Apr 28, 2016

RIDING IN CARS WITH BOYS: ICBC DENIED LEAVE TO APPEAL TO SUPREME COURT OF CANADA FOR EXPANSIVE MVA RULING

Felix v. Insurance Corporation of British Columbia, 2014 BCSC 166 (CanLII)

On April 14, 2016, the Supreme Court of Canada declined to hear an appeal from the Insurance Corporation of British Columbia in relation to the 2015 decision of Felix v. Insurance Corporation of British Columbia 2014 BCSC 166, a personal injury case involving a car accident.

The plaintiff was at a soccer game with her boyfriend, who became intoxicated and argumentative towards the end of the game. The plaintiff decided that they should leave and proceeded to take her boyfriend home in the passenger seat while she drove. While on the highway, the boyfriend grabbed the wheel, causing the car to crash. The boyfriend was killed in the collision and the plaintiff was severely injured.

The plaintiff filed suit against the boyfriend’s estate for her injuries. Although ICBC was notified of the action, they did not participate. The plaintiff was awarded over $800,000 against the estate. The plaintiff sought to recover the judgement from the estate from ICBC on the basis that her boyfriend was considered an insured person who was using the vehicle and as a result ICBC is required to indemnify him (and his estate) for the losses that the plaintiff suffered.

Under Section 63 Insurance Motor Vehicle Act, RSBC 1996 c.231, an “insured” is a person who “uses” or “operates” a vehicle (with the consent of the owner), described in a vehicle owner’s certificate. Consequently, under section 64 ICBC is required to indemnify an “insured” person for any liability imposed on them by law for injury or death of another that arises from their “use” or “operation” of a vehicle described in the vehicle owners certificate. At trial, the question was whether ICBC was required to indemnify the deceased on the basis that he was covered by the provisions as an “insured” that was “using” the vehicle which caused the plaintiff’s injury.

Mr. Justice Saunders for the Supreme Court of British Columbia found that the act of grabbing the steering wheel didn’t constitute “operation” of a vehicle for the purposes of section 64 or 63.Mr. Justice Saunders did find that term “use” is broad enough to include the act of riding in the car as a passenger, as the deceased had been doing. Despite this, Mr. Justice Saunders, found in favour of ICBC, on the grounds that giving such a broad interpretation to the word that “use” of a vehicle under section 64 (which would require ICBC to indemnify the deceased with respect to the plaintiff’s action), would be inconsistent with other provisions of the Act, specifically section 66. Section 66 of the Act extends the indemnity to passengers in a vehicle who by operating a part of a vehicle described in an owners certificate cause injury to a person who is not an occupant of the vehicle. Mr. Justice Saunders concluded that to interpret the word “use” in section 64 with such a broad meaning as to include riding in a car as a passenger, would render the extension of the indemnity in section 66 redundant.

At the British Columbia Court of Appeal, Madam Justice Bennett held that the term “use” of a motor vehicle is broadly defined in the context of the legislative scheme. She also found riding in the plaintiff’s car as a passenger, constituted “use” for the purposes of section 63 and as a result the deceased is considered an “insured”. Madam Justice Bennett disagreed with the trial judge’s conclusion that the wording in section 66 precluded him from accepting this broad definition of use. Madam Justice Bennett held that section 66 would not be rendered redundant by this interpretation as section 66 extends indemnification to factually different scenarios; namely to persons who are not occupants of the vehicle. Section 66 encompasses actions which do not require consent of the owner, unlike section 63. The court found that the grabbing of the wheel by the deceased while he was “using” the car as a passenger was within the scope of section 63 and 64, and that usage was causally connected to the plaintiff’s injuries. Consequently Madam Justice Bennett held that ICBC was required to indemnify the estate of the deceased.

ICBC sought leave from the Supreme Court of Canada to appeal the decision and on Thursday April 14, 2016, the Supreme Court denied leave. The decision is support for the idea that scheme of the Insurance Motor Vehicle Act is to provide a universal compulsory insurance program and access to compensation for those who suffer losses from motor vehicle accident. A finding that interprets usage of a vehicle in a broad manner in order to protect wider range situations in which users and drivers of vehicles find themselves injured is in line with the legislation’s purpose.