IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Felix v. Insurance Corporation of British Columbia,

 

2014 BCSC 166

Date: 20140203

Docket: S24034

Registry: Chilliwack

Between:

Marnetta Lynn Felix

Plaintiff

And

Insurance Corporation of British Columbia

Defendant

Before: The Honourable Mr. Justice A. Saunders

Reasons for Judgment

Counsel for the Plaintiff:

D. MacAdams, Q.C.

M. Thornton
P. Thornton

Counsel for the Defendant:

D. James

Place and Date of Trial:

New Westminster, B.C.

December 6 and 7, 2012

Further Written Submissions Received:

January 2 and 17, 2013
and February 1, 2013

Place and Date of Judgment:

Chilliwack, B.C.

February 3, 2014


 

[1]             When a passenger in a motor vehicle intentionally interferes with the vehicle driver, is the passenger using or operating the motor vehicle such that his or her actions are covered by motor vehicle third party liability insurance?

[2]             The Plaintiff, Ms. Marnetta Felix, suffered significant injuries in a single-vehicle accident on July 8, 2006. Ms. Felix was driving her vehicle, travelling eastbound on Highway No. 1. Her boyfriend, the late Mr. Kevin Hearne, was in the right front passenger seat. Mr. Hearne grabbed the steering wheel, Ms. Felix lost control and the vehicle left the highway and came to rest overturned. Mr. Hearne was killed in the accident.

[3]             Ms. Felix sued Mr. Hearne’s estate and ultimately obtained judgment in the amount of $791,950 and costs. The Insurance Corporation of British Columbia (“ICBC”) was put on notice of the proceedings but declined to participate.

[4]             Ms. Felix now seeks to have the judgment amount paid by ICBC pursuant to s. 21 of the former Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231.

The Accident

[5]             On the day of the accident Ms. Felix and Mr. Hearne had been at a soccer tournament. After his last game of the day, Mr. Hearne went to a concession and began drinking beer. Over the next two hours or more Mr. Hearne continued to drink, to the point that he became very intoxicated. At one point, he saw that Ms. Felix had her arm around another man. Mr. Hearne approached them. He looked angry, as if he wanted to start an argument. Ms. Felix decided that they had better leave, and she got into the driver’s seat of her car, which she was the registered owner of, with Mr. Hearne taking the front passenger seat. At that point Ms. Felix was anticipating an argument; she could see from the expression on his face how angry he was. There had been previous occasions during their relationship when Mr. Hearne had had jealous outbursts and the two of them had gotten into big arguments.

[6]             They drove out of the grounds where the tournament was being held and proceeded along a road leading to Highway 1. They began arguing. The argument was purely verbal.

[7]             Ms. Felix reached a stretch of road that was winding and uphill. Her speed slowed to about 30 or 40 km/h. They were still arguing at that point. Mr. Hearne suddenly reached over, grabbed the steering wheel, and then let go of it immediately. Ms. Felix said something to him like, “What the hell are you doing?”  Seconds later, he grabbed the steering wheel again, and again let go of it immediately. She repeated her remark.

[8]             Neither of these incidents affected the movement of the vehicle, or caused it to move to the left or the right. Ms. Felix’s impression was that Mr. Hearne had grabbed the wheel to scare her.

[9]             They then merged onto Highway 1, and began heading east towards Chilliwack.

[10]         When examined for discovery on August 15, 2012, Ms. Felix deposed that she could not remember whether the argument continued as they travelled along Highway 1; however, in a statement given to the police on July 30, 2006, again in a written statement given to an insurance adjuster in August 2006, and in an affidavit she swore in April 2009, Ms. Felix stated that she and Mr. Hearne continued to argue as they drove along the freeway. I find that to have been the case.

[11]         Suddenly – Ms. Felix estimates approximately 15 minutes after the second incident when he grabbed the wheel – Mr. Hearne reached across and grabbed the steering wheel again. This time he did not let go. Her last continuous memory is of the vehicle moving toward the side of the road.

[12]         Her next memory is of seeing people looking down at her. Mr. Hearne was next to her, upside down. He was unresponsive. He died at the scene, or shortly thereafter. Ms. Felix was hospitalized.

Legal Proceedings

[13]         Ms. Felix commenced an action in this court for damages against Kevin Terrance Hearne, Deceased, by way of a Writ of Summons and Statement of Claim filed March 5, 2008 (the “Damages Action”). ICBC was duly notified of the Damages Action and was advised throughout of steps being taken by counsel for Ms. Felix to prosecute her claim, but declined to participate.

[14]         On June 12, 2008 Master Caldwell ordered that the wife of the deceased be appointed to represent the estate of the deceased for all purposes of the action. An Appearance and a Statement of Defence were filed four days later, June 16.

[15]         On June 8, 2009 Mr. Justice Joyce ordered that the style of cause in the Damages Action be amended to name as defendants Kevin Terrance Hearne, Deceased and The Estate of Kevin Terrance Hearne, Deceased, and he granted judgment in favour of the plaintiff, with damages to be assessed.

[16]         The trial assessment of damages was heard over four days in February 2011 before Mr. Justice Grist. By way of Reasons for Judgment given September 15, 2011 (indexed at 2011 BCSC 1236), the plaintiff was awarded damages of $791,950. (The higher total damages given in those Reasons reflects a mistake in addition, which was corrected in the final order.)

[17]         On December 1, 2011, Registrar Cameron assessed costs in the amount of $71,292.63.

[18]         The plaintiff, therefore, seeks in the present action to recover from ICBC the total amount of $863,242.63, plus post-judgment interest.

Statutory Provisions

[19]         Recovery from ICBC is claimed under s. 21 of the Insurance (Motor Vehicle) Act (the “Act”). At the time of the subject accident, the Act had been amended and renamed the Insurance (Vehicle) Act, but the amendments had not yet come into force. Pursuant to the transition provisions in s. 81 of the Insurance (Motor Vehicle) Amendment Act, S.B.C.2003 c. 94, the Act and the Revised Regulation (1984) thereto, B.C. Reg. 447/83 (the “Revised Regulation”), were to continue to apply to insurance in place before the amendments came into force. Both parties agree that the former Act and Revised Regulation apply to the present case.

[20]         Section 21(1) of the Act provided as follows:

21 (1)  Even though he or she does not have a contractual relationship with the corporation, a person having a claim against an insured for which indemnity is provided by an owner’s certificate under a plan or part of a plan is entitled, on recovering judgment against the insured or settlement with the corporation, to have the insurance money payable under a plan or part of a applied toward his or her judgment or the settlement and toward any other judgments or claims against the insured covered by the indemnity; and he or she may, if a settlement is not made, on behalf of himself or herself and all persons having judgments or claims, maintain an action against the corporation to have the insurance money so applied.

[21]         The issue in the present case is whether Ms. Felix’s claim against Mr. Hearn is one for which indemnity is provided by an owner’s certificate. “Owner’s certificate” is a defined in the Act as “a certificate issued under this Act or the regulations to an owner” (s.1). An “owner” is defined in the Act as “the person in whose name a motor vehicle or trailer is registered and licensed under the Motor Vehicle Act or the Commercial Transport Act” (s.1).

[22]         (The plaintiff has pleaded in the alternative that the claim is one for which indemnity was provided by a driver’s certificate, that being the liability insurance deemed by the provisions of Part 4 of the Revised Regulation to be incorporated into Mr. Hearne’s British Columbia driver’s license. That position, however, does not assist the plaintiff, as the operation of s.21 does not extend to claims under a driver’s certificate.)

[23]         The scope of third party liability insurance provided under owner’s certificates was set out in Part 6 of the Revised Regulation. The salient provisions are as follows:

Interpretation

63 In this Part, "insured" means

(a) a person named as an owner in an owner's certificate,

(b) an individual who, with the consent of the owner or while a member of the owner's household, uses or operates the vehicle described in the owner's certificate,

Indemnity

64 Subject to section 67, the corporation shall indemnify an insured for liability imposed on the insured by law for injury or death of another or loss or damage to property of another that

(a) arises out of the use or operation by the insured of a vehicle described in an owner's certificate …

Extension of indemnity to passenger

66 Indemnity under this Part is extended to a passenger in a vehicle described in an owner's certificate who, by operating any part of the vehicle while the vehicle is being operated by an insured, causes

(a) injury or death to a person who is not an occupant of the vehicle …

Principles of Interpretation

[24]         The provisions of the Act and the Revised Regulation are of course subject to the usual rules of statutory interpretation, not the least of which is the requirement set out in section 8 of the Interpretation Act, R.S.B.C. 1996 c. 238, that

Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensure the attainment of its objects.

However, as these statutory provisions also create an insurance contract, the rules of interpreting insurance contracts may come into play.

[25]         One such rule is the principle that ambiguities in an insurance contract are to be interpreted contra proferentem, against the interests of the underwriter responsible for the wording. This rule is often viewed as having no place in the interpretation of insurance contract terms mandated by statute: see for example Madill v. Chu, [1977] 2 S.C.R. 400, per Ritchie J. at p. 410, and per Spence J. (dissenting on other grounds) at p. 405; and Squire v. Insurance Corp. of British Columbia (1990), 44 B.C.L.R. (2d) 65 (C.A.).

[26]         Another rule, sometimes described as a corollary of contra proferentem (e.g. in Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, at para. 70), is that coverage provisions should be construed broadly in favour of the insured, and exclusion provisions narrowly against the insurer. In his dissenting judgement in Madill, Spence J. indicated that this principle could be applied to statutory insurance language (at p. 405):

Arnup J.A. accepted as an alternative argument in favour of the contention of the plaintiff, the respondent in the Court of Appeal and in this Court, the application of the well-known contra proferentem rule. However, as I have pointed out, the words in the insurance policy are the exact words which appear in The Insurance Act and their inclusion in the standard automobile policy is directed by the provision of the statute I have quoted. Under those circumstances, I agree with the view expressed by Henry J. in Linsley v. Co-operators Insurance Association of Guelph,[1975] I.L.R. 1206 at p. 1210. But, apart altogether from the contra proferentem rule, it is sound construction of a contract to construe the provision thereof broadly and the exclusions thereof narrowly.

[27]         Further, in July v. Neal (1986), 32 D.L.R. (4th) 463 (Ont. C.A.), at 469; 57 O.R. (2d) 129, at 135, the majority judgment expressed support for the notion that in cases of doubt, statutory provisions should be interpreted in the insured’s favour:

… Insurance policies are statutory contracts and the wording of the terms as in the instant case normally are not the words of the insurer but the words of the statute or of the regulation. To such terms the contra proferentem rule does not apply. However, the insurance industry is consulted and does have input with regard to legislation affecting the industry. The individual insured has none. His role is to pay the premium for the expected indemnity. It appears to me that if there is doubt in the legislation establishing and governing the cover, and there are two possible interpretations of any aspect of the cover, the one more favourable to the insured should govern.

[Citations omitted.]

[28]         July was cited approvingly in Somersall v. Friedman, 2002 SCC 59, both in the majority judgment of Iacobucci J. at para. 47, and in the minority decision of Binnie J. at para. 90.

[29]         Accordingly, if I were to have any doubt as to the legislative intent behind the relevant sections of the Act and the Revised Regulation, I would resolve that doubt in favour of the insured.

Law

[30]         In their arguments, counsel cited a great number of cases involving consideration of what constitutes use or operation of a motor vehicle, in the context of both first-party accident benefit coverage and third-party legal liability insurance. The analysis found in the older cases, in my respectful view, has largely been supplanted by the reasoning of the Supreme Court of Canada in two decisions released on the same day, both of which were written by Binnie J.: Vytlingam (Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46) and Herbison (Lumbermans Mutual Casualty Co. v. Herbison, 2007 SCC 47).

[31]         With that caveat, I must also say that I have throughout my deliberations been mindful of a comment made by Southin J.A. in Paulus v. Robinson (1991), 60 B.C.L.R. (2d) 116, 84 D.L.R. (4th) 756 (C.A.):

The word "use" as a verb has so many shades of meaning that to consult the dictionary is of no help. Nor, for that matter, does one get much help in answering the question from the many authorities cited by counsel arising on different facts, many of which have to do with the construction of exclusion clauses in insurance policies.

[32]         Both Vytlingam and Herbison deal with the application, to liability insurance cases, of a two-part test for “use and operation” first formulated by Major J. in Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405. In both cases, the Ontario Court of Appeal had found in favour of the injured plaintiffs, and the Supreme Court of Canada reversed, holding in favour of the insurer.

[33]         The background to the claim of the Vytlingams is set out at paragraph 2 of the Supreme Court of Canada’s decision:

The respondents, who are Ontario residents, were motoring northwards along Interstate 95 near Fayetteville, North Carolina, when their vehicle was struck by a large boulder dropped from an overpass by two local thrill seekers, Todd Farmer and Anthony Raynor, who were high on alcohol and drugs. The respondent Michael Vytlingam received catastrophic injuries as a result of the crime. His mother Chandra and his sister Suzana Vytlingam suffered serious psychological harm. Farmer and Raynor were prosecuted, convicted and received substantial prison sentences.

[34]         Farmer was not adequately insured. The wording of the underinsured motorist coverage in the Vytlingams’ policy entitled them to claim from their own insurer for indemnity for the amounts they were “legally entitled to recover from an inadequately insured motorist” as damages in respect of injury “arising directly or indirectly from the use or operation of an automobile”.

[35]         The background to the claim of Mr. Herbison is neatly summarized in that judgment’s opening sentence:

Can it be said that when a hunter steps away from his pick-up truck under cover of darkness, leaving the engine running, and negligently shoots at a target he cannot see 1,000 feet away, and hits a companion in the leg thinking him to be a deer, that the injury arose “directly or indirectly from the use or operation” of the insured truck within the meaning of s. 239(1) of the Insurance Act, R.S.O. 1990, c. I.8?

[36]         The decisions of the Court of Appeal in these two cases – affirming the decision of the motions judge in Vytlingam, but allowing the appeal in Herbison – had turned on the aforementioned two-part test set out in Amos at p. 415:

17. In the same way, while s. 79(1) must not be stretched beyond its plain and ordinary meaning, it ought not to be given a technical construction that defeats the object and insuring intent of the legislation providing coverage. The two-part test to be applied to interpreting this section is:

1. Did the accident result from the ordinary and well-known activities to which automobiles are put?

2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

This two-part test summarizes the case law interpreting the phrase “arising out of the ownership, use or operation of a vehicle”, and encompasses both the “purpose” and “causation” tests posited in the jurisprudence.

[Emphasis in original.]

[37]         (The Supreme Court of Canada noted at para. 11 of its decision in Vytlingam the potential difficulty arising from use of the words “result from” in the first branch of the test, in that it implies an element of causation. The Court states that the difficulty is to be avoided by substituting in the first branch of the Amos test the phrase, “Did the accident occur in the course of the ordinary and well know, etc.”)

[38]         In Vytlingam, the majority of the Court of Appeal had held that the first branch of Amos – the “purpose test” – was met by the fact that the two tortfeasors, Farmer and Raynor, had used Farmer’s vehicle to transport them and the rocks they used to the overpass. As the motions judge had held, transporting goods is a common and ordinary use of a vehicle. The second branch – the “causation test” – was held to have been satisfied by the finding that the use of Farmer’s vehicle was not merely incidental or fortuitous, but was essential both to the transporting of the boulders to the overpass, and to the tortfeasors’ escape.

[39]         Similarly, in Herbison the majority of the Court of Appeal had held the purpose test to have been satisfied by the fact that the hunter who had discharged his rifle, Mr. Wolfe, had used his truck to travel to the hunting site; had needed to use his truck to drive across a field, as he was partially disabled; and had, though not intentionally, made use of his vehicle headlights to illuminate the scene. These were all held to be ordinary uses of a truck. The use of the truck was more than merely incidental, and created a causal relationship sufficient to satisfy the causation test.

[40]         In both these cases, the Supreme Court of Canada held that the Court of Appeal’s application of the purpose test had been appropriate, but found fault with its application of the causation test. In Vytlingam, it held, the focus ought to have been on “whether the chain of causation linking the claimed loss or injuries to the use and operation of [the tortfeasor’s] motor vehicle, which is shown to be more than simply fortuitous or ‘but for’, is unbroken” (at para. 12). Binnie J. stated:

30 While the use of Farmer’s car “in some manner” contributed to Farmer’s ability to commit the tort that caused the Vytlingams’ injuries, such contribution does not mean the tort was committed in his capacity as an at-fault “motorist” within the meaning of the OPCF 44R endorsement. In the words of Rand J. in Stevenson v. Reliance Petroleum Ltd., [1956] S.C.R. 936, “the question is whether we have . . . a severable activity” (p. 940). In the present case rock throwing was an activity entirely severable from the use or operation of the Farmer vehicle.

35  … As stated earlier, coverage under the OPCF 44R is dependent on the Vytlingams being able to demonstrate that their claim arose from the ownership of, or directly or indirectly from the use or operation of the Farmer vehicle. It is not enough to demonstrate that “but for” Farmer’s car the tort could not have been committed in the way that it was. To suggest that any time a car is used to transport people to the scene of a tort or a crime is sufficient to engage “inadequately insured motorist” coverage stretches the intended coverage until it snaps. The trial judge found that “but for” Farmer’s car the tortfeasors could not have transported the rocks weighing 27 and 30 pounds to the scene of the crime, but the insurer’s liability turned on the nature of the tort not on the size of the rocks.

36 The claimant argues that the car was “integral” to this whole operation which was planned to include its use, but the test is concerned with the elements of the tort itself, which here consisted of dropping the rocks from a highway overpass, not transporting rocks across the countryside. As it was put by appellant’s counsel, “[n]o amount of carrying rocks all over the country for whatever purpose gives rise to one iota of civil liability. Liability comes from dropping those rocks” (transcript, at p. 9).

37 The claimant also puts reliance on the use of the car to escape the crime scene, but by that time the tort giving rise to the liability was complete. The car-related activities are severable from the tort. The fact that the word “indirectly” appears in the OPCF 44R is not sufficient to overcome the fact that the tort was an intervening event wholly “severable” from the use and operation of the Farmer vehicle.

[41]         In Herbison, Binnie J. stated:

10 … Can it be said that Wolfe’s negligent shooting was fairly within the risk created by his use or operation of the insured truck, or did the use of the truck merely create an opportunity in time and space for the damage to be inflicted, without any causal connection direct or indirect to the legal basis of Wolfe’s tortious liability? Clearly, I think, the latter is the case. …

11 In my view, Cronk J.A. was correct to uphold the finding of the trial judge that the shooting was an act independent of the ownership, use or operation of Wolfe’s truck. The approach taken by the majority did not give adequate weight to Wolfe’s separate, distinct and intervening act of negligence in firing the rifle at a target 1,000 feet away that he could not see, and which turned out to be the unfortunate Mr. Herbison. As the Ontario Court of Appeal remarked in Alchimowicz v. Continental Insurance Co. of Canada (1996), 37 C.C.L.I. (2d) 284, “[a]s liberally as one may choose to interpret legislation which provides benefits to persons who are injured, it must be remembered that this is automobile legislation” (para. 9). Amos itself rejected a simple “but for” test. In para. 21, Major J. quoted with approval from Kangas v. Aetna Casualty & Surety Co., 235 N.W.2d 42 (1975), where the Michigan Court of Appeals stated, at p. 50:

. . . there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. [Emphasis added in Herbison.]

14 … It is simply not enough to find that the use or operation of the tortfeasor’s motor vehicle “in some manner contributes to or adds to the injury” (Amos, at para. 26, cited by Borins J.A., at para. 105). While I agree with the Ontario Court of Appeal that the addition of the “directly or indirectly” language to s. 239 relaxed the causation requirement, nevertheless, some causation link must be found and it must constitute a link in an unbroken chain. I agree with the dissenting judgment of Cronk J.A. that here the source of Wolfe’s liability to the Herbisons was a tort quite independent of the use and operation of his truck.

[42]         In addition to those two decisions of the Supreme Court of Canada, one other British Columbia decision may be of some relevance, the decision of Chamberlist J. in AXA Pacific Ins. Co. v. Elwood, 2000 BCSC 1248. This was a petition seeking declarations as to a homeowner insurer’s duty to defend its insured in liability actions arising out of a single-vehicle accident. It was alleged in the underlying action that the vehicle operator, one Garcia, had lost control through the negligent act of her passenger, Elwood (the insured), “in her deliberate, intentional, and careless moving or pulling or bumping of the steering wheel of the said motor vehicle” while Garcia was operating it. The insurance policy excluded coverage for claims arising from the ownership, use or operation of vehicles.

[43]         Being mindful of the concern that a liability insurer, whose duty to defend is to be determined with reference to the pleadings, might be at the mercy of the individual who drafted the pleadings, Chamberlist J. invoked “the so-called ‘underlying facts exception’” and looked beyond the pleadings to statements made by Elwood and answers given by her and by Garcia on examination for discovery in the underlying action. Those materials revealed a conflict in the evidence of Garcia and Elwood as to whether Elwood’s grabbing of the steering wheel was prompted by Elwood’s belief that they were going to collide with another vehicle; Elwood said that a collision was imminent, whereas Garcia denied the presence of another vehicle and said that Elwood had grabbed the wheel for no reason. Chamberlist J. proceeded on the basis that whichever was the case, Elwood had intended to alter the path of the Garcia vehicle. He held that Elwood’s actions “constituted a use and operation of the vehicle”, and that the insurer was not obligated to defend Elwood.

Positons of the Parties

[44]         Putting aside the submissions on the extensive series of cases provided to me, many of which deal with different statutes or different insurance policy wordings, the parties’ positions, simply put, are as follows.

[45]         The plaintiff says that indemnity may be provided to the estate of Hearne under his insurance on the vehicle he owned – his owner’s certificate. Alternatively, it may be provided under the plaintiff’s owner’s certificate, Hearne having been using the plaintiff’s vehicle at the time of the accident – that is, having been making use of it – as a passenger. The definition of an “insured” under the Act and the Revised Regulations is not restricted to drivers. Hearne was a passenger of the vehicle, and his liability to the plaintiff arises directly out of a negligent act committed by him as a passenger.

[46]         The plaintiff further says that this interpretation is sound for reasons of public policy. One means of limiting the incidence of impaired driving is to encourage persons who will be drinking alcohol to have a designated driver who will refrain from alcohol consumption; there is obviously a significant social interest in promoting the use of designated drivers. It is foreseeable that impaired persons may behave foolishly while being driven by a designated driver, and in doing so could distract the driver or interfere in operation of the vehicle. Injury to the designated driver might result. In such a situation, to refuse to extend liability coverage to an impaired passenger on the grounds that his or her use of the vehicle as a passenger is not “use” within the meaning of the Revised Regulation would potentially leave an injured designated driver without any means of obtaining compensation.

[47]         The defendant says that Hearne’s act of grabbing the steering wheel is severable from his role as a passenger. His negligence, it is argued, was not a “motorist tort”. The causation test in Amos is therefore not satisfied.

Discussion

[48]         First – though it makes no difference to the outcome – I reject the plaintiff’s contention that the estate of Mr. Hearne can obtain indemnity by virtue of Mr. Hearne having been an insured under his own owner’s certificate. Section 63(a) of the Revised Regulations does use the indefinite article, defining an insured as a person named in an owner’s certificate. But it does not refer to any owner’s certificate. Reading Part 6 of the Revised Regulation as a whole, the scheme of insurance created thereunder clearly envisages the owner’s certificate referenced in s. 63 to be the certificate on the at-fault vehicle, not any certificate on which an at-fault driver may be named. I agree with the defendant’s submission that the plaintiff’s interpretation of s. 63(a) would lead to an absurdity: having one’s own owner’s certificate would entitle one to the status of an insured in respect of any motor vehicle, without that vehicle’s owner’s consent, and without having paid any extra premium. I further agree that indemnity to an insured operating a motor vehicle not described in an owner’s certificate issued to the insured is extended by operation of s.65 of the Revised Regulation. To provide indemnity to such an insured through the plaintiff’s interpretation would render s. 65 redundant.

[49]         Second, I would not find – and it is not contended by the plaintiff – that Mr. Hearne’s grabbing of the steering wheel constituted operation of the vehicle, with the meaning of s. 64 of the Revised Regulation. I cannot find on the evidence that Mr. Hearne probably intended to take control or intended to aim the vehicle in any particular direction. Ms. Felix’s impression is that in the first two incidents of him grabbing the wheel, Mr. Hearne was simply intending to scare her. Although the final incident was different in that the movement of the vehicle was affected, there is not sufficient evidence for me to infer that Mr. Hearne meant to alter its course. His action interfered with the operation of the vehicle by Ms. Felix, but was not operation in itself.

[50]         If I were to consider ss. 63 and 64 in isolation, I would find that Mr. Hearn, as a passenger, was making use of the vehicle, and was doing so with the consent of the owner, Ms. Felix. The word “uses” may normally imply some degree of positive action on the part of the “user”, but the word is general enough to cover the passive use of a vehicle by a passenger as a means of conveyance. Read broadly, as a coverage provision of an insurance plan, Mr. Hearne’s conduct falls within the scope of those sections.

[51]         I would find that this interpretation of those sections of the Revised Regulation is consistent with both the purpose test and the causation test as stated in Amos and reformulated in Vytlingam. Ms. Felix’s vehicle was being used for a common, usual purpose. Mr. Hearne’s actions were more than incidentally related to his use of the vehicle: he could only interfere with the operation of the vehicle in the manner in which he did while being a passenger, and his negligent conduct was directed towards an essential mechanism of the vehicle.

[52]         The defendant argues that the grabbing of the wheel is severable from Mr. Hearne’s status as a passenger. It is fair to say that the type of misconduct Mr. Hearne engaged in is not necessary to the role of being a passenger. That objection, however, may equally apply to some forms of negligence on the part of a driver – for example, operating a handheld smart phone while driving – and yet no one would contend that liability for such driver actions is not covered. Mr. Hearne’s conduct cannot be severed from the fact that he was a passenger; his conduct is intimately connected with his position in the vehicle and his access to the wheel. His irresponsible action is not independent of the vehicle.

[53]         The defendant’s interpretation of the phrase “use or operation of a vehicle” is contrary to the reasoning in Elwood. The defendant submits that the authority of Elwood is “suspect given application of the misunderstood ‘relaxed causation test’ from Amos”. I find nothing in that judgment’s application of the purpose test and the causation test to be inconsistent with Vytlingam and Herbison.

[54]         I also find much force in the plaintiff’s argument as to the potential consequences of the interpretation urged by the defendant for designated drivers. ICBC and the driving public who pay insurance premiums to it have much to gain from the intervention of designated drivers who reduce the risk of bodily injury and property damage resulting from impaired drivers. To deprive such drivers of a means of compensation when injured through the negligence of an inebriated passenger is to shift the risk of loss to them entirely. This would appear to be a powerful disincentive to anyone acting as a designated driver, when there was any risk of a passenger acting irresponsibly.

[55]         However, these comments as to the characterization of a passenger as one who is using a vehicle are, as I stated at the outset, based on viewing ss. 63 and 64 of the Revised Regulation in isolation. It would be improper for me to reach a conclusion as to the scope of coverage afforded by those sections in that manner, without considering the Revised Regulation as a whole. A proper analysis of the provisions in issue requires that I consider the impact of any particular interpretation on the legislative or regulatory scheme in its entirety.

[56]         Looking at the Revised Regulation as a whole, I am – unfortunately – led to conclude that the foregoing interpretation of ss. 63 and 64 is incompatible with s. 66. The latter extends indemnity explicitly to a passenger who causes injury or death to a person not occupying the vehicle, by operating any part of the vehicle while the vehicle is being operated by an insured. On its face, this section would appear to be intended to encompass situations such as a passenger opening a door and thereby interfering with a passing cyclist. If, however, s. 64 were interpreted so that any passenger is deemed to be using the vehicle, s. 66 would be redundant; all passengers would be covered for liability arising out of their use, and there would be no need for the Revised Regulation to include a separate coverage extension.

[57]         It is a general principle of statutory interpretation that there is a presumption against tautology; the legislature – or, in the case of a regulation, the governor in council – intends each provision to be given effect. As Professor Ruth Sullivan in Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont: LexisNexis, 2008) says at p. 210:

It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.

… every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant.

To violate that principle would be to construe the statutory instrument in a manner contrary to the legislative intent.

[58]         While the Revised Regulation does, in effect, create a policy of liability insurance, and while, as I have found, it is appropriate to apply to the Revised Regulation the interpretive rule that coverage is to be construed broadly, the rules of interpretation of statutory instruments must be paramount. Statutes are to be construed liberally, but the construction and interpretation must be consistent with the evident legislative intent. It appears to have been the intention of the governor in council not to extend indemnity to vehicle passengers except those who may be found to have been operating a vehicle with consent, or, in the limited case of injury to a person who was not an occupant, to have been operating a part of the vehicle within the meaning of s. 66.

[59]         For that reason I am led to the conclusion that Mr. Hearne, as a passenger in the plaintiff’s vehicle, was not engaged in use of the vehicle within the meaning of s. 64. The defendant is under no obligation to indemnify the Hearne estate, and the plaintiff’s claim must therefore fail.

[60]         The consequence of this interpretation as regards designated drivers is one which some may find disturbing. If that consequence was unintended, that is a matter for consideration by the government.

“A. Saunders J.”