ICBC Part 7 Benefits and the Definition of Vehicle "Occupant"
Reasons for judgment were released today involving a tragic BC Pedestrian/Truck Crash addressing an injured Plaintiff’s entitlement to “no-fault” accident benefits.
In today’s case (Schuk v. York Fire & Casualty Insurance Company) the Plaintiff was outside of the vehicle (which was hauling a trailer) she was riding in for the purpose of putting chains on it. While doing so she was struck by a tractor-trailer unit and suffered catastrophic injuries. Her vehicle and the various trailers of the vehicles involved were insured with different companies. The Plaintiff applied for ‘no-fault‘ accident benefits to all of the insurers and they all refused payment because they could not agree which of them was responsible for paying the benefits.
The obligation for ICBC to pay no-fault benefits turns in part on whether a person is “insured“. The definition of an “insured” is contained in s. 78 of the Insurance (Vehicle) Regulation and includes “an occupant of a vehicle that is licenced in the Province…” and “a pedestrian who collides with a vehicle described in an owner’s certificate” The determination of which insurer was ultimately responsible to pay the Plaintiff her benefits turned on whether she was an “occupant” of her vehicle at the time of this accident or a “pedestrian“.
Mr. Justice Myers held that the Plaintiff was a “pedestrian” and in so doing made the following observations with respect to the test for being an “occupant“:
 The Regulation defines occupant, but does not define pedestrian. Occupant is defined in s. 1(1) as follows:
“occupant” means a person operating or riding in a vehicle or camper and includes
(a) a person entering or alighting from a vehicle or camper, and
(b) a person, other than a garage service operator or an employee of a garage service operator, who is working, or whose dependant is working, in or on a vehicle or camper owned by that person;
 There are a large number of cases which have addressed this issue in factual situations similar or analogous to the case at bar. For example, in Kyriazis v. Royal Insurance Co. of Canada (1991), 82 D.L.R. (4th) 691 (Ont. Gen. Div.), affirmed (1993), 107 D.L.R. (4th) 288 (C.A.), the plaintiff pulled his car over to clean the snow off its windshield. Abbey J. held that he was not an occupant. In doing so, Abbey J. rejected a line of authority – primarily from the United States – which applied what was referred to as a “zone of connection test”. That test regarded the intent of the injured person as a significant determining factor of whether he or she was an occupant when not inside the vehicle. Abbey J. focussed on the definition of occupant contained in the insurance policy before him, which was virtually identical to that in the Regulation. He stated:
The word “occupant” is defined by reference to various physical activities or processes. An “occupant” is a person who is driving an automobile, being carried in or upon an automobile, entering or getting onto an automobile or alighting from an automobile. The plain meaning of the words used, it seems to me, suggests an intention to draw the line between an occupant and a non-occupant at the point that an individual, who is not driving, can no longer be said to be either entering or getting on to an automobile or, alternatively, alighting from an automobile…
 However, the definition of “occupant” in the Regulation, and the definition in the policies involved in the other cases I have cited above, do in fact refer to the activity of driving, or getting in or out of a vehicle. On that basis, I do not see a reason for departing from the approach in Kyriazis and the other cases I have cited above.
 Ms. Schuk was not operating or riding in the vehicle, entering into it, nor alighting from it at the time of the accident. Although the purpose of pulling over and getting out the vehicle was to put chains on it, the parties are in accord that Ms. Schuk was not actually working on the vehicle at the time of the collision. Therefore none of the criteria for an occupant contained in the definition are met and she was not an occupant.
 Pedestrian is not defined. However, that was also so in most of the cases I cited above at para. 18. The approach taken in those cases is that for the purposes of the scheme of automobile insurance, a victim of a car accident is either an occupant or a pedestrian; in other words if the victim does not fall within the definition of a passenger, then she is an occupant. That appears to me to be the case with the legislation and regulation in issue in the case at bar. Accordingly Ms. Schuk was a pedestrian at the time of the accident.
 Ms. Shuk was therefore an insured for the purpose of no-fault benefits under both MPIC and ICBC coverage.