IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Morican v. Insurance Corp. of British Columbia, |
| 2010 BCSC 1024 |
Date: 20100721
Docket: 08 4959
Registry:
Victoria
Between:
Mary Morican
Plaintiff
And
Insurance
Corporation of British Columbia
Defendant
Before: The Honourable Madam
Justice Loo
Reasons for Judgment
Counsel for the Plaintiff: | M. J. Velletta |
Counsel for the Defendant: | M. J. Hargreaves |
Place and Date of Hearing: | Victoria, B.C. May 12, 2010 |
Place and Date of Judgment: | Victoria, B.C. July 21, 2010 |
The Issue
[1]
The issue for determination on this Rule 18A application is whether on
November 24, 2006, the plaintiff was an insured for the purposes of Part 7 of
the Regulation made pursuant to the Insurance (Motor Vehicle) Act,
R.S.B.C. 1996, c. 231. The defendant Insurance Corporation of British
Columbia (ICBC) contends that the plaintiff was not an insured within the
meaning of s. 78 of the Revised Regulation (1984) Under the Insurance
(Motor Vehicle) Act, B.C. Reg. 441/83.
Overview
[2]
On November 24, 2006 the plaintiff Mary Morican was completing a
teaching contract in Kugluktuk, Nunavut when she was struck and seriously
injured by an unlicensed truck driven by an unlicensed driver.
[3]
Ms. Morican planned to retire on December 19, 2006 (a few days
before she turned 65 years old) and return to Victoria, where she and her
husband, Robert Rollins had their home. Mr. Rollins had already returned
to Victoria in August 2006 for cancer treatment.
[4]
On November 24, 2006 Ms. Morican was the holder of a British
Columbia drivers license. If she can establish that she was ordinarily
resident in British Columbia at the time of the accident, then she is an
insured pursuant to s. 78(c.1).
[5]
At the material time, Mr. Rollins was the owner of a motor vehicle
in Victoria and the holder of an owners certificate. Alternatively, if Ms. Morican
can establish that she was a member of her husbands household at the time of
the accident, then she is an insured pursuant to s. 78(c).
[6]
ICBC agrees that Ms. Morican and her husband were in a committed
long term relationship, common law spouses even while living apart, that Ms. Morican
was historically a member of her husbands household, and that they intended
to live together again after December 19, 2006 when she planned to leave Kugluktuk
and return to Victoria.
[7]
However, ICBC contends that on the date of the accident, while Mr. Rollins
was ordinarily resident in Victoria, Ms. Morican was ordinarily resident
in Kugluktuk and not a member of her husbands household.
The Evidence
[8]
There appears to be no dispute on the following evidence.
[9]
Ms. Morican was born and educated as a teacher in England. She
immigrated to Canada in 1968 and has two adult children. She and Mr. Rollins
began dating in 1985 when they were both school teachers at a private school in
Winnipeg. They started living together in 1988. They lived together for twenty
years until Mr. Rollins death from cancer at the age of 55 on August 16,
2008.
[10]
Ms. Morican and her husband moved to Victoria in 1990 and both
taught at St. Michaels University School (SMUS), an independent school in
Victoria.
[11]
In 1993 they bought their house, a townhouse at 444 Michigan Avenue in
James Bay, Victoria. They planned to live out their retirement years in the
townhouse.
[12]
Ms. Morican had cancer in 1980, and in 1999. She fully recovered,
and decided in 2000 (when she was 59 years old) that she wanted to dedicate herself
to teaching in an underprivileged area in Canada. Up until that time, she had
spent most of her teaching career at private schools.
[13]
In 2000 the new territory of Nunavut advertised for teachers. Ms. Morican
applied for and received a teaching contract with the Kugluktuk High School in
Kugluktuk, Nunavut.
[14]
Kugluktuk is a hamlet on the shore of the Arctic Ocean. It is the
westernmost community in Nunavut, approximately one and a half hours by plane
north east of Yellowknife. Kugluktuk has a population of approximately 1,300
and is only accessible by plane or boat.
[15]
Ms. Morican took a one-year leave of absence from SMUS in order to
complete her teaching contract in Kugluktuk. Her husband also took a job as a
teacher at the Kugluktuk High School.
[16]
In 2001 Ms. Morican was offered and accepted another teaching
contract with Kugluktuk High School. She obtained another one-year leave of
absence from SMUS.
[17]
In 2002 she took early retirement from SMUS. She continued to teach in
Kugluktuk on contract positions. Ms. Morican was never offered a permanent
teaching position. It was hoped that the Kugluktuk High School would find a
qualified aboriginal or indigenous person to replace Ms. Morican.
[18]
On August 29, 2006, at the start of the school term, Ms. Morican
gave notice of her resignation from teaching effective at the end of the
semester in December 2006. The couple had learned that Mr. Rollins had
cancer and could not remain in the north due to the thin air and lack of
medical treatment. In addition, Ms. Morican had planned to retire at age
65.
[19]
Except for the bare minimum that Ms. Morican required, the
possessions that she and Mr. Rollins had acquired or taken with them to
Nunavut were barged down the Mackenzie River in late August 2006 (the only way
to transport their possessions to Victoria).
[20]
Mr. Rollins left for Victoria on or about September 23, 2006.
[21]
The tenants in their house in Victoria were given notice and vacated at
the end of October 2006. Mr. Rollins took responsibility for fixing up
the place and they planned to move back into their house when Ms. Morican
returned from Nunavut. She planned to leave Kugluktuk on December 19, 2006 and
fly home to Victoria.
[22]
Throughout their stay in Nunavut, Ms. Morican and her husband
stayed in basic furnished rental accommodation provided by the government for
teachers in Kugluktuk.
[23]
On November 24, 2006 Ms. Morican was walking from her rental accommodations
to Kuglutuk High School when she was struck by a Dodge Ram truck driven by
Lashawna Taipana, a former student of hers. Ms. Taipana was uninsured and
the truck was unlicensed. Ms. Morican sustained life-threatening injuries
and was medivaced by air to the hospital in Yellowknife. She was released from
the hospital on January 8, 2007 and flew from Yellowknife home to Victoria.
[24]
Ms. Moricans examination for discovery evidence discloses that by
the time she was discharged from hospital in January 2007 she could not have
returned to the government rental accommodation if she had wanted to. Because
she had given notice of resignation effective at some date in December 2006,
the government had moved her out of the rental accommodation, presumably meaning
that whatever bare necessities she had there, were removed.
[25]
In her affidavit, Ms. Morican states:
49. I never saw myself as
a resident of Nunavut. It was always my intention to return to Victoria, it
just took longer than I thought it would. Upon retirement from full-time
teaching I was returning to Victoria to live my retirement years in Victoria.
That is what I was doing in the winter of 2006; I was returning to my home in
Victoria. My employer certainly never saw me as a permanent hire at the school;
my contracts with Kugluktuk High School were always temporary contracts.
[26]
In a portion of her examination for discovery on which ICBC relies, Ms. Morican
describes herself as a visitor in Kugluktuk:
Q So, I take it that you and your husband rented
out your property at No. 6, 444 Michigan while you were up in Nunavut?
A Yes, but always
with a three-month clause in the agreement that we could take the property any
time we wanted it back, because we always knew that we were visitors in
Kugluktuk.There were only 50 about 50 whites in the community. As a guest,
its the R.C.M.P. and nurses and some teachers in a community of nearly 1,300.
[27]
While Ms. Morican and her husband were in Nunavut they maintained
the following connections to Victoria:
1) They
returned home to Victoria whenever they could afford to make the trip (in terms
of money and time). They normally returned to Victoria every summer, and once
they returned at Christmas. However, it is expensive (approximately $5,000
round trip for both of them) to make the trip, and it takes two days in each
direction. Generally Ms. Morican and her husband could not afford to go
down to Victoria more than once a year, although they would have liked to have
returned more often.
2) They
rented out their Victoria townhouse to yearly tenants. A clause in rental
agreement provided that the tenants would vacate on three months notice, so
that they could move back into the house when they wanted.
3) While
their house was rented, Ms. Morican employed a cleaner and gardener to
maintain the house. She and her husband made considerable upgrades and updates
to the house because it was where they planned to spend their retirement years.
They employed a local handyman to deal with repairs, and had a friend in
Victoria to act for them if there were problems with the house or the tenants.
The house insurance was obtained through an agent of AON in Victoria.
4) They
continued to pay strata fees and property taxes as usual. Ms. Morcian was
even nominated to be a member of their strata council, although she did not end
up serving.
5) They
did not bring their household possessions with them to Kugluktuk. They had
approximately 10,000 pounds of possessions stored at AMJ Campbell in Victoria at
a cost of $25,300. They also paid $4,426 for a storage locker to store
possessions while they were in Kugluktuk. Possessions that were too valuable to
put into storagesuch as an oil painting, antique chair, and silver collectionwere
kept with friends.
6) They
maintained a mailing address in Victoria for some items, and had the mail
forwarded to Nunavut from Victoria.
7) Ms. Morican
maintained a Victoria area cellular telephone while she was in Nunavut, and
used a friends Victoria house telephone number as a contact number when she
needed it.
8) Ms. Morican
retained her doctor, dentist, eye doctor, and psychiatrist in Victoria. All of
her prescription medications were mailed to her from a pharmacy in Victoria. Her
tamoxifen medication was sent to her from the B.C. Cancer Clinic in Victoria.
9) Ms. Morican
held a BC drivers license continuously from the time she came to British
Columbia in 1990 until the present. Mr. Rollins likewise maintained a BC drivers
license. They maintained a car in Victoria which was insured by both of them. They
kept the vehicle at a friends home in Victoria so they could drive it when
they returned to Victoria every summer, and the one time they returned for the
Christmas holiday.
10) All of their
banking, even while in Nunavut, was through the Royal Bank of Canada branch at
University Heights shopping mall in Victoria (RBC). Ms. Morican
regularly e-mailed her two advisors at RBC, as well as her investment advisor
at RBC Dominion Securities in Sidney.
11) They
maintained two safety deposit boxes at RBC.
12) Ms. Morican
continued to use her BC credit cards, bank cards, and bank account while she
was in Nunavut.
13) Ms. Morican
never had a Nunavut drivers license, and never drove or owned a vehicle in
Nunavut.
14) Ms. Morican
stayed in contact with SMUS because (before she decided to retire) she planned
to return and teach there after her time in Nunavut.
15) They
bought no real estate in Nunavut and lived only in the government provided
rental accommodations for teachers.
16) On the
advice of her accountant and for tax purposes (a northern allowance) Ms. Morican
listed Nunavut as her place of residence, but noted the Michigan Street address
of their house in Victoria as her mailing address for her tax returns.
[28]
As I indicated earlier, ICBC concedes that historically Ms. Morican
was a member of her husbands household, and that she and Mr. Rollins
fully intended that she would once again became a member of his household after
December 19, 2006 when she left Kugluktuk for Victoria. However, ICBC contends
that as of November 24, 2006 Ms. Morican was residing in a dwelling unit
in Kugluktuk and her husband was residing in a dwelling unit in Victoria: on
November 24, 2006 they were not residing in the same dwelling unit, let alone
ordinarily residing in the same dwelling unit.
Analysis
[29]
Section 79 of the Regulation provides, in part, that the defendant ICBC
will pay benefits to an insured in respect of injury caused by an accident
arising out of the use or operation of a vehicle that occurred in Canada.
[30]
The word insured is defined in s. 78 the Regulation. It is a
multi-branched definition. It is agreed that the only branches of are arguably
relevant are:
Interpretation
78 In this Part:
insured means
(c) a
member of the household of a person named in an owners certificate,
(c.1) an
insured as defined in section 42
,
(c.2) a member of the household of
an insured described in paragraph (c.1)[.]
[31]
Section 42 of the Regulation reads, in part:
42 In this Part:
insured means a resident
named on a drivers certificate and, for the purpose of payment of insurance
money, includes the personal representative of a deceased insured but does not
include a person driving a vehicle exempted under section 43 or 44 of the Act;
resident means a person who is ordinarily resident
in the Province[.]
[32]
The word household is defined in s. 1(1) of the Regulations as
every person ordinarily residing in the same dwelling unit.
[33]
The word ordinarily is defined in the Shorter Oxford English
Dictionary, 6th ed, as follows:
1 In accordance with a rule or established custom;
according to regular practice or occurrence.
2 In the ordinary course
of events; in most cases; usually, commonly.
[34]
There is no dispute that Ms. Morican usually or normally lived with
her husband. ICBC concedes that Ms. Morican and her husband historically
lived in the same household: this is simply another way of saying that Ms. Morican
and Mr. Rollins were normally or usually members of the same household. For
that reason I do not think it is necessary to consider Gray v. Insurance
Corporation of British Columbia (1987), 20 B.C.L.R. (2d) 63 (C.A.), on which
Ms. Morican relies. Nor is it necessary to review in detail Zamburek v.
Westsern Union Insurance Company (1988), 31 B.C.L.R. (2d) 342 (Co. Ct.); or
Derksen v. Insurance Corp. of British Columbia (1995), 17 B.C.L.R. (3d)
86 (S.C.). Counsel for Ms. Morican referred to each of those cases, but in
my view it is sufficient to say that those cases, as must be in the case at
bar, are decided on their own facts. What is important and what Ms. Morican
emphasizes in her evidence are the connections between her, her husband, and BC.
[35]
ICBC relies on Leray v. Insurance Corp. of British Columbia (1996),
25 B.C.L.R. (3d) 260 (S.C.), where Tysoe J. (as he then was) adopted the
settled purpose test from the House of Lords in Shah v. Barnet London
Borough Council, [1983] 1 All E.R. 226 (H.L.). Tysoe J. stated at para. 16:
[16] The leading authorities on the issue of ordinary
residence are Thomson v. Minister of National Revenue, [1946] S.C.R. 209,
and R. v. Barnet London Borough Council, [1983] 1 All E.R. 226 (H.L.) [Shah].
In Thomson, Estey J. commented on the term "ordinary
residence" in the following terms at pp. 231 and 232:
"A reference to the dictionary and judicial comments
upon the meaning of these terms indicates that one is ‘ordinarily resident’ in
the place where in the settled routine of his life he regularly, normally or
customarily lives. One ‘sojourns’ at a place where he unusually, casually or
intermittently visits or stays. In the former the element of permanence; in the
latter that of the temporary predominates."
[36]
The facts in Leray are clearly distinguishable from those in the
case at bar. Ms. Leray was injured in a motor vehicle accident in BC. At
the time she did not have a BC drivers license, but had an Ontario drivers
license. The issue was whether she was ordinarily resident in Ontario in November
1992, when she obtained her Ontario drivers license. The facts of the case are
important:
[2] Ms. Leray graduated from high school in June
1991 in Ontario where she lived with her parents. She worked part-time at a
Delta hotel while upgrading her marks for university qualification, and when
she completed her courses in January 1992, she started to work full-time at the
Delta hotel. She visited British Columbia in April 1992 and enjoyed her trip.
She is a snowboarder and thought it might be fun to come to British Columbia
for a while. Ms. Leray did not have any specific plans for her future. She
made arrangements to work at a Delta hotel in Whistler and she started working
at the Whistler hotel in June 1992.
[3] Ms. Leray had planned to attend college or
university in the fall of 1992 but that changed with her move to Whistler. When
she moved, she didn’t know when she would return to Toronto and she assumed
that she would stay in Whistler for one winter season.
[4] In July 1992 Ms. Leray rented an apartment
with her boyfriend.
[5] In November 1992 Ms. Leray went to Ontario
and stayed at her parents home for two to three weeks. While she was there,
she renewed her Ontario driver’s licence. By that time she had put B.C. licence
plates on the vehicle she had driven from Ontario to British Columbia. She
drove another vehicle back to British Columbia when she returned from her
November stay in Ontario.
[6] Ms. Leray
continued to work at the Whistler hotel. In January 1993 she broke up with her
boyfriend and moved into another accommodation in Whistler. In late February or
early March 1993 Ms. Leray decided to move from Whistler to Vancouver. She
bought a new car on March 11, 1993, and purchased insurance from the Defendant.
[37]
In Shah, Lord Scarman described the settled purpose test for
determining ordinary residence and went on to state at 236:
An attempt has been made in this
case to suggest that education cannot be a settled purpose. I have no doubt it
can be. A mans settled purpose will be different at different ages. Education in
adolescence or early adulthood can be as settled a purpose as a profession or
business in later years. There will seldom be any difficulty in determining
whether residence is voluntary or for a settled purpose: nor will inquiry into
such questions call for any deep examination of the mind of the propositus.
[38]
ICBC also refers to Jacobs v. ICBC, 2000 BCSC 1267. However, I do
not see how the decision assists ICBC in this case. In my view, the decision
only emphasizes that each case must be decided on its facts and circumstances
when deciding where a person is ordinarily resident or ordinarily residing in
the same dwelling unit as someone else.
[39]
In Thomson v. Minister of National Revenue, [1946] S.C.R. 209, Mr. Justice
Rand discussed the meaning of ordinarily resident at 231-32:
A reference to the dictionary
and judicial comments upon the meaning of these terms indicates that one is
"ordinarily resident" in the place where in the settled routine of
his life he regularly, normally or customarily lives. One "sojourns"
at a place where he unusually, casually or intermittently visits or stays. In
the former the element of permanence; in the latter that of the temporary
predominates. The difference cannot be stated in precise and definite terms,
but each case must be determined after all of the relevant factors are taken
into consideration, but the foregoing indicates in a general way the essential
difference. It is not the length of the visit or stay that determines the
question.
[40]
ICBC also refers to Godara v. ICBC, 2008 BCSC 183, but I do not
find the case of much assistance as the facts are so different. Clearly Ms. Morican
is not a person who lives a transient lifestyle with many changes of residence
and employment.
Conclusion
[41]
I conclude that Ms. Morican was not like the young plaintiff in Leray.
Ms. Morican had specific plans for the future. She was only in Kugluktuk for
the purpose of carrying out her work contract and had no intention of settling
in Nunavut. She came from Victoria, was settled in Victoria, owned a house in
Victoria with her husband, kept most of her possessions in Victoria, planned to
return to Victoria to live in the house with her husband after her teaching
contract was completed, and at the time of the accident, all of her and her husbands
belongings (except for her bare necessities) had been barged down the Mackenzie
River so they could be returned to Victoria. Ms. Morican may have been
resident in Nunavut for several years, but at most, she was a temporary
resident of Nunavut, or sojourning in Nunavut. I conclude that she was
ordinarily a resident of BC and ordinarily resided in the same dwelling unit as
her husband.
[42]
Accordingly, I conclude that on November 24, 2006 Ms. Morican was
ordinarily resident in British Columbia, and a member of her husbands
household.
[43]
Ms. Morican is entitled to her costs.
Loo
J.