Plaintiff’s Part 7 Benefits Reinstated after BC Supreme Court Finds Against ICBC in Interpreting Key Legislation

The goodfirm ICBC lawyers want to draw attention to a recent case where ICBC was ordered to reinstate an injured person’s Part 7 Benefits after they were terminated by ICBC.

In Prosofsky v. ICBC, 2016 BCSC 1586, a plaintiff brought a proceeding seeking reinstatement his Part 7 benefits. Part 7 benefits get their name from Part 7 of the Insurance (Vehicle) Act Regulation and are referred to as no-fault benefits. They allow an insured person to claim medical and rehabilitation benefits relating to their injury even where the accident is their fault.

The plaintiff was transporting his ATV in his Dodge Ram to his friend’s house to go for a spin. When he arrived, he set up a ramp behind the truck and slowly backed the ATV down the ramp in neutral. Unfortunately, the ATV had an under inflated tire and flipped up. The plaintiff fell off the ramp and sustained an injury to his thoracic spine as well as a burst fracture in his lumbar spine.

The plaintiff reported the claim and was receiving rehabilitation benefits and reimbursement for his medical expenses. In 2010, the plaintiff was informed that the as the ATV could not be licensed as a vehicle under the Motor Vehicle Act and it was therefore excluded from insurance coverage and he was not entitled to Part 7 Benefits. The plaintiff filed an action against ICBC for continued coverage.

At issue was the application and interpretation of section 96(b)(i) of the Insurance (Vehicle) Act Regulation which states that ICBC is not liable to pay benefits for someone’s injury if at the time of the accident the insured is an occupant of a vehicle that could not be licensed under the Motor Vehicle Act. The regulations define an “occupant” as any person entering or descending from a vehicle or who is working in or on a vehicle that they own. Vehicles are also defined under the Act as a device by which a person or thing may be transported or drawn on a highway (excluding devices designed to be moved by human power).

Defense for ICBC sought to rely on the fact that the ATV could not be licensed under the Motor Vehicle Act and therefore by operation of section 96(b)(i), ICBC was not liable to pay benefits. The plaintiff’s counsel argued that at the time of the accident, he was not an “occupant” of the unlicensed ATV and thus his insurance coverage could not be excluded on that basis.

In interpreting the provisions of the legislation, Madam Justice Hyslop applied the principles of statutory interpretation set out in Symons v. Insurance Corp. of British Columbia, 2016 BCCA 207 and Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 in that benefits-conferring legislation, like the Insurance (Vehicle) Act Regulation’s ought to be interpreted in a broad and generous manner. She found that the plaintiff was not driving or operating the ATV in the normal sense such that the exclusion of the insurance would apply; he was unloading it from his truck. In essence, he was injured as a result of using his pick-up truck to transport an item which is considered ordinary use of a pickup truck and the plaintiff was entitled to Part 7 Benefits.

On this basis Madam Justice Hyslop ordered that the plaintiff was entitled to reinstatement of part 7 benefits.

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