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AUTOMOBILE INSURANCE - Accident benefits - Definitions

Tuesday, February 12, 2019 @ 8:46 AM  

Lexis Advance® Quicklaw®
Appeal by the insurer from a decision dismissing its summary trial application to dismiss the respondent’s action for damages for personal injuries sustained when an unidentified vehicle struck him while on the sandbar. The appellant argued that the application judge erred in concluding that the kilometre-wide sandbar appearing seasonally in the Fraser River was a highway within the meaning of s. 1.1 of the Insurance (Vehicle) Act. The public drove on the sandbar for the purposes of fishing and camping. The judge accepted the respondent’s argument that the sandbar was a public way because vehicles traversed it to access fishing areas. The judge found the definition of “highway” under the Transportation Act sufficiently broad to include areas attracting little Ministry attention, such as the sandbar.

HELD: Appeal allowed. The judge erred in law in interpreting the relevant statutory provisions. The sandbar was not a “highway” for the purposes of the Insurance (Vehicle) Act. There was no evidence any of the positive steps in paragraphs (a) to (g), as required by s. 1 of the Transportation Act, had occurred with respect to the sandbar. The sandbar was therefore not a “highway” within paragraph (a) of the Motor Vehicle Act definition. The sandbar did not fall within the definition of “other public way” in s. 1 of the Transportation Act because it was not a “way”. To find the sandbar was a “highway” because vehicles “traversed” it did not logically follow. The evidence did not show the public used the sandbar to go anywhere other than to park in order to camp or fish. The sandbar was the destination, not a route or a passage. The paramount use of the sandbar was to park or camp for recreational purposes. The vehicular use was limited to this purpose. The fact that vehicles drove onto the sandbar in an unrestricted manner and “traversed” it was insufficient to make it a highway. The judge’s interpretation would result in a variety of adverse consequences. It would result in uncertainty as to the dimensions and location of a highway. Uncertainty as to the ownership of the sandbar also raised complications.

Adam v. Insurance Corp. of British Columbia, [2018] B.C.J. No. 6943, British Columbia Court of Appeal, S.D. Frankel, K.C. Mackenzie and D.C. Harris JJ.A., December 20, 2018. Digest No. TLD-February112019003