Halbauer v. Insurance Corp. of British Columbia, 2002 BCCA 5

• Judge: Esson, Southin and Ryan, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 19, 2001
• Jurisdiction: British Columbia
• Citations: 2002 BCCA 5;(2002), 161 B.C.A.C. 257 (CA)

Halbauer v. ICBC (2002), 161 B.C.A.C. 257 (CA);

    263 W.A.C. 257

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. JA.009

Wayne Halbauer (plaintiff/appellant) v. Insurance Corporation of British Columbia (defendant/respondent)

(CA027110; 2002 BCCA 5)

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

British Columbia Court of Appeal

Esson, Southin and Ryan, JJ.A.

January 8, 2002.

Summary:

The plaintiff insured, then a logger, suf­fered serious permanent injuries in a motor vehicle accident in 1990. For approximately 3.5 years after the accident, the insurer paid disability benefits to the insured under Part 7 of the Insurance (Motor Vehicle) Act Regulations. The insurer terminated the benefits after the insured obtained full-time employment in a sedentary job. When the insured left that employment after eight months, he sued the insurer for a declaration that it had no right to terminate the pay­ments and was obligated to continue them.

The British Columbia Supreme Court, in a decision reported at [2000] B.C.T.C. Uned. 554, dismissed the insured's action. The insured appealed.

The British Columbia Court of Appeal allowed the appeal and granted a declaration that the insured was entitled to disability payments from the date he began his full-time employment until such time as he was no longer totally disabled, except for a period from May 1, 1995 to September 30, 1997.

Insurance - Topic 5062

Automobile insurance - Compulsory gov­ernment schemes - Bodily injury and death benefits - Total disability defined - Insur­ance (Motor Vehicle) Act Regulation 447/83, sections 80(1) and 86(1)(a), pro­vided for disability benefits where an injury totally disabled an employed insured "from engaging in employment or AN occupation for which he was reasonably suited by education, training or experi­ence ..." - The British Columbia Court of Appeal affirmed that in order to continue to be entitled to disability payments, the insured must establish that he was disabled from engaging in ANY (ALL) employment or occupation for which he was reasonably suited - See paragraphs 5, 20 to 42.

Insurance - Topic 5062

Automobile insurance - Compulsory gov­ernment schemes - Bodily injury and death benefits - Total disability defined - In 1990 the insured logger suffered serious perma­nent injuries in a motor vehicle accident - While he could never resume that same work, he was capable of some form of employment - On March 21, 1994, he began full-time employment in a sedentary job - He quit eight months later, although would eventually have been terminated - From May to September in 1995, 1996 and 1997, he did seasonal work in a family business - Thereafter he had no gainful employment - The British Columbia Court of Appeal held that the insured was entitled to disability benefits from March 21, 1994 until he was no longer totally disabled, except from May 1, 1995 to September 30, 1997 - See para­graphs 43 to 50, 65.

Insurance - Topic 5062

Automobile insurance - Compulsory gov­ernment schemes - Bodily injury and death benefits - Total disability defined - In 1990 the insured logger suffered serious perma­nent injuries in a motor vehicle accident - While he could never resume that same work, he was capable of some form of employment - The insurer paid disability benefits until the insured began full-time employment in a sedentary job - The insured sued for a declaration that the insurer had no right to terminate the bene­fits - The British Columbia Court of Appeal held that, s. 90 of the Insurance (Motor Vehicle) Act Regulations not hav­ing been invoked by the insurer, the trial judge erred in holding that the insured was under a positive legal obligation to do more than he did to attempt to rehabilitate himself - See paragraphs 48 to 50.

Insurance - Topic 5075

Automobile insurance - Compulsory gov­ernment schemes - Bodily injury and death benefits - Onus of proof - In 1990 the insured logger suffered serious perma­nent injuries in a motor vehicle accident - The insurer paid disability benefits for approxi­mately 3.5 years after the accident, but terminated payments when the insured began full-time employment in a sedentary job - The British Columbia Court of Appeal held that the insured did not have the full onus of proving that he continued to be disabled - The insured had the onus of making a prima facie case that he was within the policy - The onus was then on the insurer to submit evidence of a job suited to the insured and within his capa­bilities - See paragraphs 51 to 54.

Cases Noticed:

Kenni v. Insurance Corp. of British Columbia (1993), 14 C.C.L.I.(2d) 62 (B.C.S.C.), refd to. [para. 20].

Sucharov v. Revere (Paul) Life Insurance Co., [1983] 2 S.C.R. 541; 50 N.R. 144; 26 Man.R.(2d) 161, consd. [para. 20].

Brewer v. Insurance Corp. of British Columbia (1999), 20 B.C.T.C. 39; 71 B.C.L.R.(3d) 248 (S.C.), consd. [para. 21].

Okanagan Mainline Real Estate Board v. Canadian Indemnity Co. and Whillis-Harding Insurance Agencies Ltd. (1968), 66 W.W.R.(N.S.) 257 (B.C.S.C.), revd. (1969), 71 W.W.R.(N.S.) 669 (B.C.C.A.), affd. [1971] S.C.R. 493, consd. [paras. 33, 35, 37].

R. v. Tonbridge Overseers (1884), 13 Q.B.D. 339 (C.A.), refd to. [para. 40].

Campbell v. Canada Life Assurance Co. (1990), 65 Man.R.(2d) 95; 45 C.C.L.I. 73 (C.A.), appld. [para. 51].

Rose v. Revere (Paul) Life Insurance Co. (1991), 6 B.C.A.C. 106; 13 W.A.C. 106; 62 B.C.L.R.(2d) 48 (C.A.), dist. [para. 53].

Sutherland v. Insurance Corp. of British Columbia, [1980] I.L.R. 1-1283 (B.C.S.C.), dist. [para. 60].

Statutes Noticed:

Insurance (Motor Vehicle) Act Regulations (B.C.), Revised Regulation (1984), Reg. 447/83, sect. 80(1), sect. 86(1)(a) [para. 3].

Revised Regulation (1984) - see Insurance (Motor Vehicle) Act Regulations (B.C.).

Authors and Works Noticed:

Brown, Craig, and Seto, Elizabeth Cum­mins, No-Fault Automobile Insurance in Canada (1988), p. 104 [para. 32].

Counsel:

Lawrence B. O'Neill, for the appellant;

Gordon A. McFarlane, for the respondent.

This appeal was heard on September 19, 2001, at Vancouver, British Columbia, before Esson, Southin and Ryan, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Esson, J.A., on January 8, 2002.