Summaries Sunday: OnPoint Legal Research

• Author: Administrator
• Date: January 27, 2019

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Clancy v. Clancy, 2018 BCCA 448

Adam v. Insurance Corporation, 2018 BCCA 482

AREAS OF LAW: Insurance law; Personal injury; Hit and run; Definition of “highway”

~A sandbar that is used by members of the public to access fishing areas, but is not maintained or improved by public entities, is not a “highway” for the purposes of the Insurance (Vehicle) Act.~

BACKGROUND

This case raised the novel question of whether a sandbar that appears seasonally in the Fraser River is a highway for the purposes of the Insurance (Vehicle) Act. The sandbar is approximately a kilometre wide and is used by members of the public to park, fish, and camp along the river. At all relevant times, the sandbar was a public thoroughfare accessible by motor vehicle from the highway. The Respondent, Robert Adam, had parked his truck and camper on the sandbar near a number of other vehicles. He was asleep in the camper in the early morning hours when a white Jeep pulled up. The young male occupants attempted to steal the Respondent’s cooler. He chased them away, but they returned about a half hour later and stole the cooler, which was full of beer. The unidentified men also appeared to have tipped over the Respondent’s generator. The Respondent approached the Jeep, but it suddenly drove off and struck him as it went. He suffered injuries as a result. At trial, the judge acknowledged that if the accident did not take place on a “highway”, the action must be dismissed. The judge considered the definitions of highway in the Motor Vehicle Act and the Transportation Act. The judge applied a “broad purposive approach” in interpreting highway, giving consideration to the fact that the definition in the Motor Vehicle Act is not exhaustive. The judge concluded that the sandbar was a “public way”, bringing it within the definition of highway under the Transportation Act. It was used both as a parking lot and a route between the main highway and the fishing areas. The judge also noted that even a temporary path may be a highway under the legislation if it can be shown that it meets the legislative definition.

APPELLATE DECISION

The appeal was allowed. The Appellant, the Insurance Corporation of British Columbia, took the position that the judge erred in concluding that the sandbar was a highway. It argued that s. 24 of the Insurance (Vehicle) Act, which sets out the remedy for damage in a hit and run accident, is not a conventional provision of insurance coverage and should not be interpreted as liberally as the trial judge did. The issue raised a question of mixed fact and law. If the judge correctly interpreted the relevant provisions, the application of his interpretation to findings supported by the evidence to determine whether the sandbar was a highway was a fact-sensitive one, reviewable on a standard of palpable and overriding error. The Court of Appeal employed several tools of statutory interpretation, including the...