Collier v. Insurance Corp. of British Columbia, (1995) 54 B.C.A.C. 81 (CA)

• Judge: Southin, Hinds and Hollinrake, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 14, 1994
• Jurisdiction: British Columbia
• Citations: (1995), 54 B.C.A.C. 81 (CA)

Collier v. ICBC (1995), 54 B.C.A.C. 81 (CA);

    88 W.A.C. 81

MLB headnote and full text

Norman Collier (plaintiff/respondent) v. Insurance Corporation of British Columbia (defendant/appellant)

(CA017948)

Indexed As: Collier v. Insurance Corp. of British Columbia

British Columbia Court of Appeal

Southin, Hinds and Hollinrake, JJ.A.

January 6, 1995.

Summary:

The plaintiff was held jointly and severally liable, together with others not parties to this action, to one Harrison in separate proceed­ings. See 20 B.C.A.C. 118; 35 W.A.C. 118. The plaintiff brought this action against his insurer for indemnity under his motor vehicle liability policy respecting the judg­ment to Harrison. The trial judge held that the events in question fell within the terms of the plaintiff's policy and allowed the action. The insurer appealed.

The British Columbia Court of Appeal allowed the appeal, set aside the judgment below and dismissed the plaintiff's action.

Estoppel - Topic 378

Estoppel by record (res judicata) - As a bar to subsequent proceedings - Parties - A bridegroom escaped from his stag party shackled with a ball and chain - An insured driver used his vehicle as a roadblock to prevent the groom from leaving, while others restrained him - The groom fell or was pushed through a win­dow, suffering massive injuries - All participants, including the driver, were found jointly liable - The British Colum­bia Court of Appeal held that the fact findings in the groom's action against the participants, considered in light of the pleadings in that action, could bind the driver's insurer in an action by the driver for liability coverage - See paragraphs 20 to 37, 87 to 95.

Insurance - Topic 5016

Automobile insurance - Compulsory gov­ernment schemes - Liability coverage - Policy limits - "Use or occupation" of motor vehicle - A driver was insured "for liability imposed ... by law for injury ... of another that ... arises out of the ownership, use or operation by the insured" of the insured vehicle - A bridegroom escaped from his stag party shackled with a ball and chain - The driver used his vehicle as a roadblock to prevent the groom from leaving, while others restrained him - The groom fell or was pushed through a win­dow, suffering massive injuries - The British Columbia Court of Appeal held that the driver's actions constituted an assault - He was not entitled to indemnifi­cation from his insurer because the groom's injuries did not arise out of the "use" of his vehicle - See paragraphs 20, 38 to 83, 96 to 105, 107 to 111.

Practice - Topic 5442

Judgments and orders - Operation and effect of judgments and orders - Persons affected - The British Columbia Court of Appeal stated that it was a general prin­ciple that no one can be bound by a judg­ment in an action to which he was not a party - The underlying reason for the general rule was the fundamental principle of audi alteram partem - To this principle there was a partial exception when the action was upon a contract of indemnity for liability imposed by law - See para­graphs 34 to 37.

Words and Phrases

Arises out of - The British Columbia Court of Appeal held that the phrase "arises out of" as found in s. 64 of the Insurance (Motor Vehicle) Act Regulations meant "caused by" when it was the use or operation of the motor vehicle which was in issue - See paragraph 64.

Cases Noticed:

Stevenson et al. v. Canadian General In­surance Co., [1956] S.C.R. 936, consd. [paras. 18, 100].

Wu v. Malamas et al. (1985), 67 B.C.L.R. 105 (C.A.), refd to. [para. 18].

Wayne Tank and Pump Co. v. Employers' Liability Assurance Corp., [1973] 3 All E.R. 825 (C.A.), consd. [para. 21].

Dokuchia v. St. Paul Fire & Marine, [1949] 2 D.L.R. 171 (Ont. C.A.), consd. [para. 24].

Global General Insurance Co. v. Finlay and Laying, [1961] S.C.R. 539, consd. [paras. 27, 91].

Bliefernich v. Freeman (1989), 38 B.C.L.R. 128; 38 C.C.L.I. 169 (C.A.), refd to. [para. 33].

Kingston's (Duchess) Case (1776), 20 St. Tr. 355 (C.P.), refd to. [para. 35].

Law, Union & Rock Insurance Co. v. Moore's Taxi Ltd., [1960] S.C.R. 80, affing. (1959), 20 D.L.R.(2d) 149 (Man. C.A.) consd. [para. 39].

Dickinson v. Motor Vehicle Insurance Trust (1987), 61 A.L.J.R. 553 (H.C.), refd to. [para. 43].

Becker, Gray & Co. v. London Assurance Corp., [1918] A.C. 101, refd to. [para. 56].

Canadian Bank of Commerce v. London & Lancashire Guaranty & Accident Co. (1958), 14 D.L.R.(2d) 623 (Ont. C.A.), refd to. [para. 56].

Law, Union & Rock Insurance Co. v. Moore's Taxi Ltd. (1959), 20 D.L.R.(2d) 149 (Man. C.A.), refd to. [para. 56].

Leyland Shipping Co. v. Norwich Union Fire Insurance Society, [1918] A.C. 350, consd. [para. 58].

Boiler Inspection and Insurance Co. of Canada v. Sherwin-Williams Co. of Canada Ltd., [1951] A.C. 319 (P.C.), refd to. [para. 61].

Paulus v. Robinson (1991), 7 B.C.A.C. 147; 15 W.A.C. 147; 60 B.C.L.R.(2d) 116 (C.A.), refd to. [para. 66].

Hurst v. Picture Theatres, [1915] 1 K.B. 1 (C.A.), refd to. [para. 70].

R. v. Nelham (1846), 6 L.T.O.S. 455, refd to. [para. 73].

Dokuchia v. St. Paul Fire & Marine, [1949] 2 D.L.R. 171 (Ont. C.A.), consd. [para. 89].

Hamilton v. Laurentian Pacific Insurance Co., [1989] I.L.R. 1-2479 (B.C.C.A.), consd. [para. 93].

Wayne Tank v. Employers Liability Corp., [1973] 3 All E.R. 825 (C.A.), refd to. [para. 94].

Statutes Noticed:

Automobile Insurance Policy Act, S.B.C. 1922, c. 35 [para. 49].

Insurance Act, S.B.C. 1925, [para. 50].

Insurance Act, R.S.B.C. 1979, c. 200, sect. [para. 46].

Insurance (Amendment) Act, S.B.C. 1932, c. 20, sect. 159F [para. 51].

Insurance (Motor Vehicle) Act, R.S.B.C. 1979, c. 204, sect. 7 [para. 65]; sect. 7(1)(b) [para. 44]; sect. 19 [para. 65]; sect. 19(1) [para. 44]; sect. 23 [para. 65]; sect. 23(1) [para. 44].

Insurance (Motor Vehicle) Act Regula­tions, sect. 55(7.1) [para. 79]; sect. 64 [paras. 4, 82, 88].

Motor Vehicle Act, R.S.B.C. 1979, c. 288, sect. 84(1) [para. 47].

Motor Vehicles (Amendment) Act, S.B.C. 1926-27, c. 44, sect. 12 [para. 53].

Motor Vehicles (Amendment) Act, S.B.C. 1937, sect. 11 [para. 54].

Counsel:

Rolf Weddigen, for the appellant;

A. Cameron Ward and G. Rosenfeld, for the respondent.

This appeal was heard in Vancouver, British Columbia, on November 14, 1994, before Southin, Hinds and Hollinrake, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on January 6, 1995, and the following opinions were filed:

Southin, J.A. - see paragraphs 1 to 83;

Hollinrake, J.A. - see paragraphs 84 to 106;

Hinds, J.A. - see paragraphs 107 to 111.