessarily enough to prove that someone is incapable of proper control of his vehicle. Other evidence about driving patterns leading up to the accident, intoxication at the accident scene, consumption of alcohol and/or drugs evidence, etc. is required to prove impairment.
Despite the above noted law, ICBC often ignores it. When they find out about the Roadside Suspension, and they will as they get copies of all police reports, it is almost guaranteed the motorist will be breached of his/her contract of insurance. ICBC then throws the onus onto the motorist to prove insurance coverage because short of a judicial ruling, ICBC’s word on insurance coverage stands despite the evidence and the law.
One point is if you try to hide the existence of a police charge from ICBC they will turn around and breach you because of a false statement. At some point, ICBC will receive the police report which will note the charge. Therefore, if asked about the impaired driving, you should fully disclose that fact.
If you do start a lawsuit against ICBC for insurance coverage it will be very difficult for ICBC to prove impairment caused or contributed to the accident because the evidence necessary for ICBC to win on the point is generally gone. All that is left is a police officer saying he found the motorist to be above the legal limits for consumption of drugs and/or alcohol while driving but again, that doesn’t necessarily establish impairment that caused or contributed to an accident. Of course, if you are well above the legal limit at the time of the accident then ICBC will win the case because the higher your readings the more obvious it is that alcohol consumption influenced the accident.
If you go the direction of a lawsuit to establish insurance coverage, you are in for a battle as ICBC will vigorously defend their breach position. Your legal bill may reach the tens of thousands of dollars so be ready for a lot of legal expense and a full trial.
In summary, even though the law requires ICBC to prove that alcohol and/or drug consumption caused or contributed to an accident, ICBC ignores the law and in almost all situations will hold you in breach of your contract of insurance. Therefore, you are at the mercy of the police officer who may be overaggressive in providing an administrative penalty to you. The implication could be far greater than simply having to pay a fine for the impaired driving. You could be without insurance coverage for the accident and be faced with a bill from ICBC for all the money they pay out under the claim.