Canada: A Passenger Who Grabs The Steering Wheel Is Involved In The "Use" Or "Operation" Of The Vehicle Such That The Loss Is Covered By The Auto Policy.

Felix v. Insurance Corporation of British Columbia, 2015 BCCA 394, per Bennett J., Saunders J. and Stromberg-Stein J.

I. FACTS AND ISSUES

The plaintiff ("Felix") was driving her car with her intoxicated boyfriend ("Hearne") in the passenger seat. Hearne repeatedly grabbed the steering wheel of the car while the car was in motion. The third time this occurred, Felix lost control of the vehicle. Hearne was killed and Felix sustained serious injuries. Felix sued Hearne's estate and obtained judgment against it in the sum of $791,950 plus costs. Felix had notified the no-fault insurer ICBC of this action, but ICBC chose not to participate. Felix then brought an action to recover its judgment from ICBC. 

At trial, the court was asked to determine firstly whether Hearne was an "insured", and secondly whether his use of the vehicle caused Felix's injuries. The trial judge looked at sections 63 and 64 of the [Insurance (Vehicle)] Revised Regulation (1984), B.C. Reg. 447/83 [the "Regulations"], which read as follows:

63 In this Part, "insured" means ...

(b) an individual who, with the consent of the owner or while a member of the owner's household, uses or operates the vehicle described in the owner's certificate,

64 Subject to section 67, the corporation shall indemnify an insured for liability imposed on the insured by law for injury or death of another or loss or damage to property of another that

(a) arises out of the use or operation by the insured of a vehicle described in an owner's certificate ...

The trial judge found first that the definition of the word "use" in the context of sections 63 and 64 was broad enough to "cover the passive use of a vehicle by a passenger as a means of conveyance". However, the trial judge also felt bound to consider how these sections interact with section 66 of the Regulations. Section 66 specifically indemnifies a passenger "who, by operating any part of the vehicle while the vehicle is being operated by an insured, causes (a) injury or death to a person who is not an occupant of the vehicle...".

The trial judge concluded that sections 63 and 64 could not be as broad as he initially thought since section 66 would in that case be rendered redundant. 

Felix appealed this decision, arguing that the trial judge incorrectly applied the principles of statutory interpretation, overlooked the possibility that section 66 could be read harmoniously with sections 63 and 64, and incorrectly concluded that Hearne was not "using" the vehicle. Although ICBC approved of the trial court's ultimate decision, it took issue with the conclusion that (a) passive riding constituted "use" and (b) that Hearne's deliberate steering wheel grabbing was inseparable from his use of the vehicle as a passenger.  

II. HELD: Appeal allowed; the use of the vehicle caused the Plaintiff's injuries  

1. On appeal, the Court of Appeal for British Columbia (the "Court") allowed the appeal and found that the passenger was a "user" of the vehicle pursuant to Section 63(b), and the passenger's "use" of the vehicle caused the plaintiff's injuries. 

2. The Court asked first whether it can be said that a passenger "uses" a car as that word is defined in the Insurance Act. Secondly, it considered whether there was "some nexus or causal relationship between Felix's injuries and the use of her vehicle by Hearne" (para 46).

3. In relation to the first question, the Court considered the history of the relevant legislative provisions. It noted that coverage originally extended to every person who operates or drives with consent, but that this was later narrowed in 1975 to a licensed driver who operates or drives with consent. The pre-cursor to section 66 was then added in 1983. 

(a) In 1984, the legislature again amended the coverage provisions re-expanding them to include an individual who, with consent, operates the vehicle. In 2001 this was further expanded to include an individual who "uses or operates" the vehicle. The Court also considered the scheme of the Act, noting that the intention behind it was to ensure universal compulsory vehicle insurance. 

4. The Court further added that determining the legal definition of the word "use" requires a context and fact specific inquiry. The Court referred to the Supreme Court of Canada's earlier analysis in Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405 [Amos], where the Court found that the legislature's inclusion of the words "use and ownership", in addition to "operation" expanded the type of circumstances where coverage would apply. 

(a) The first part of the two-part test from Amos requires that the "accident result from the ordinary and well-known activities to which automobiles are put" (para 37). The Court concluded on this point at para 41 that 

...the concept of "use" when it refers to use of a motor vehicle is broadly defined. In my view, being a passenger in a motor vehicle is an "ordinary and well-known" use of a vehicle. I therefore agree with the trial judge that a passenger in a motor vehicle "uses" the motor vehicle when he or she is being transported from A to B. Use by a passenger may include other factual contexts, but it is only necessary to address facts presented in this case.

(b) The Court disagreed with the trial judge's conclusion that section 66 somehow negated this finding. Rather, the Court concluded that since section 66 was introduced before the legislature broadened the definition to "use and operation" the introduction of the word "use" in sections 63 and 64 was clearly intended to address situations outside of the scope of section 66. 

(c) The second part of the Amos test requires that the court find a nexus or causal relationship between the injuries suffered and the "use, ownership or operation" of the vehicle. The Court adopted the reasoning formulated by the Supreme Court of Canada in Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46 (CanLII) and reworked it to apply in this situation, noting in para 48 that 

"[f]or coverage to exist, there must be an unbroken chain of causation linking the conduct of the user as a user of a motor vehicle to the injuries in respect of which the claim is made." 

(d) The Court concluded, at para 50, that in this case, 

[w]hile a passenger, or user, in a moving automobile, Mr. Hearne grabbed the steering wheel causing the accident that led to Ms. Felix's injuries. It matters not for these purposes that he did not intend to take control of the car. He intentionally (and negligently) grabbed the wheel while he was "using" the vehicle. As a result, Ms. Felix suffered injury. There is, in my view, a clear unbroken chain of causation from his negligent act to her injuries. I would not disagree with the trial judge on this point.

5. The Court accordingly allowed the appeal and found that the ICBC was liable for indemnification of Hearne's Estate for the judgment obtained by Felix. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.