Category: Uninsured Motorist Claims

Sick Leave Benefits Not Deductible In Uninsured Motorist Claims

In Jordan v. Lowe, the Plaintiff was injured in a motor vehicle collision where the at-fault party was uninsured. The Plaintiff was successful at trial, and then sought to collect on his Judgment from ICBC. ICBC, not a party to the original litigation, applied to be included in the litigation for the purposes of determining the issue with respect to the deductibility of sick leave benefits. ICBC’S lawyer argued that the amount that the Plaintiff received for sick benefits should be deducted from the overall Judgment, to which the Plaintiff would not agree. The Court rejected ICBC’S lawyer’s submissions, holding that the sick leave benefits in question were not deductible as they did not have an element of “insurance” to them.


[20]         ICBC suggests the amendment to the Regulation, the addition of the words “compensation similar to benefits” to the definition of an insured claim, signalled the legislature’s intention to expand the definition.  I agree that must necessarily be so.  ICBC further suggests the expansion brought into the definition of an insured claim benefits that are not paid pursuant to insurance and the definition no longer necessarily imports an element of insurance.  With respect to the able submissions of counsel, I cannot agree.


[21]         When it enacted the most recent amendments to the Regulation, the legislature must be taken to have been aware of the judgment of the Court of Appeal in Lopez.  The conclusion in Lopez that the definition necessarily imports an element of insurance was founded upon the presence of the subheading to Regulation 106(1), “Exclusion of other insured loss”, and to the fact that the Regulation itself describes what are considered to be “insured claims”.  While the legislature has expanded the definition of what constitutes compensation or a benefit, it has not removed or varied the subheading of the Regulation in question and has not excluded from ICBC’s liability anything other than “insured claims”.


[22]         There was some discussion in Lopez with respect to what constitutes a “benefit” under the applicable section.  The amendment to the Regulation addresses that discussion and, in my view, may be applicable in some circumstances where there is some doubt with respect to what compensation in the nature of insurance is deductible.  It does not, however, remove or vary the requirement described in Lopez that the compensation must have an element of insurance to it.


[23]         For reasons set out in Loeppky, which I adopt and follow, I find payment of sick leave benefits to police officers employed by the City of Vancouver Police Department pursuant to their collective agreement do not have about them an element of insurance.  They are clearly benefits or compensation similar to benefits, but that alone does not suffice to cause them to fall within s. 106 of the Regulation.  ICBC is not entitled to deduct them from its liability to satisfy the plaintiff in relation to his claim against the designated defendant, Mr. Lowe.

Court Of Appeal Discusses Purpose Of Uninsured Motorist Provisions

If you are injured in a motor vehicle accident in British Columbia, and the other motorist has no insurance, you can still make a claim for damages pursuant to Section 20 of the Insurance (Vehicle) ActThe accident, however, must occur on a “highway” in British Columbia. Although the legislative definition of “highway” is quite broad, there do exist some circumstances where an accident involving an uninsured motorist can occur on a “non-highway”.


In Shapiro v. Dailey, the British Columbia Court of Appeal discussed the purpose of the uninsured motorist provisions of the Insurance (Vehicle) Act.


[15]         Section 20, in comparison, provides a scheme of compensation for persons injured by an uninsured motorist. A claimant who seeks to recover from ICBC under this provision is limited to compensation of $200,000, inclusive of costs, disbursements and interest: Insurance (Vehicle) Regulations, B.C. Reg. 447/83, s. 105(1). Sections 20(6) and (7) (as they existed between October 1, 1997 and May 31, 2007) authorize ICBC to intervene in an action in the name of the uninsured motorist and take any steps on behalf of, and in the name of, the uninsured motorist that he or she might have taken in the action …


[18]         I do not agree. In my view s. 20(6) speaks to the obligations of claimants before they can compel ICBC to compensate them under this section. Specifically, s. 20(6) requires a claimant to notify ICBC where a defendant has defaulted on his obligations (by failing to appear to the action after being served, consenting to a judgment against him, or failing to take a necessary step in the action that would permit a claimant to take default proceedings) before it can demand compensation from ICBC under this provision. The purpose of the section is to give ICBC 30 days following notice of the defendant’s default in which to intervene in order to rectify the defendant’s failure or action, and thereby protect its interests. If ICBC fails to intervene within that period, the claimant may then enforce payment under this section.


[19]         As I read the provisions, whether or not ICBC intervenes in an action pursuant to s. 20, it has 30 days from notice of a defendant’s default before it can be compelled to compensate a plaintiff on a judgment. Section 20(6) does not limit ICBC to 30 days in which to intervene in an action. The 30-day period refers to the period of time after notice of a defendant’s default in which ICBC can intervene, if it so chooses, before it can be compelled to make payment to the plaintiff. Nowhere does the Act specify when ICBC can or must intervene. In short, these provisions address the issue of when a plaintiff can compel payment from ICBC upon the default of a defendant. The policy behind them is to give ICBC time to intervene in the action before it may be compelled to compensate a plaintiff under this provision.


[26]      As Ms. Shapiro acknowledged, s. 20 is a complete code. Each party is required to comply with its obligations under that section in order to exercise their corresponding rights. Having found that ICBC has complied with its obligations under the section, in my view there can be no claim that it is nonetheless estopped from exercising its corresponding rights under the provision.


[27]         In the result, I am of the view that ss. 20(6) and (7) of the Act do not preclude ICBC from appearing to an action under those provisions after it has previously intervened in the action at trial under s. 21 of the Act. Accordingly, I would dismiss the application.

Plaintiff’s Claim Against Uninsured Motorist Dismissed For Not Occurring On “Highway”

In Pierre v Miller, the lawyer for ICBC sought a Court declaration that the accident occurred on a “forest service road”, and not a “highway”. The Court agreed, with the result being that the Plaintiff’s claim was dismissed.


[3]             In order for ICBC to be liable to pay a claim under the provisions of the s. 20 of the IMV Act, the claim must arise out of the use or operation of a motor vehicle on a highway in British Columbia.  This follows from the definition of “claimant” and “uninsured motorist” in s. 20 of the IMV Act.  “Highway” is defined in the IMV Act as meaning a highway as defined in the Motor Vehicle Act, R.S.B.C. 1996. c. 318 (“MVA”).  The MVA definition of highway is:


“highway” includes

(a) every highway within the meaning of the Transportation Act,

(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and

(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,


but does not include an industrial road;


[4]             The MVA also defines “industrial road” as follows:


“industrial road” means industrial road as defined in the Industrial Roads Act, and includes a forest service road as defined in the Forest Act and land designated as a development road under section 8 (1) of the Petroleum and Natural Gas Act;


[5]             The definition of an industrial road in the Industrial Roads Act, R.S.B.C. 1996, c. 189 is not applicable in this case but the Forest Act, R.S.B.C. 1996, c. 157 definition of forest service road which is part of the definition of an industrial road in the MVA is in issue.  The Forest Act defines a “forest service road” as follows:


“forest service road” means a road on Crown land that

(a) is declared a forest service road under section 115 (5),

(b) is constructed or maintained by the minister under section 121,

(c) was a forest service road under this definition as it was immediately before the coming into force of this paragraph, or

(d) meets prescribed requirements;


[6]             The motor vehicle accident in this case occurred on a road known and marked as the Finlay Forest Service Road.  The applicant ICBC argues that the Finlay Forest Service Road falls within the Forest Act definition because it is declared to be a forest service road and because it was constructed or maintained by the Minister of Forests.  The respondent plaintiff argues that the Finlay Forest Service Road is a highway by way of public expenditure to which s. 42 of the Transportation Act, S.B.C. 2004, c. 44 applies and also because it is used by the general public for the passage of vehicles.  Alternatively the plaintiff argues that if the Finlay Forest Service Road is a forest service road it does not satisfy the definition under the IMV Act because it is a Community Use Forest Service Road rather than an Industrial Use Forest Service Road, it is not primarily for the transportation of natural resources or machinery materials or personal and it is not maintained by the Ministry of Forests and Range.


[7]             Another statutory provision of interest although not directly helpful in characterizing the Finlay Forest Service Road is s. 56 of the Transportation Act which enables the Lieutenant Governor and Council, with the consent of the Minister of Transportation and Highways and Minister of Forests and Range to order that a forest service road cease to be a forest service road and become an arterial highway or a rural highway.  There is no evidence that this has occurred in this case.


[14]      Although the Finlay Forest Services Road falls within the definition of highway in s. 42 of the Transportation Act by virtue of the expenditure of public funds, that is of no benefit to the plaintiff because it adds nothing to the MVA definition, which includes every highway within the meaning of the Transportation Act, but excludes an industrial road, including a forest service road.


[15]      I conclude that the Finlay Forest Service Road falls within category (b) in the Forest Act definition of forest service road and is therefore not a highway within the meaning of s. 20 of the IMV Act.  It follows that the defendant is not an uninsured motorist within the meaning of that section.  ICBC is entitled to the declarations it seeks and to costs.