Motorcycle Learner Licences, the Supervision Requirement and Breach of Insurance
Useful reasons for judgement were released this week by the BC Court of Appeal addressing the circumstances when a motorcycle learner will be held in breach of insurance for not being supervised by a qualified driver.
In today’s case (Hagen v. ICBC) the Plaintiff had a valid 6L learner’s licence. One requirement of a learner’s motorcycle licence is for the learner to be supervised while riding by a fully licenced motorcyclist. The Plaintiff was being supervised by his wife who had a valid motorcycle licence. While riding in Vancouver in 2008 the Plaintiff was momentarily out of the view of his wife. At this time he was struck by a truck making a u-turn and was seriously injured.
The Plaintiff applied to ICBC for no-fault benefits but ICBC refused to pay these arguing that the Plaintiff was in breach of his insurance for failing to comply with section 30.06 of the Motor Vehicle Act Regulations which read in part as follows:
Section 30.06 of the Motor Vehicle Act Regulations provides:
(4) A person to whom a Class 6L licence is issued, … must not operate a motorcycle unless the person is under the direct supervision of another person who
(a) is at least 19 years of age, and
(b) holds a valid and subsisting driver’s licence, other than a learner’s licence … of a class that permits him or her to operate a motorcycle.
…
(5) For the purposes of subsections (4) … direct supervision means that the person supervising can, at all times, see the other person while the other person is operating the motorcycle.
ICBC argued that “however momentary the separation of the vehicles may and consequent loss of sight may be, such loss of sight…negates eligibility for Part 7 Benefits“. The trial judge disagreed with ICBC and ordered them to pay the Plaintiff no-fault benefits finding that ICBC’s interpretation would impose “financially devastating consequences on a person as a result of events over which he or she had no control”
ICBC appealed and failed. In dismissing ICBC’s arguments the BC Court of Appeal provided the following useful reasons addressing the requirement of learner motorcyclists to be supervised:
[21] One may ask whether it was intended that a learner motorcyclist would be in breach of the supervision requirement when, having arranged for supervision, the supervisor acted contrary to agreement and took another route? In my view the answer is no.
[22] This discussion is akin to the discussion of “due diligence” urged upon us by the appellant in saying we need not concern ourselves with the “offence” consequences of the interpretation it advocates. It says Mr. Hagen could answer a charge of breaching the supervision requirement by saying that he demonstrated due diligence in his attempt to comply, and that his non-compliance was outside of his control. In other words, it says a charge of breaching s. 30.06(4) would be treated as a strict liability offence. If that is the case, why, then, should other consequences, perhaps more grave, adhere to Mr. Hagen in a civil context because his supervision failed in spite of his reasonable efforts to comply with the section?
[23] Section 30.06(4) is directed entirely to the behaviour of the learner, and in my view s. 30.06(5), in articulating the requirement of observation at all times, must be read as focusing upon the behaviour for which the learner can be responsible. Taking this approach, s. 30.06 of the Regulations, read in context, requires the learner to take all reasonable steps to ensure he (or she) is being supervised in compliance with the Regulations. This requires the learner to arrange for supervision by a person who commits to keeping him in sight at all times, and requires the learner to refrain from driving where it is not reasonable for him (or her) to think such supervision is occurring. I readily acknowledge that there will be circumstances in which a supervisor who fails to follow may nullify the learner’s Part 7 benefits, as in a failure to keep sight of the learner for such a period of time or distance that the learner, acting reasonably, should have become aware the plan for supervision had been compromised. Thus there will be a factual question: did the learner take all reasonable steps to ensure he was being supervised? In this case that translates to the question: should the learner have been aware he was not in sight of the supervisor?
[24] This is a case in which the supervisor, not the learner, made a mistake, a mistake which was so near in time and distance to the accident it was open to conclude Mr. Hagen could not be faulted for failing to detect his loss of supervision. The judge described the lack of supervision as momentary. He referred to evidence that Mr. Hagen had seen the supervisor behind him at the previous intersection. The judge considered the evidence of the street design and the evidence that the many stop signs had permitted some vehicles to fall in between Mr. Hagen and his supervisor. I consider it was open to him on the evidence to conclude that this was a case of loss of contact that did not put Mr. Hagen in breach of the Regulations.
[25] It follows I would dismiss the appeal.