Reasons for judgement were published this week by the BC Court of Appeal dismissing an unidentified motorist injury claim on the basis that the collision occurred on a sandbar which is not a ‘highway’ which is a condition to such a claim succeeding.
In today’s case (Adam v. ICBC) the Plaintiff suffered injuries when struck by an unidentified motorist while on a sandbar that people used to camp and fish from along the Fraser River. The Plaintiff sued ICBC under s. 24 of the Insurance (Vehicle) Act. At trial the Plaintiff was successful but ICBC appealed arguing that a s. 24 claim could not succeed in these circumstances as a sandbar is not a highway and a crash has to occur on a highway for s. 24 to be triggered. The BC Court of Appeal agreed and provided the following reasons:  In summary, none of the means of becoming a highway as required by paragraphs (a) to (g) of the Transportation Act definition apply to the sandbar. Nor is the sandbar a “highway” within the meaning of paragraph (b) or (c) of the Motor Vehicle Act definition. I therefore conclude the judge erred in finding the sandbar is a “highway” within the meaning of s. 24 of the IVA.
One of the restrictions in bringing a lawsuit against ICBC for damages caused by an unidentified motorist is the incident needs to occur on a “highway“. Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the definition of highway in the context of a hit and run claim.
In this week’s case (Nadeau v. Okanagan Urban Youth and Cultural Association) the Plaintiff was struck by an unidentified motorist while standing in a field that was used as a parking area for an outdoor concert. The Plaintiff sued ICBC for damages. The Court ultimately decided that given the use of the private property at the time it was a highway and the unidentified motorist claim could proceed. In so finding Mr. Justice Powers provided the following reasons:  The Motor Vehicle Act, R.S.B.C. 1996, c. 318 defines “highway” as follows: “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;  In the present case, the issue is whether the place where the accident happened falls within the definition of “highway” in s. 1(c) of that definition. The defendant, ICBC, denies that the place where the accident occurred was a “highway” on the basis that it is a private place to which the public did not have access, or was not invited for the purposes of parking.  On June 30, when Mr. Nadeau attended the concert with his friend, Mr. Jong, they parked in an area that Mr. Jong described as an area where people with passes parked. However, there is no evidence about what passes were needed, even when this area was controlled by security. There were passes for security, crew, media, artists, guests, all access and production. It is not even clear that everybody that entered this area with a vehicle required a pass. They used their pass to get into this parking area. On July 1, when they returned, Mr. Jong’s memory is that they passed through the secondary gate and that he had to show a pass to security people at this gate. He recalls there were a couple of rows of parked vehicles in this area. He says that later in the evening, before the accident, when he came and went, that there was no security at this gate, he was not stopped, and was not required to provide any pass. Mr. Nadeau’s evidence as well is that he does not recall any security at this gate later that evening on July 1, when they attended. Mr. McMann’s evidence was that initially, in the secondary area, people needed a pass to park in this area, but then things got slack. Mr. Tosh Mugambi could only be sure that the VIP area was being strictly controlled. There were a number of different kinds of passes. The concert goers had ticket stubs, but there were a large number of different kinds of passes, artist passes, VIP passes, guest passes, and the guest could be anybody, including volunteers, or anybody who happened to receive a pass from either one of the organizers or even the owners of the property who had a number of passes.  The area has been described as a field and physically it was a field. It is private property. However, it was being used as a parking lot when the accident occurred. At some point during the concert, there was some control over who had access to this area. However, that was not consistent throughout the concert, and I am satisfied that by the evening of July 1, this secondary area was no longer being controlled or restricted by the organizers or by security. The public had access to this area for the purposes of parking. The primary parking for the concert goers was in the general parking area, but there was no longer any control or restrictions on parking in the secondary area. Therefore, I am satisfied that for several hours before and, certainly at the time of the accident, this was a place in which the public had access for the purposes of parking. The public at this time included concert goers who might proceed through this secondary gate and clearly included anyone who was there in order to carry on the business of putting on or assisting in some way with the concert, or their friends or supporters. The people that had access at that time was a broad enough group to fall within the definition of the public in s. 1(c) of the Motor Vehicle Act.
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:
 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:
(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;
 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;
 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;
 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.
 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.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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