“Unconstitutional” ICBC Expert Witness Rule Struck Down By BC Supreme Court

Source: Erik Magraken BC Injury and ICBC Claims Blog

Earlier this year BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions.  The rule changes were brought without notice to the profession, were retroactive and were drafted to save a primary litigant, ICBC, money at the cost of the substantive rights of individuals before the judiciary.

In April a legal challenge was launched arguing these changes were unconstitutional.

Today the Chief Justice of the BC Supreme Court ruled on challenge and declared that these changes were “of no force and effect” due to their unconstitutional nature.

Mr. Justice Hinkson provided the following reasons finding these changes were out of line:

[120]     I find that the effect of the impugned Rule is to change the substantive law of evidence that has guided this Court from its inception, and I find that this is not one of the exceptional cases referred to by Justice Lambert where the Rules may create new substantive law. Accordingly, I find that the Rule 11-8 Orders (and with it, the impugned Rule) are not authorized by the Act…

[164]     The impugned Rule does more than limit the court’s discretion; it eliminates it, and that is the petitioners’ complaint.

[165]     The arbitrary limit of three expert witnesses to address damages, unless there is agreement to more by the parties or expert witnesses are chosen by the court could result in the very unfairness discussed by McLachlin J. in Porto Seguro…

[172]     …the impugned Rule places the court in a role that it should not be placed in. Transferring the responsibility of ensuring that there is relevant evidence upon which to decide the issues in a personal injury case from the parties to the court does, in my view, intrude upon what has, to date, been the core function of the court: to decide a case fairly upon the evidence adduced by the parties…

[185]     Considering the totality of the submissions and the evidence before me, I find that the impugned Rule compromises and dilutes the role of the court, and encroaches upon a core area of the court’s jurisdiction to control its process…

[197]     The petition is allowed in part.

[198]     I declare that the Rule 11-8 Orders are, in part, contrary to s. 96 of the Constitution Act, 1867, and thus unconstitutional and of no force or effect. In the result, sub Rules 11-8 (3), (4), and (5) are set aside. In the result sub Rules 11-8(10) and (11) must also be set aside.

Reading between the lines of the judgment the Court suggests that a ‘soft’ expert witness cap may be possible provided the Court retains real discretion to allow parties to marshall all the evidence necessary to prove their case.   Such a rule could likely be crafted and receive the support of various stakeholders who access the Courts in such claims.

$70,000 Non-Pecuniary Assessment For Low Back Injury With Nerve Root Irritation

The guest post was written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.

In today’s case (Suc v. Skelton) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash caused a bulged disc in the Plaintiff’s low spine which contacted his nerve root at L5-S1.  His prognosis for recovery was poor.  The injury caused significant limitations in the types of activities the Plaintiff could participate in.  In assessing non-pecuniary damages at $70,000 Madam Justice Baker provided the following reasons:

[35]         Based on his assessment of Mr. Suc over time, Dr. Hershler was of the opinion that Mr. Suc is unlikely to return to a pain-free state in the future. He says that, due to the fact that over time Mr. Suc’s symptoms and physical findings are unchanged, he is of the opinion that Mr. Suc has sustained a permanent injury, and will remain symptomatic indefinitely.

[36]         Dr. Heran noted that Mr. Suc had improved since the accident. He noted that Mr. Suc did have persisting symptoms, and that he must avoid certain tasks and movements which would aggravate his condition. He was of the view that Mr. Suc would require assistance for heavier duties if his condition does not improve any further. Dr. Heran stated, “From a future perspective, he is definitely at increased risk for exacerbations or aggravations of site of persisting symptoms, notably in the lumbosacral level.”

[37]         I find on a balance of probabilities that Mr. Suc will remain symptomatic over his lifetime, and that his current level of function is contingent on Mr. Suc modifying his behaviors to avoid movements and tasks which have the potential to aggravate his symptoms…

44]         Mr. Suc was 37 at the time of the accident. His injuries are serious and have had a serious impact on his life. As a result of the accident, he suffers from ongoing pain in his back from a disc bulge that is contacting his nerve root. While his daily pain levels have improved, he has also restricted his movements so as not to aggravate his pain. He also experiences excruciating pain from time to time. His pain has affected his sleep and his mood.

[45]         Mr. Suc used to be a strong and healthy man, who could successfully take on physical tasks. He enjoyed and excelled in sports. It is unlikely his back pain will ever completely resolve, and he will not be able to resume his former level of activity. However, Mr. Suc is able to manage his day to day pain reasonably well. He is able to work full time. He can participate in some sporting activities, although not competitively or at the level he did before the accident.

[46]         Mr. Suc lost his job with RAS as a result of his injuries. This resulted in a period of financial insecurity for him and his young family, where they lost their house and had to move into their pastor’s home. Mr. Suc and his family have received generous support from their church, but it has been psychologically difficult for him to be unable to properly care for them. Mr. Suc has a new job which allows him to provide for his family, but this job is not ideal from the perspective of his family as it requires him to work weekends and evenings. He is no longer able to share responsibility with his wife for childcare and household responsibilities.

[47]         I find that an award of $70,000 is appropriate for non-pecuniary damages.

bc injury law, L5-S1 Disc Herniation, madam justice baker, nerve root irritation, Suc v. Skelton

“Little Weight” Given To ICBC Experts in Three Cases Released Today

The BC government is making more noise about Rule of Court reforms regarding expert opinion evidence in personal injury cases in an effort to save ICBC money.  Their not so subtle message is that Plaintiff’s hire too many experts to prove their claims.  If cases released by the BC Supreme Court today are any guide it is ICBC that is in need of reform when it comes to the practice of hiring physicians hoping to refute collision related injuries.

In three separate cases published today by the BC Supreme Court three separate judges found ICBC hired expert opinions deserved “little weight“.

In the first case (Francello v. Cupskey) the Plaintiff was injured in two collisions.  ICBC retained a physician who provided opinion evidence minimizing the Plaintiffs injuries in connection to the crash.  In finding this opinion deserved “little weight” Mr. Justice Burnyeat provided the following comments:

[124]     I am not prepared to find that the Opinion and the testimony of Dr. Bell is inadmissible as was requested by counsel for Ms. Fancello. However, I am prepared to give it very little weight and prefer the evidence in these regards provided by those who remain licensed, continue to see patients, remain up to date in their review of applicable literature, and who saw Ms. Fancello in a professional capacity. I also cannot conclude as did Dr. Bell that the falls being experienced by Ms. Fancello were “just an isolated incident” or that it would be appropriate to discount reports of dizziness.

In the second case released today (Dinnisen v. Lee) the Plaintiff was a pedestrian struck by a vehicle while in a marked crosswalk.  She suffered serious injuries including a fractured right collarbone, a fractured left wrist, and an injury to her brain.  In the course of litigation ICBC had her assessed by neurologist who provided opinions minimizing her injuries.  In giving “little weight” to this opinion Mr. Justice Funt provided the following reasons:

[84]         I have given little weight to Dr. Dost’s opinion for several reasons. First, Dr. Dost takes a primarily statistical approach based on medical literature rather than focusing on the plaintiff with her particular health history, medical imaging, and her symptoms…

[90]         Second, Dr. Dost’s clinical testing is suspect. Dr. Dost met with the plaintiff for 27 minutes in the morning of September 24, 2017 in order to conduct his assessment. During this time, Dr. Dost asked her a number of unchallenging questions as part of an intake questionnaire (e.g., height, time in hospital, work hours, recreational pursuits)…

[92]         I do not accept that even an experienced neurologist can observe and determine decreased processing speed except in obvious instances (e.g., slow to answer easy and readily understandable questions). Dr. Dost’s method is further suspect in that he did not test the plaintiff later in the day after she had been at work for at least several hours. In the plaintiff’s case, her cognitive fatigue occurred later in the day after several hours of work involving mental tasks…

[95]         Third, Dr. Dost failed to consider the possibility that the patient lost consciousness in the Accident…

[103]     Fourth, Dr. Dost testified that none of the other experts diagnosed the plaintiff as having suffered a moderate traumatic brain injury. A moderate traumatic brain injury may have affected the “effect size” in his statistical analysis. However, as may be seen below, Dr. Cameron opined that the plaintiff “suffered a complicated mild traumatic brain injury or moderate traumatic brain injury”…

[105]     Fifth, as quoted above, Dr. Dost in his June 13, 2018 report states:

I would recommend a psychiatric assessment and I would like the report provided for a review.

[106]     The defendant obtained a psychiatric assessment from Dr. P. Janke but the defendant did not give Dr. Dost a copy of Dr. Janke’s report. Dr. Janke was not called as a witness at trial nor was his report tendered as expert opinion. Dr. Janke’s report was given to the plaintiff and the plaintiff gave it to her medical experts. Under cross-examination by defence counsel, Dr. Cameron referred to Dr. Janke’s report.

[107]     The fact that Dr. Dost recommended a psychiatric assessment of the plaintiff and asked to see the relevant report makes his report provisional…

[110]     It is unhelpful to the fact finding process that a party holds back from one of its own experts an opinion of another of its experts where the areas of expertise overlap, especially when the opinion has been provided to the other party.

[111]     As seen above, in his June 13, 2018 report, Dr. Dost states:

I would expect that if these issues are based on psychiatric issues, then treatment of her psychiatric problem will lead to improvement. [Emphasis added.]

[112]     Dr. Dost’s opinion was provisional. In his October 15, 2018 addendum, his opinion remained unchanged. By this time, he had received the October 26, 2017 independent medical examination report prepared by Dr. D.H. Smith, a psychiatrist. In his October 26, 2017 report, Dr. Smith agrees with Dr. Cameron that in terms of outcome, a mild complicated traumatic brain injury is more like a moderate traumatic brain injury.

[113]     In sum, I have given little weight to Dr. Dost’s report, addendum, and evidence. I find that he did not undertake a sufficiently thorough analysis of the plaintiff’s symptoms and surrounding circumstances in order to provide sufficient reliability of opinion evidence to the Court. He was also somewhat hampered by not having been given a copy of Dr. Janke’s report.

In the final case released today (Miller v. Resurreccion) the Plaintiff was injured in a 2011 collision that the Defendant admitted fault for.  ICBC again retained an expert who minimized the connection of the Plaintiff’s injuries to the collision.  In finding aspects of his opinion deserved “little weight” Madam Justice Baker provided the following comments:

In his second report he questioned whether the flare up of symptoms experienced by Ms. Miller in 2016 could be related to the accident. He did note that migraines fluctuate and can worsen when psychological issues develop.

[81]         Dr. Woolfenden’s opinions were based in part on his understanding that Ms. Miller had a longstanding history of pre-accident headaches, including severe headaches, and neck pain. Under cross examination, Dr. Woolfenden agreed that his understanding of Ms. Miller’s pre-accident pain and headaches arose primarily from the records of Ms. Gibson and Dr. Miles. Both Ms. Gibson and Dr. Miles testified at trial, and their evidence did not support the understanding Dr. Woolfenden gained from their notes. As such, I place little weight on Dr. Woolfenden’s conclusions on the possible origin of Ms. Miller’s headaches.

Advocacy in the Guise of Opinion, bc injury law, Dinnessen v. Lee, Fancello v. Cupskey, madam justice baker, Miller v. Resurreccion, Mr. Justice Bunryeat, Mr. Justice Funt

Police Officer in Pursuit Found Fully at Fault for Intersection Collision

Reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, finding a police officer fully at fault for an intersection collision with another motorist.

In today’s case (Burroughs v. Chiasson) the Plaintiff was an RCMP officer involved in a crash in 2013.  At the time, while driving a fully marked RCMP vehicle, she “pursued a truck with an uninsured trailer by attempting to turn left, on a red light, onto Young Road from the westbound curb lane on First Avenue. While making this turn, she collided with a minivan driven by the defendant, Jennifer Chiasson. Ms. Chiasson was driving eastbound on First Avenue.”.

The RCMP officer sued the other motorist claiming damages from the collision.  The claim was dismissed with the Court finding that the Plaintiff entered the intersection when it was dangerous to do so in circumstances with no particular urgency.  In dismissing the claim and finding the officer fully at fault for the crash Mr. Justice Basran provided the following reasons:

[46]         As a trained and experienced police officer, Ms. Burroughs knew that there was a significant risk in turning left on a red light from a curb lane in front of a bus that blocked her view of oncoming traffic. She also knew that expired insurance on a trailer did not pose an imminent threat or danger. There was no need for immediate apprehension of the trailer.

[47]         Ms. Burroughs’ position that the offence was “arrestable” and that this explanation justified her actions demonstrates that she failed to weigh the risk of the required maneuver in relation to the risk to the public of letting the trailer proceed. Ms. Burroughs should have abandoned her pursuit and followed up at the trailer owner’s address instead of pursuing this vehicle by making a dangerous maneuver. In my view, the risk to the public from turning left significantly outweighed the risk to the public posed by expired insurance on a trailer. As in Watkins, there was a safer option, but Ms. Burroughs failed to consider it.

[48]         After deciding to pursue the trailer, Ms. Burroughs should have followed her training and cleared the lanes one at a time by ensuring that she could see, and be seen, by all vehicles in, and approaching, the intersection. She knew that the bus created a blind spot and obstructed her view of oncoming traffic. She therefore should have addressed this by stopping and exercising considerable caution prior to crossing in front of the bus. Her poor visibility of oncoming traffic is a factor that increased the potential harm to the public: Regulations, s. 4(6)(b).

[49]         Both Ms. Burroughs and Ms. Chiasson testified that there was no time to react prior to the accident. By the time they perceived each other, the accident was imminent.

[50]         Ms. Sawatzky had a clear and close view of the events leading to the accident. Ms. Burroughs did not stop in front of the bus. She kept moving in front of it and then accelerated past it causing the accident with Ms. Chiasson’s vehicle.

[51]         No witnesses corroborated Ms. Burroughs’s recollection that the siren was on prior to the U-turn. I do not accept that Ms. Burroughs turned on her siren when she executed the U-turn on First Avenue, 20 to 30 seconds prior to the accident. Ms. Burroughs may have thought she activated the siren well before the accident, but no one, including Ms. Sawatzky and Ms. Marchuk, recalls hearing a siren until mere moments before impact. I find it is more likely that while making the left turn maneuver, Ms. Burroughs knew she could not see past the bus, but was nevertheless determined to pursue the trailer, and activated her siren immediately before accelerating in front of the bus. I accept Ms. Chiasson’s evidence that she heard the siren shortly before the collision and that she had no time to react to it.

[52]         Had Ms. Burroughs stopped in front of the bus and waited for the southbound light on Young Road to turn green, the accident would not have happened. If Ms. Burroughs had done this, it is possible that she may have lost sight of the trailer, but as noted above, immediate apprehension of the uninsured trailer was not required.

[53]         In my view, Ms. Burroughs contravened s. 177 of the MVA by not activating her siren before entering the intersection of First Avenue and Young Road.

[54]         Ms. Chiasson could not see Ms. Burroughs’ car and did not hear a siren until shortly before the collision. Ms. Chiasson had no visual and virtually no audible cue to warn her of the presence of Ms. Burroughs’ vehicle. She had a green light and entered the intersection as she was entitled to do. She could not have avoided the accident and is therefore not liable for it.

[55]         I find that Ms. Burroughs’ actions were the sole cause of the accident and she is 100% liable for it.

bc injury law, Burroughs v. Chiasson, intersection collisions, Mr. Justice Basran, Police Pursuit Cases

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

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

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