Tag: Schuk v. York Fire & Casualty Insurance Company

MPIC No-Fault Benefits Not Available to British Columbians Injured in BC By MPIC Insured Drivers


Reasons for judgement were released today deciding the extent of no-fault benefits the Manitoba Public Insurance Company (MPIC) has to pay when a driver insured by them injures a person in British Columbia.
In today’s case (Schuk v. York Fire & Casualty Insurance Company) the Plaintiff was considered a pedestrian and was struck by a tractor trailer driven by an individual insured with MPIC.  The collision occurred in British Columbia.  The Plaintiff was severely injured but ICBC and MPIC did not agree as to who had to provide coverage.
Ultimately a lawsuit was brought and Mr. Justice Meyers ordered that both MPIC and ICBC had to provide the Plaintiff with benefits with MPIC being the primary insurer.  (You can click here to read my former post summarizing this previous decision)
Unfortunately the legal positioning did not end there.  Manitoba is a true no-fault jurisdiction meaning that people injured in Manitoba motor vehicle collisions have had their rights to sue for damages severely restricted.  As a trade off they have a relatively generous scheme of no-fault insurance benefits.  In today’s case the Plaintiff argued that MPIC had to provide the Plaintiff with the more robust MPIC benefits.  MPIC disagreed arguing that their obligation to pay no-fault benefits is governed by the lesser BC limits.  Ultimately Madam Justice Brown sided with MPIC and ruled that a British Columbian injured in BC by an MPIC insured driver is not entitled to claim the more generous MPIC no-fault benefits.  Madam Justice Brown provided the following reasons:

[16]         The issue before me turns on the proper interpretation of the Power of Attorney and Undertaking filed by the Manitoba Public Insurance Corporation.  In this case, the relevant provisions of the undertaking provide that the Manitoba Public Insurance Corporation undertakes to:

A. … appear in any action … against it or its insured …

C. … not to set up any defence to any claim … which might not be set up if the contract had been entered into in accordance with the laws relating to motor vehicle liability insurance contracts or plan of automobile insurance in the Province … and to satisfy in a final judgment rendered against it or its insured by a court … in respect of any kind or class of coverage … up to the greater of

(a) the amounts and limits for that kind or class of coverage … provided in the contract or plan, or

(b) the minimum for that kind or class of coverage … required by law in such province ….

[17]         There is no issue that the coverage for the kind or class of insurance, being no-fault benefits is greater in Manitoba.  The question is whether its undertaking makes MPIC liable to pay that amount to Ms. Schuk.  In my view, it does not.  The undertaking provides that MPIC will satisfy any final judgment rendered against it “in respect of any kind or class of coverage provided under the contract or plan”, and “in respect of any kind or class of coverage required by law to be provided under a plan” in British Columbia.

[18]         In this case, there is no coverage provided under the contract or plan to Ms. Schuk for no-fault benefits under Part 2 of the Manitoba Act.  To qualify for that coverage, a person must be a Manitoba resident or injured in an accident in Manitoba (s. 74).  As MPIC argues, the Manitoba standard automobile policy does not incorporate PIPP benefits.  PIPP benefits are available based upon statutory entitlement.

[19]         Here, Section B of the contract provided accident benefits “as required by law”.  The Manitoba legislation provides PIPP benefits only to those resident in or injured in Manitoba.  Those benefits are not “required by law” for one, like Ms. Schuk, who is not a resident of Manitoba and not injured in Manitoba.  The driver of a Manitoba licensed vehicle is not required to carry PIPP coverage.  The Section B endorsement carried a charge of $950 for “accident benefits coverage for those drivers not eligible for Personal Injury Protection Plan (PIPP)”.  I accept the submissions of Manitoba Public Insurance that this would be drivers who were not Manitoba residents and were not injured in Manitoba.

[20]         Ms. Schuk did not have PIPP benefits coverage under either the contract or the plan.

[21]         The other portion of MPIC’s undertaking, that is not to set up any defence which might not be set up if the contract had been entered into in the Province of British Columbia, also does not assist the plaintiff.  ICBC could certainly have set up the defence that it does not provide benefits under the Manitoba legislation; that Ms. Schuk does not qualify for PIPP benefits.

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“:

[16]    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;

[17]    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…

[22]    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.

[23]    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.

[24]    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.

[25]    Ms. Shuk was therefore an insured for the purpose of no-fault benefits under both MPIC and ICBC coverage.

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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