Glaring Fog Lamps

glaring fog lampsOne of the most common complaints I hear that is not about a moving violation concerns the use or misuse of lights on vehicles. Here is one of them: “What is really starting to annoy myself and many others is people driving with their fog lights on during clear nights or even during the day. Is this not an infraction? These lamps are often unreasonably bright.”

I agree with this reader, I also find many fog lamps unreasonably bright, even during the daytime. What’s to be done about it? The following information may help you to use these lights effectively and avoid causing problems for others.

First, let’s be sure we are all on the same page. Fog lamps are identified by the SAE F marking on the lens, or a B above the circle with the E in it on European lamps. In B.C. you are allowed two fog lamps that emit either white or amber light. They must be mounted on the front of the vehicle, below the headlamps, but not more than 30 cm below. When you switch them on, the parking lamps, tail lamps, licence plate lamp and, if required, clearance lamps must also illuminate.

Fog lamps may be used in place of headlamps if atmospheric conditions make the use of headlamps disadvantageous. Otherwise, fog lamps may be used at any time of the day or night and in fact are used as the daytime running lamps on some vehicles.

Vehicle lighting at the time of a vehicle’s manufacture is regulated by Transport Canada. Specifically, Technical Standards Document 108, which details construction, performance and location of lamps and reflectors.

Here in British Columbia, lighting use and maintenance is regulated in Division 4 of the Motor Vehicle Act Regulations. Essentially, it requires that the lights and reflectors that a vehicle was manufactured with must still be there and function as originally intended. Dimming of headlights and the times that vehicle lights must be used are also set out here.

I suspect that the unreasonable brightness comes from improper aim. Fog lamps must be adjusted and aimed so that, at a distance of 8 m from the lamp, the centre of the beam is at least 10 cm below the height of the fog lamp. Oddly enough, there is no tolerance specified as too low but anything higher than horizontal is too high.

There are other reasons that could contribute to problems. The use of LED replacement bulbs in housings designed for filament bulbs is one of them, along with using higher wattage filament bulbs than is intended. The Ministry of Transportation and Infrastructure publishes an inspection and approval protocol for vehicle lighting to help inspection facilities decide what to pass.

It is a good guide to follow if you are considering making modifications to your vehicle’s lighting system.

Scott Marshall from Young Drivers of Canada has some good tips on using your vehicle’s lights and fog lights when the weather is bad in this video:

BC Court of Appeal Upholds Special Costs Award Against Disability Insurer Despite No Litigation Misconduct

Reasons for judgment were published today by the BC Court of Appeal finding that trial judges do have authority to award special costs against litigants even in circumstances where no litigation misconduct occurred.

In today’s case (Tanious v. The Empire Life Insurance Company) the Plaintiff was insured with the Defendant.  She became disabled and sought long term disability benefits but the Defendant ‘rejected her claim’.  The Plaintiff successfully sued and was awarded damages along with an order of special costs.

The Defendant appealed arguing the judge was wrong in awarding special costs absent litigation misconduct.  The BC Court of Appeal disagreed and found that in “exceptional cases” such awards could be justified.  In upholding the award the court provided the following reasons:

[69]         To summarize, in British Columbia the general rule is that party and party costs are awarded to a successful litigant in the absence of litigation misconduct.  In ordinary litigation, this partial indemnity strikes a fair and proper balance of the costs burden to be borne by the winning and losing parties and enhances the policy objectives of predictability and consistency.  However, in exceptional cases special costs may be awarded for non-punitive purposes in the interests of justice to provide a higher degree of indemnification to the successful party.  When deciding whether to award special costs, a judge should exercise his or her discretion based on established principles and consider the nature and conduct of the litigation, bearing in mind the purposes and objectives of the costs regime, any salient policy considerations and the relevant facts as established by the evidence…

[77]         I am not persuaded that the judge erred in law or principle in exercising his discretion to award special costs in the circumstances of this case.  Nor, in my view, is the award so clearly wrong as to amount to an injustice.  The judge concluded that disability insurance claims are a uniquely challenging, complex and costly type of contractual dispute litigation and that Ms. Tanious experienced the challenges, complexities and costs inherent in such claims to an extent that special costs were warranted in the interests of justice.  There was an evidentiary basis for his conclusion, which, in my view, was not unreasonable.  Bearing in mind the privileged position he occupied and the high degree of appellate deference that applies, I would not interfere with the judge’s principled determination.  

[78]         I do not accept Empire Life’s submission that the judge compensated Ms. Tanious twice for the emotional harm its conduct caused by making both an award for mental distress damages and a special costs award.  The special costs award responded to the impact of the unique characteristics of the disability insurance contract in the litigation, not the emotional consequences of its breach.  Nor do I accept Empire Life’s submission that the judge erred by holding, in substance, that a disability insurance policy confers a contractual right to full indemnity costs.  On the contrary, he repeatedly stated that it did not. 

[79]         I am satisfied that, despite some ambiguity, when the reasons are read as a whole it is reasonably apparent that the judge exercised his discretion to award special costs based on his assessment of the interests of justice in all the circumstances of the case, not based on a contractual obligation.  His references to “contractual obligations” and the need to realize the “full benefit of the contract” must be read within the context of the entire decision. Had the judge relied on a contractual analysis in making the special costs award, I would agree with Empire Life that he erred in principle.  However, it seems to me that the “driving consideration” for the judge was the injustice he saw in permitting the unique challenges, complexities and costs inherent in disability insurance litigation to render an impoverished and disabled litigant’s pursuit of subsistence-level insurance benefits wholly impractical. 

[80]         In other words, while he did not express it in precisely these terms, at bottom, the judge’s concern with fulfilling the “intention of the insurance coverage” was the need he perceived to provide meaningful access to justice to Ms. Tanious in the unusual circumstances in which she found herself.  Importantly, that need arose in the context of a unique and distinct category of contractual dispute litigation, namely, a claim for subsistence-level disability insurance benefits, and not in the context of an “ordinary” insurance or personal harm claim.

[81]         As I have noted, the Supreme Court of Canada recently emphasized the importance of ensuring access to justice as a policy objective.  Long embedded within the law of costs, our understanding of the consequences of failing to achieve this objective has grown significantly in the last two decades, as the Report highlights.  In seeking to achieve justice in this case, the judge considered the merits of the case, weighed the consequences of a special costs award for both parties and decided it would be contrary to the interests of justice to ask Ms. Tanious (or her “low bono” counsel, Ms. Hayman) to bear the financial burden associated with pursuit of her claim: see Carter.  I see no error in his overall approach, which, in my view, was based on principle, not sympathy, and, given its narrow parameters, did not amount to judicial overreach.

[82]         As discussed, where reasons of principle and policy do not apply the law may evolve without resiling from a general rule by recognising policy-based exceptions: see Fidler; Hollander.  In my view, the law of costs has evolved to the point that a judge may consider a litigant’s challenging personal and financial circumstances, including the availability and nature of counsel’s services, in a disability insurance claim of this sort where there is an evidentiary basis for doing so and, if the interests of justice warrant it, may depart from ordinary costs rules and award special costs in the absence of reprehensible conduct.  The factors in question are linked to the exceptional nature of such a claim and, therefore, the usual costs principle favouring partial indemnity in ordinary litigation may not be applicable.  On the other hand, consideration of these factors in such cases enhances the policy objective of ensuring access to justice for disadvantaged litigants by, for example, encouraging more lawyers to act on deserving but otherwise unremunerative disability insurance claims.

[83]         Moreover, in my view, the policy objectives of predictability and consistency are not compromised by this incremental development in the law of costs, at least not significantly.  Given the unique nature of the particular contractual relationship in question and the related dispute, unlike many opposing litigants, disability insurers are likely to be familiar with an insured’s circumstances and the associated implications of denying benefits and to consider them when assessing their costs exposure.  Further, the prospect of facing a special costs award if a denial of benefits turns out to be unjustified may well encourage disability insurers to scrutinize claims extremely carefully at every stage of litigation, which, in turn, may encourage settlement and avoid the sort of cursory response seen here that falls short of bad faith but negatively impacts access to justice for a disadvantaged litigant.  On the other hand, if, on close and continuous examination, a defence appears strong and meritorious, the possible price of losing seems unlikely to keep a well-resourced disability insurer from the courtroom door: see Sidorksky.

[84]         In the final analysis, in my view, in balancing the parties’ interests in this unique litigation the judge did not err by concluding that it was just for the unsuccessful institutional defendant to indemnify the impoverished and disabled claimant fully for the reasonable costs of pursuing her claim for subsistence-level disability insurance benefits and, therefore, awarding special costs.

bc injury law, LTD, special costs, Tanious v. The Empire Life Insurance Company

Speeding is Best Predictor of Crash Risk

speed demonThe University of Waterloo has identified speed as the best predictor of crashes after analyzing data from onboard devices in vehicles. The research examined four aggressive driving behaviours, speeding, hard braking, hard acceleration and hard cornering for possible links and the likelihood of crashes. Of the four, only speed was statistically significant as a strong predictor of crashes.

From the article’s abstract:

Usage-based insurance schemes provide new opportunities for insurers to accurately price and manage risk. These schemes have the potential to better identify risky drivers which not only allows insurance compa- nies to better price their products but it allows drivers to modify their behaviour to make roads safer and driving more efficient. However, for Usage-based insurance products, we need to better understand how driver behaviours influence the risk of a crash or an insurance claim. In this ar- ticle, we present our analysis of automotive telematics data from over 28 million trips. We use a case control methodology to study the rela- tionship between crash drivers and crash-free drivers and introduce an innovative method for determining control (crash-free) drivers. We fit a logistic regression model to our data and found that speeding was the most important driver behaviour linking driver behaviour to crash risk.

Link:

Cst. Tim Schewe (Ret.) runs DriveSmartBC, a community web site about traffic safety in British Columbia. For 25 years he was an officer with the Royal Canadian Mounted Police, including five years on general duty, 20 in traffic and 10 as a collision analyst responsible of conducting technical investigations of collisions. He retired from policing in 2006 but continues to be active in traffic safety through the DriveSmartBC web site, teaching seminars and contributing content to newspapers and web sites.

www.drivesmartbc.ca

 

In a car collision, the blame always go somewhere — here’s how your insurance company figures out where

Read more

Vehicle Owner Found Liable For Crash After Household Member Took Vehicle Without Permission

Source: Erik Magraken BC Injury and ICBC Claims Blog

Reasons for judgment were published last week with an extensive discussion of the principles of registered owner vicarious liability for BC collisions.

In the recent case (Bowe v. Bowe) the Plaintiff was injured as a passenger involved in a collision.  At the time of the crash the Plaintiff took his stepfathers car keys without permission.  They lived in the same household.  The Plaintiff contacted his cousin, who lived in a separate household, and collectively they took the vehicle.  In the course of the evening  the two boys drove around for several hours before the Accident.  Both took turns driving but at the time of the crash the cousin was behind the wheel.

The Plaintiff suffered serious injuries including a moderate brain injury.  A jury found the driver negligent and the plaintiff contributorily negligent.  A question arose as to whether the registered owner bears any liability in these circumstances.

Section 86 of BC’s Motor Vehicle Act establishes vicarious liability for vehicle owners when their vehicle is being driven by a household member or by anyone who acquired the vehicle with the owners consent.  The latter test was not applicable on these facts.  The court was asked whether the household member rule was triggered in these circumstances.  The applicable provision of the MVA reads as follows:

Responsibility of owner or lessee in certain cases

86(1)    In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who

(a)        is living with, and as a member of the family of, the owner

Mr. Justice Voith found that, even though the cousin was not a household member at the time of the crash this provision was triggered and the registered owner was vicariously liable for the collision.  In reaching this conclusion the Court provided the following reasons:

[65]         It is important in this case not to be swayed by the fact that the Plaintiff took Mr. Boltz’s car keys without his permission.  This lack of consent, on the part of Mr. Boltz, is irrelevant, on a principled basis, to the intention and operation of s. 86(1)(a).  The provision is, instead, engaged in the first instance on account of the family relationship that exists between Mr. Boltz and the Plaintiff.  The Plaintiff’s own fault and contributory negligence, in taking the keys to the vehicle and in the events that gave rise to his injuries, are addressed by the jury’s specific findings on that issue.

[66]         Furthermore, the application of s. 86(1)(a) is not influenced by whether the injured party in a motor vehicle accident is an innocent and unknown third party who is struck by a vehicle or a passenger in that vehicle.  Under s. 86(1)(a), the same result necessarily ensues whether Dale struck an innocent person crossing the street or whether he injured the Plaintiff who was sitting beside him at the time of the Accident.  If the Defendants are correct, an innocent third party would have no recourse against Mr. Boltz.  I raise these matters because the result of this application must be consonant with the language of s. 86(1)(a) and with the object of that provision in the various circumstances that I have described.

[67]         The purview of s. 86(1)(a) clearly extends beyond those cases where a family member of the owner of the vehicle is involved in a motor vehicle accident while “driving” the vehicle.  It extends to cases where the family member is “operating” the vehicle.  How the words “operate” or “operating” are interpreted is a function of the meaning of those words and, to the extent different meanings are reasonably possible, a consideration of what meaning best achieves the intended purpose of the provision.

[68]         “Operate” in the MVA is, in other provisions, defined as having “the care or control” of a motor vehicle.  A somewhat extended definition of “operate”, found in the IVR, has earlier been considered in the context of s. 86.  That definition “includes” instances where an individual is in the “care, custody or control” of the vehicle.  The word “includes” in the IVR contemplates an even broader definition.  Furthermore, the specific words “care, custody or control” operate disjunctively.

[69]         In Hudson, the Court considered that the common sense meaning of “operate” extended to the “use” of the vehicle: see also Grey at paras. 9 and 10 and Barsaloux at para. 26.

[70]         In Morrison, providing access to the keys to a vehicle, albeit in the context of s. 86(1)(b), was associated with providing “the required degree of exclusivity of control”.

[71]         In this case, over the course of the evening, the Plaintiff and Dale drove Mr. Boltz’s vehicle and were passengers at different times.  When they changed roles, one would “drive” and the other would not.  This narrow set of activities only addresses the question of who was “driving” at different times.

[72]         When the Plaintiff obtained Mr. Boltz’s car keys, he initially sat in the driver seat and he held the car keys in his hand.  At that point, though he was not “driving”, the vehicle was in his “care, custody or control”.  I do not consider that that would change when he gave the keys to Dale.

[73]         To be specific, if the Plaintiff no longer held the keys he would likely no longer overtly have “control” of the vehicle.  He would, however, still have “care or custody” of the vehicle.  It would be open to him to ask for the return of the keys.  It would be open to him to require that they return to the Plaintiff’s home and that they return Mr. Boltz’s vehicle.

[74]         I posit an example that arises in a slightly different context but one that mirrors, on a principled basis, the circumstances of this case.  If a father gives his son his vehicle keys and his son, while on a trip, allows a friend to drive, while he sits in the passenger seat, can it be said that the son no longer has “care” or “custody” of his father’s vehicle?  Can it be said that he is not “using” the vehicle?  Based on the common sense meaning of these words, and on the authorities I have referred to, I do not consider that this is so.  To determine otherwise would be to make the words “drive” or “operate” virtually synonymous in circumstances where it is clear that the two words are both intended to, and do, have different meanings.

[75]         These conclusions are further informed by the intended remedial purpose of s. 86(1).  It is to be recalled that the “only policy reasons underlying s. 86(1) to be considered are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners”: Barreiro at para. 28.

[76]         Having regard to the foregoing considerations, I am satisfied the Plaintiff was, at the time of the Accident, “operating” Mr. Boltz’s vehicle notwithstanding the fact that he was a passenger in the vehicle.

[77]         This conclusion recognizes and gives effect to each of the words “drive” and “operate”.  It is consistent with the meaning of the word “operate” in the MVA and the IVR––a related enactment.  It is consistent with the object and remedial purposes of s. 86(1).  Still further it is consistent with the relevant authorities.

[78]         Based on this conclusion, and on the deeming provision in s. 86(1), Mr. Boltz is vicariously liable for the Accident.  There is no need to consider whether the circumstances of this case would establish vicarious liability at common law: Morrison at para. 23.

[79]         The Plaintiff is to have the cost of this application.

bc injury law, Bowe v. Bowe, Mr. Justice Voith, section 86 BC Motor VEhicle Act, section 86(1) motor vehicle act, section 86(1)(a) motor vehicle act, vicarious liability

Hurricane Dorian: Advice and information from Insurance Bureau of Canada

Hurricane Dorian: Advice and information from Insurance Bureau of Canada

HALIFAX, Sept. 9, 2019 /CNW/ – In the aftermath of Hurricane Dorian, Insurance Bureau of Canada (IBC) is reaching out with tips and advice for those who have been affected.

“We know is that there has been significant damage across the region, and a lot of families have had their lives disrupted.  When you are able to call, your insurer is ready to hear the details of your claim,” said Amanda Dean, Vice-President, Atlantic, IBC.

What insurance covers
Most car, home and business insurance policies cover damage caused by a hurricane or tropical storm. Your insurance representative is at the ready to clarify the details of your policies.

The claims process
If you have been affected by Hurricane Dorian, when it is safe to do so, take the following steps:

  • Assess and document the damage. Taking photos can be helpful.
  • Call your insurance representative and/or company.
  • List all damaged or destroyed items.
  • If possible, assemble proofs of purchase, photos, receipts and warranties. Keep damaged items unless they pose a health hazard.
  • If you have to move out of your home because of insured damage, check with your insurance representative about whether your policy includes additional living expenses coverage, which may cover your costs if you have to move into a hotel/motel.

Next steps

  • Once you have reported a loss, you will be assigned a claims adjuster. It may take some time given the number of people affected by Dorian, but you will be contacted.
  • The claims adjuster will investigate the circumstances of the loss, examine the documents you provide and explain the process. Take notes during these conversations and don’t be afraid to ask questions.

Resources
Anyone with questions should contact their insurance representative or, for general information, contact IBC’s Consumer Information Centre at 1-844-2ask-IBC.

Additional resources
IBC.ca – severe weather
IBC.ca – Preparing for severe weather

About Insurance Bureau of Canada

Insurance Bureau of Canada (IBC) is the national industry association representing Canada’s private home, auto and business insurers. Its member companies make up 90% of the property and casualty (P&C) insurance market in Canada. For more than 50 years, IBC has worked with governments across the country to help make affordable home, auto and business insurance available for all Canadians. IBC supports the vision of consumers and governments trusting, valuing and supporting the private P&C insurance industry. It champions key issues and helps educate consumers on how best to protect their homes, cars, businesses and properties.

P&C insurance touches the lives of nearly every Canadian and plays a critical role in keeping businesses safe and the Canadian economy strong. It employs more than 128,000 Canadians, pays $9.4 billion in taxes and has a total premium base of $59.6 billion.

For media releases and more information, visit IBC’s Media Centre at www.ibc.ca. Follow IBC on Twitter @InsuranceBureau and @IBC_Atlantic or like us on Facebook. If you have a question about home, auto or business insurance, contact IBC’s Consumer Information Centre at 1-844-2ask-IBC.

If you require more information, IBC spokespeople are available to discuss the details in this media release.

SOURCE Insurance Bureau of Canada

www.ibc.ca

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