In Moldovan v. Republic Western Insurance Company, the British Columbia Court of Appeal considered whether s.103 of Part 7 of the Insurance (Vehicle) Regulation, B.C. Regulation 447/83, is inapplicable to a foreign insurer. The court held that the provision applies to anyone who commences an action for Part 7 benefits, whether the insurer is out-of-province or not.
The provision in question provides that “No person shall commence an action in respect of benefits” under Part 7 unless the action is commenced within two years after the date of the accident for which the benefits are claimed or, where benefits have been paid, the date of the last such payment. The plaintiff, due to inadvertence on the part of his solicitors, failed to bring the claim within the two year period. The insurer refused benefits, relying on s.103, and the plaintiff sought to have the insurer added as a defendant in the action pursuant to R. 15(5)(a) of the Supreme Court Rules, which permits the court to add a person as a party when it would be “just and convenient.” The master of the Supreme Court rejected the plaintiff’s application because he failed to bring the action within the limitation provided by s.103. The chambers judge held that s.103 didn’t apply and ordered the insurer to be added as a defendant.
The Court of Appeal upheld the decision, although on different grounds. Newbury, J.A. rejected the plaintiff's argument that foreign insurers' reliance on the "Power of Attorney and Undertaking System," an interprovincial system of contracts between insurers that allows insurers to respond to claims in respect of extra-territorial accidents, operated outside of British Columbia's statutory vehicle insurance regime. Noting that s.103 is not phrased as an obligation of the insurer, nor as a contractual term that must be incorporated by agreement before it will operate, but rather as a regulation applying to "any person who commences an action," Newbury, J.A. reasoned that the provision's application was universal. While s.103 would therefore be available to the insurer in defence of the plaintiff’s claim, the court held that s.4(1)(d) of the Limitation Act effectively removes the limitation defence where the rule is invoked, and dismissed the appeal.
October 27, 2011
Link to Decision
Fidelia Ho
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Showing posts with label Motor Vehicle. Show all posts
Showing posts with label Motor Vehicle. Show all posts
Thursday, October 27, 2011
Thursday, September 22, 2011
Carter Brothers Ltd. v. The Registrar of Motor Vehicles for the Province of New Brunswick, 2011 NBCA 81
In this case the New Brunswick Court of Appeal determined that "boom trucks" qualify as "special mobile equipment" under s. 1 of the Motor Vehicle Act, R.S.N.B. 1973, c. M-17 (MVA) and s. 7(6) of its General Regulation 83-42. Robertson J.A., writing for the court, noted an apparent discrepancy between the definitions in the statutory provision and the regulation and held that the statutory definition must therefore prevail. If any doubt remained as to how to resolve the apparent inconsistency, Justice Robertson was prepared to invoke the residual presumption in favour of the taxpayer.
After applying for and obtaining class "M" registration plates for its boom trucks for almost twenty years, the appellant was informed by the Registrar of Motor Vehicles that it must instead obtain more expensive class "L" plates. Justice Robertson held that the Registrar's legal interpretation of "special mobile equipment", as a question of law, was owed no deference by the court. Finding that there was "no obvious correlation" between the definition in the MVA and its regulations, he concluded that the simplest approach to resolving the inconsistency was to determine if boom trucks meet the criteria set out in the statutory definition. If so, nothing in the regulations should be able to undermine that conclusion. The MVA specifically refers to "concrete mixers" and "ditch digging apparatus" in its definition of special mobile equipment and Justice Robertson found that boom trucks fall in the same general class as those vehicles. His conclusion was aided by the residual presumption in favour of the taxpayer, which "should not be lost in future cases where the Attorney General is called upon to defend the government’s interpretation of fiscal legislation."
September 22, 2011
Link to Decision
Marc Gibson & Daniel Lo
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After applying for and obtaining class "M" registration plates for its boom trucks for almost twenty years, the appellant was informed by the Registrar of Motor Vehicles that it must instead obtain more expensive class "L" plates. Justice Robertson held that the Registrar's legal interpretation of "special mobile equipment", as a question of law, was owed no deference by the court. Finding that there was "no obvious correlation" between the definition in the MVA and its regulations, he concluded that the simplest approach to resolving the inconsistency was to determine if boom trucks meet the criteria set out in the statutory definition. If so, nothing in the regulations should be able to undermine that conclusion. The MVA specifically refers to "concrete mixers" and "ditch digging apparatus" in its definition of special mobile equipment and Justice Robertson found that boom trucks fall in the same general class as those vehicles. His conclusion was aided by the residual presumption in favour of the taxpayer, which "should not be lost in future cases where the Attorney General is called upon to defend the government’s interpretation of fiscal legislation."
September 22, 2011
Link to Decision
Marc Gibson & Daniel Lo
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Tuesday, July 26, 2011
R. v. Goulet, 2011 ABCA 230
In this case, the Alberta Court of Appeal held that, in assessing whether the conduct of the accused gave rise to "endangerment" and therefore constituted a "serious personal injury offence" under the Criminal Code, the analysis focuses on the entire context in which the conduct occurred, and not only contextual factors relating to the conduct of the accused.
The respondent, while driving impaired, crashed into the complainant’s vehicle and seriously injured the complainant. At the time of the crash, many people were in the surrounding area and could have aided the injured complainant. The respondent fled the scene of the accident but was quickly apprehended by police. She was convicted of having left the scene of an accident and given a 12 month conditional sentence. Under s.752(a)(ii) of the Criminal Code, an indictable offence involving "conduct endangering or likely to endanger the life or safety of another person..." constitutes a "serious personal injury offence." Under s.742.1 of the Criminal Code, in light of amendments made in 2007, conditional sentences are not available for serious personal injury offences. Based on this statutory language, the Crown argued on appeal that the respondent was not eligible to receive a conditional sentence.
Reviewing the relevant caselaw, which revealed two conflicting streams of jurisprudence on the point, Justice Slatter held that when assessing the existence of endangerment arising from the conduct of the accused leaving the scene, it is relevant to look not only at the accused’s conduct but also at the entire context in which the conduct occurred. Here, there was a large number of other people at the scene to aid the injured driver, so there was no endangerment. The respondent's offence was, therefore, not a "serious personal injury offence," and the respondent was eligible to receive a conditional sentence.
July 26, 2011
Link to Decision
Sam Golder & Kai Sheffield
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The respondent, while driving impaired, crashed into the complainant’s vehicle and seriously injured the complainant. At the time of the crash, many people were in the surrounding area and could have aided the injured complainant. The respondent fled the scene of the accident but was quickly apprehended by police. She was convicted of having left the scene of an accident and given a 12 month conditional sentence. Under s.752(a)(ii) of the Criminal Code, an indictable offence involving "conduct endangering or likely to endanger the life or safety of another person..." constitutes a "serious personal injury offence." Under s.742.1 of the Criminal Code, in light of amendments made in 2007, conditional sentences are not available for serious personal injury offences. Based on this statutory language, the Crown argued on appeal that the respondent was not eligible to receive a conditional sentence.
Reviewing the relevant caselaw, which revealed two conflicting streams of jurisprudence on the point, Justice Slatter held that when assessing the existence of endangerment arising from the conduct of the accused leaving the scene, it is relevant to look not only at the accused’s conduct but also at the entire context in which the conduct occurred. Here, there was a large number of other people at the scene to aid the injured driver, so there was no endangerment. The respondent's offence was, therefore, not a "serious personal injury offence," and the respondent was eligible to receive a conditional sentence.
July 26, 2011
Link to Decision
Sam Golder & Kai Sheffield
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Wednesday, March 16, 2011
Hagen v. Insurance Corporation of British Columbia, 2011 BCCA 124
The British Columbia Court of Appeal considered the interpretation of the Motor Vehicle Act Regulations (“Regulations”) that impose limitations on a motorcyclist with a learners permit. The issue was whether the behaviour of the learner’s supervisor that is beyond the control and reasonable expectation of the learner and which is of short duration, places the learner in violation of the Regulations.
The plaintiff was injured while on his motorcycle. He had a learner’s license which required him to be under the “direct supervision” of a licensed motorcyclist. Learners are not permitted to carry a passenger so the licensed motorcyclist must follow in a car or on a motorcycle. Under the Regulations, “direct supervision” means that “the person supervising can, at all times, see the other person while the other person is operating the motorcycle.” The plaintiff and licensed motorcyclist agreed to a route before setting off. The supervisor followed the learner in a car. While driving, they became separated. The supervisor lost sight of the learner and assumed that he must have turned. The supervisor veered off the agreed upon route moments before the accident occurred.
The Insurance Corporation of British Columbia (“ICBC”) denied the plaintiff benefits under Part 7 of the Insurance (Vehicle) Regulations. It reasoned that the plaintiff was not authorized to operate his motorcycle at the moment of the accident because he was not under direct supervision as required by the Regulations. The plaintiff sued to obtain the benefits or alternatively for breach of contract. There was no dispute over the facts, and the case proceeded as a summary trial. The judge declared that the plaintiff was entitled to Part 7 benefits. The loss of contact was momentary and involuntary and strict liability could not have been contemplated by the drafters of the legislation.
The ICBC appealed. The court considered the relevant sections of the Regulations. It noted that s. 30.06(4) is directed entirely at the behaviour of the learner. The court reasoned that in the context, the subsections of 30.06 require the learner to take all reasonable steps to ensure that he or she is being supervised in compliance with the Regulations. Section 30.06(5), which articulates the direct supervision requirement, must be read as focusing on the behaviour for which the learner can control and be responsible. The court refused the ICBC’s interpretation which would “penalize a person regulated by the Act for unexpected actions by a third party”.
Under the proper interpretation of the Regulations, the learner’s reasonable steps involve arranging for supervision and refraining from driving when it is not reasonable for a learner to believe that he was in sight of the supervisor. In the circumstances, the court upheld the trial judge’s conclusion that the loss of contact was momentary and involuntary and the learner could not be faulted. The appeal was dismissed.
March 16, 2011
Link to Decision
Julia Wilkes
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The plaintiff was injured while on his motorcycle. He had a learner’s license which required him to be under the “direct supervision” of a licensed motorcyclist. Learners are not permitted to carry a passenger so the licensed motorcyclist must follow in a car or on a motorcycle. Under the Regulations, “direct supervision” means that “the person supervising can, at all times, see the other person while the other person is operating the motorcycle.” The plaintiff and licensed motorcyclist agreed to a route before setting off. The supervisor followed the learner in a car. While driving, they became separated. The supervisor lost sight of the learner and assumed that he must have turned. The supervisor veered off the agreed upon route moments before the accident occurred.
The Insurance Corporation of British Columbia (“ICBC”) denied the plaintiff benefits under Part 7 of the Insurance (Vehicle) Regulations. It reasoned that the plaintiff was not authorized to operate his motorcycle at the moment of the accident because he was not under direct supervision as required by the Regulations. The plaintiff sued to obtain the benefits or alternatively for breach of contract. There was no dispute over the facts, and the case proceeded as a summary trial. The judge declared that the plaintiff was entitled to Part 7 benefits. The loss of contact was momentary and involuntary and strict liability could not have been contemplated by the drafters of the legislation.
The ICBC appealed. The court considered the relevant sections of the Regulations. It noted that s. 30.06(4) is directed entirely at the behaviour of the learner. The court reasoned that in the context, the subsections of 30.06 require the learner to take all reasonable steps to ensure that he or she is being supervised in compliance with the Regulations. Section 30.06(5), which articulates the direct supervision requirement, must be read as focusing on the behaviour for which the learner can control and be responsible. The court refused the ICBC’s interpretation which would “penalize a person regulated by the Act for unexpected actions by a third party”.
Under the proper interpretation of the Regulations, the learner’s reasonable steps involve arranging for supervision and refraining from driving when it is not reasonable for a learner to believe that he was in sight of the supervisor. In the circumstances, the court upheld the trial judge’s conclusion that the loss of contact was momentary and involuntary and the learner could not be faulted. The appeal was dismissed.
March 16, 2011
Link to Decision
Julia Wilkes
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