ICBC Claims, Uninsured Motorists, and the Definition of "Highway"
Did you know that if you are injured in BC by a motorist who does not have any insurance at all you can still seek coverage of your tort claim directly from ICBC? The reason you can do this is because of Section 20 of the Insurance (Vehicle) Act which requires ICBC to pay the damages directly when an uninsured motorist negligently injures others.
There are limits to ICBC’s liability under this section, and one such limitation is that the collision has to occur on a ‘highway‘. If the crash does not occur on a ‘highway‘ then ICBC does not need to pay damages under section 20. Reasons for judgement were released today by the BC Supreme Court, Prince George registry, dealing with exception.
In today’s case (Pierre v. Miller) the Plaintiff was injured in a motor vehicle collision. The collision took place on Finlay Forest Service Road, a fairly remote road in British Columbia. The Defendant was not insured and ICBC defended the case directly by the authority given to them under section 20 of the Insurance (Vehicle) Act. ICBC’s lawyer brought a motion for a declaration that Finlay Forest Service Road is not a highway.
Mr. Justice Meiklem agreed with ICBC finding that the road was “a forest service road” and therefore not a highway and ordered that ICBC did not have to pay the Plaintiff anything for his injuries under section 20.
In reaching this conclusion the Court gave the following summary of the definition of “Highway” for the purpose of Uninsured Motorist Claims:
[3] In order for ICBC to be liable to pay a claim under the provisions of the s. 20 of the IMV Act, the claim must arise out of the use or operation of a motor vehicle on a highway in British Columbia. This follows from the definition of “claimant” and “uninsured motorist” in s. 20 of the IMV Act. “Highway” is defined in the IMV Act as meaning a highway as defined in the Motor Vehicle Act, R.S.B.C. 1996. c. 318 (“MVA”). The MVA definition of highway is:
“highway” includes
(a) every highway within the meaning of the Transportation Act,
(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and
(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,
but does not include an industrial road;
[4] The MVA also defines “industrial road” as follows:
“industrial road” means industrial road as defined in the Industrial Roads Act, and includes a forest service road as defined in the Forest Act and land designated as a development road under section 8 (1) of the Petroleum and Natural Gas Act;
[5] The definition of an industrial road in the Industrial Roads Act, R.S.B.C. 1996, c. 189 is not applicable in this case but the Forest Act, R.S.B.C. 1996, c. 157 definition of forest service road which is part of the definition of an industrial road in the MVA is in issue. The Forest Act defines a “forest service road” as follows:
“forest service road” means a road on Crown land that
(a) is declared a forest service road under section 115 (5),
(b) is constructed or maintained by the minister under section 121,
(c) was a forest service road under this definition as it was immediately before the coming into force of this paragraph, or
(d) meets prescribed requirements;
[6] The motor vehicle accident in this case occurred on a road known and marked as the Finlay Forest Service Road. The applicant ICBC argues that the Finlay Forest Service Road falls within the Forest Act definition because it is declared to be a forest service road and because it was constructed or maintained by the Minister of Forests. The respondent plaintiff argues that the Finlay Forest Service Road is a highway by way of public expenditure to which s. 42 of the Transportation Act, S.B.C. 2004, c. 44 applies and also because it is used by the general public for the passage of vehicles. Alternatively the plaintiff argues that if the Finlay Forest Service Road is a forest service road it does not satisfy the definition under the IMV Act because it is a Community Use Forest Service Road rather than an Industrial Use Forest Service Road, it is not primarily for the transportation of natural resources or machinery materials or personal and it is not maintained by the Ministry of Forests and Range.
[7] Another statutory provision of interest although not directly helpful in characterizing the Finlay Forest Service Road is s. 56 of the Transportation Act which enables the Lieutenant Governor and Council, with the consent of the Minister of Transportation and Highways and Minister of Forests and Range to order that a forest service road cease to be a forest service road and become an arterial highway or a rural highway. There is no evidence that this has occurred in this case.