IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100427

Docket:
44043

Registry: Vernon

Between:

Thomas
Pavlovich

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before: The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
In this action for disability benefits, the
issue is whether the plaintiff was an employed person when he was injured in a
motor vehicle accident. To be an employed person for the purpose of qualifying
for disability benefits, the plaintiff must have worked for 6 of the 12 months
immediately preceding his injury. The plaintiff asserts that because he had
worked approximately 1,100 hours in the preceding year he must be taken to have
worked for at least 6 of the previous 12 months. The defendant argues that the
plaintiff accumulated those hours of work over a period of only 20 or 21 weeks
and that the plaintiff cannot, therefore, be said to have worked for 6 of the
previous 12 months.

The Facts

[2]            
On May 31, 2008 the plaintiff was a passenger in
a B.C. licensed and insured motor vehicle when that vehicle went off the road
and overturned. As a result of that accident, the plaintiff sustained a strain
of the soft tissue injuries in the region of his upper and lower back.
According to the only doctor’s report in evidence, the plaintiff’s injuries
temporarily totally disabled him from his regular employment as a journeyman
carpenter from the date of the accident until mid‑November or mid‑December
2008.

[3]            
The parties agree that when the motor vehicle
accident happened the plaintiff was not engaged in employment. According to the
three records of employment entered into evidence, the plaintiff had the
following paid employment during the 12 months preceding the May 31, 2008 motor
vehicle accident:

[4]            
In addition, the plaintiff performed renovations
and repairs on a rental home that he and his wife owned. The plaintiff worked
on those renovations 10 to 12 hours per day, 7 days per week, between March 7,
2008 and April 24, 2008. The renovations were made necessary by damage inflicted
on the residence by previous tenants. The plaintiff’s intention in carrying out
those repairs was to sell the house. After having owned the home for 10 years,
the plaintiff and his wife realized a profit of approximately $80,000 when they
sold the house on March 31, 2009.

[5]            
The plaintiff deposed that his usual employment
as a journeyman carpenter involved building scaffolding in Alberta’s oil
fields. He deposed that this work required heavy lifting and overhead work. The
plaintiff swore that as of January, 2010 he is "unable to return to work
due to my injuries…". The plaintiff has adduced no medical evidence to
support this assertion.

[6]            
The plaintiff has demanded that the defendant
pay him temporary total disability benefits from the date of the motor vehicle
accident to the present. The plaintiff has brought this action to summary
trial. He seeks a declaration that he was an employed person when the motor
vehicle accident happened, a declaration that he was disabled from his
employment by reason of injuries sustained in a motor vehicle accident and that
he continues to be so disabled, and a declaration that he is entitled to
payment of disability benefits pursuant to s. 80 of the Insurance
(Vehicle) Regulation under the Insurance (Motor Vehicle) Act.

[7]            
The defendant has declined to pay temporary
total disability benefits to the plaintiff on the ground that he was not an
employed person when the accident happened.

The Law

[8]            
For the purpose of entitlement to temporary
total disability benefits under Part 7 of the Insurance (Vehicle) Regulation
of the Insurance (Vehicle) Act, the claimant must be an "employed
person". An "employed person" is defined by s. 78 of the Regulation
and means a person:

(a) who, on the date of an accident for
which a claim is made, is employed or actively engaged in an occupation for wages
or profit, or

(b) who

 …

 (ii)        for
any 6 months during the period of 12 months immediately preceding the date of
an accident for which a claim is made is employed or actively engaged in an
occupation for wages or profit.

[9]            
As noted, the parties agreed that the plaintiff
was not employed on the date of the accident. Accordingly, if the plaintiff is
to qualify for temporary total disability benefits, it must be on the basis of
his being an "employed person" within the meaning of subsection (b)
of the definition.

Plaintiff’s Position

[10]        
The plaintiff submits that the words "any 6
months" in the definition of employed person must be interpreted in a
flexible and contextual manner which takes into account the realities of the
many and various ways that people carry out their working lives. He points out
that no one would think that the phrase means that to qualify as an employed
person the claimant must have worked continuously, without let up or respite,
for 6 months out of the previous 12. He asks if continuous work, 24 hours a
day, 7 days per week, for 6 months is not what the legislation requires of a
claimant, then what amount of work will satisfy the “employed person” test?

[11]        
The plaintiff says that the answer to that
question is found in the convention that full‑time work requires 37.5
hours of labour per week, or approximately 1,950 hours per year. According to
the plaintiff, anyone who works half of that total is a person who must be
taken to have worked for the equivalent of 6 months, and such a person must be
an “employed person” for the purposes of entitlement to temporary total
disability benefits.

[12]        
The plaintiff says that the hours he worked for
his three employers in 2007 and the hours he worked on his rental house add up
to approximately 1,168 (give or take, depending on how many days he renovated
for 10 or 12 hours or some time in between). That total is more than the number
of hours a conventional employee would labour for half a year in a 37.5 hour
per week job. The plaintiff argues that he did, therefore, work for 6 of the 12
months immediately preceding the accident and that he is entitled to temporary
total disability benefits.

Defendant’s Position

[13]        
The defendant argues that the plaintiff’s effort
to renovate his house was not employment or an occupation for wage. The
defendant says that the plaintiff has adduced no evidence that he renovated the
house in order to gain a profit. According to the defendant, then, the house
renovation cannot count towards the plaintiff’s credit as an employed person.

[14]        
Even if the renovation work was employment
within the meaning of the Regulation, the defendant says that the
plaintiff still did not work enough to meet the Regulation’s test for an
employed person. That is because the plaintiff worked for employers for a total
of 14.5 weeks and for himself for another 7 weeks, making a total of 21.5 weeks
in the year before the accident. The defendant points out that there are 52
weeks in a year, and, since 6 months equals one-half of a year, there must be
26 weeks in any given 6‑month period. The plaintiff only worked for 21.5
weeks, not 26, and so, according to the defendant, he cannot be said to be an
employed person for the purposes of the Regulation.

Discussion

[15]        
The plaintiff is correct when he says that the Regulation
does not require a person to be continuously and unendingly engaged in
employment for 6 months in order to qualify as an employed person. But this
does not boot the plaintiff’s position much. That is because the proposition
itself is absurd. Common sense suffices to refute it; it is not necessary to
adopt the plaintiff’s interpretation of the Regulation to understand
that the Legislature did not intend for “employed person” status to be
conferred only on those persons who work all day and all night without cease
for 6 months at a time (if any such exist, which is doubtful).

[16]        
In short, the plaintiff’s statement of the
obvious does not demonstrate that that his interpretation of subsection (b) of
the Regulation is preferable to the defendant’s.

[17]        
The plaintiff’s interpretation of the Regulation
suffers several flaws. One such is the fact that in practice it would result in
absurdities of its own. For example, if the plaintiff has it right that under
subsection (b) “employed person” status may be achieved by working more than
1,000 hours in the 12 months preceding an injury, one person might accumulate
all the necessary hours by working intensely for only 2 or 3 months, while
another person might never qualify because of his part‑time employment
and work for only a few hours every week. The part‑timer might work for,
say, 11.9 months immediately before his injury and be laid off the day before
his accident; yet, because of his part‑time status, he may not have
accumulated the 1,000 hours the plaintiff’s interpretation would require of him
before he could be an “employed person” under subsection (b). This would lead
to the absurd result of a part‑time person working up to the day before
an accident not being employed for the purposes of the Regulation, while
a person who worked like the devil over only 2 months would qualify for
benefits. This result would be directly contrary to the plain meaning of the
words of the Regulation.

[18]        
Another flaw in the plaintiff’s interpretation
is its reliance on counting hours to qualify as an employed person. This might
theoretically work if everyone toiled, as the plaintiff did, for an hourly
wage. That is not, however, the way things are. Some people are paid by the
task, as in a seamstress’s piece‑work, some are paid a salary and no
account is kept of the hours they work, some are paid on pure commission and
the hours they work may bear no relation at all to their income and so the
number of hours they work are irrelevant. Counting hours of work is simply not
a practical way to fashion the broad‑based and universal test for
qualification for disability benefits under the Regulation.

[19]        
A much more sensible and practical
interpretation, and the interpretation that is consistent with the Regulation’s
plain language, is the interpretation that the defendant propounds. The Regulation
stipulates that to be an employed person the claimant must have been employed
for 6 of the 12 months immediately preceding the injury. It is the being
employed, not the amount of work done, during those 6 months that counts. Put
another way, a person who works part‑time for 6 months is, for the
purposes of the Regulation, no less employed that the person who works
18 hours a day for the same period.

[20]        
I find that whether one excludes or includes the
plaintiff’s house renovation work, the arithmetic of the plaintiff’s situation
does not yield enough weeks of work for him to be said to have been employed
for 6 of the 12 months before the accident.

Conclusion

[21]        
The plaintiff’s motion for summary judgment is
dismissed.

[22]        
I am now the trial judge of this matter and I
will be seized of all further interim or final applications and of the trial of
any issues that remain between the parties.

[23]        
In the event that the parties are unable to
resolve costs on their own, they have liberty to make an application to resolve
that issue.

“P.J. Rogers J.”
The Honourable Mr. Justice Rogers