IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Schoenhalz v. ICBC,

 

2016 BCSC 661

Date: 20160414

Docket: 49165

Registry:
Kamloops

Between:

Trissteen
Schoenhalz

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

Counsel for the Plaintiff:

J.B. Carter
L. Bergerman

Counsel for the Defendant:

J.D. James

Place and Date of Trial/Hearing:

Kamloops, B.C.

September 8 & 9,
2015

Place and Date of Judgment:

Kamloops, B.C.

April 14, 2016



 

Contents

INTRODUCTION. 2

FACTS. 4

LEGISLATIVE FRAMEWORK. 6

ISSUES. 8

POSITIONS. 8

Plaintiff 8

Defendant 9

BURDEN OF PROOF. 9

ANALYSIS. 10

Principles of Statutory
Interpretation. 10

Headings in Legislation. 14

General Interpretation of s. 91. 21

HANSARD. 25

What was the intention of the
legislature when ss. 19.2(1) and (2) were enacted (now s. 91 of the Act)?. 29

DECISION. 34

ORDER. 36

 

INTRODUCTION

[1]           
The plaintiff, Trissteen Schoenhalz (“Ms. Schoenhalz”), seeks a
declaration that she is entitled to an order pursuant to s. 20 of the Insurance
(Vehicle) Act,
R.S.B.C. 1996, c. 231 [Act], that the defendant, the
Insurance Corporation of British Columbia (“ICBC”) pay her $282,992.82 or its
limits. She also seeks her costs, assessed at Scale B.

[2]           
I rendered a judgment cited at Schoenhalz v. Reeves, 2013 BCSC
1196 (“Reasons”), where I granted a judgment in favour of the plaintiff against
Chelsea Reeves (“Ms. Reeves”) in the amount sought against ICBC in this action.
Ms. Schoenhalz was injured in a motor vehicle accident which occurred on May
12, 2007. Ms. Reeves was driving a vehicle owned by the defendant, Brenda
Hammond, in which Ms. Schoenhalz was a passenger. At the time of the accident,
Ms. Reeves was 15 years old and not licensed to drive a motor vehicle. I found
Ms. Reeves negligent in the Reasons. I found that Ms. Reeves did not have the
consent of either Brenda Hammond or her son, Steven Hammond (“Steven”), to
drive the vehicle.

[3]           
The purpose of s. 20 of the Act is to provide a ‘last-resort’ for
compensation to an injured person who obtains a judgment against an uninsured
motorist: McVea (Guardian ad litem of) v. British Columbia (Attorney
General)
, 2005 BCCA 104 at para. 37, and Buxton v. Tang, 2007 BCSC
1101 at para. 7. Ms. Schoenhalz is not insured under s. 20, nor is there the
creation of a contract between Ms. Schoenhalz and ICBC. It simply allows her to
seek the amount of her judgement against ICBC.

[4]           
ICBC does not allege that Ms. Schoenhalz’s claim under s. 20 of the Act
was improperly made. Ms. Schoenhalz swore and filed with ICBC all necessary declarations
to make her claim.

[5]           
At the trial of this action, viva voce evidence was not
presented. Counsel for the parties agreed at a trial management conference that
the evidence would be restricted to the pleadings, the Reasons, the record of
the tort action, and the dates of birth of the relevant participants. It was
agreed that the record would include the evidence in the tort action of Ms.
Schoenhalz, the defendants, Ms. Reeves, Brenda Hammond, and Steven, and the
notices to admit and the replies to the notices to admit in this action.

[6]           
There are no reported cases as to the presentation of evidence to the
court in actions brought pursuant to s. 20 of the Act. Presenting the
evidence in this fashion is analogous to the presentation of evidence pursuant
to s. 76(2) of the Act. Section 76(2) of the Act permits a person
with a judgment against a tort feasor who was covered by third party liability
insurance with ICBC or another insurer to recover up to the limits of the third
party liability insurance policy. Under both s. 20(9) and s. 76(2), the
plaintiff must have a judgment before an action for enforcement can be
commenced. Section 76(2) requires the claim against the insured to be of the indemnity
provided in the insurance policy. Section 20(9) requires that any claim under
this section meets the requirements of the Act and its regulations.

[7]           
The presentation of the evidence as proposed by Ms. Schoenhalz and ICBC
is supported by Collier v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 201 (C.A.), and Global General Insurance Co. v. Finlay,
[1961] S.C.R. 539, in s. 76(2)-like cases. Given the similarity of the
legislative provisions at issue and the pre-requisites to launching such an
action, I find this was the correct way to present the evidence at this trial.

FACTS

[8]           
I will repeat the facts set out by ICBC with some exceptions.

[9]           
Ms. Schoenhalz’s version of the facts does not diverge from those set
out by ICBC, other than to refer to some arguments that I rejected.

[10]       
On May 12, 2007, five teenagers; Ms. Schoenhalz, Ms. Reeves, Steven,
Luke Holman (“Luke”), and Dave Cochran travelled by car in a 1986 Camaro to Dry
Lake Provincial Campground near Tappen for an outing. Luke was driving the
Camaro to their destination.

[11]       
The registered owner of the Camaro was Brenda Hammond.

[12]       
Brenda Hammond had no objections to Steven’s friend, Luke, driving the
Camaro. Luke had a driver’s license and had previously driven the Camaro with
Steven as a passenger. Steven also had a driver’s license.

[13]       
All the occupants of the Camaro who travelled to the lake were friends,
except for Steven and Ms. Schoenhalz. Ms. Schoenhalz and Ms. Reeves were close
friends. Brenda Hammond had met Ms. Reeves briefly, but did not know her.
Brenda Hammond did not know Ms. Schoenhalz.

[14]       
At the time of the accident, Steven was 17 years of age. Luke was older
than Steven; he was almost 20 years of age.

[15]       
At the time of the accident, Ms. Reeves was 15. Steven knew this fact.
Ms. Schoenhalz also knew Ms. Reeves was 15 and did not have a driver’s license.
Ms. Schoenhalz also did not have a driver’s license. Ms. Schoenhalz was born
May 8, 1990; she turned 17 four days prior to the accident.

[16]       
Ms. Reeves testified that she had never driven on a public highway.
However, Ms. Schoenhalz testified that she saw Ms. Reeves drive into her
mother’s driveway with Luke. Luke had his driving license, and Ms. Reeves knew
this.

[17]       
Ms. Schoenhalz testified that she knew a person needed a license to
drive a car.

[18]       
Both Ms. Reeves and Ms. Schoenhalz stated that they thought Steven was
the owner of the car. Ms. Schoenhalz stated that she understood they needed the
permission of the owner to drive the car.

[19]       
After the teenagers reached the campsite, Luke asked Ms. Reeves and Ms.
Schoenhalz to leave because he wanted “smokies”, or hot dogs. Luke did not want
to drive to get them. Luke first handed the keys to drive to Ms. Schoenhalz.
Steven was not present when this occurred, as he had gone to collect firewood.
Ms. Reeves entered the Camaro with Ms. Schoenhalz, who was in the driver’s
seat. However, the Camaro had a standard transmission, which Ms. Schoenhalz did
not know how to operate. Ms. Schoenhalz and Ms. Reeves switched places and Ms.
Reeves drove the vehicle.

[20]       
There was no discussion or concern at the campsite by either Ms. Schoenhalz
or Ms. Reeves as to whether they had consent to drive the Camaro.

[21]       
Luke had put the keys to the Camaro in his pocket when they arrived at
the campsite. Ms. Reeves testified that she thought she have been given
permission by Luke to drive the car. Steven confirmed that Luke was in
possession of the keys when they reached the campsite and he did not ask for
them back. Steven also confirmed that he did not give permission to anyone else
to drive the car.

[22]       
Ms Reeves lost control of the car and it went over a bank. The car
rolled several times. Ms. Schoenhalz was badly injured and suffered third
degree burns to various parts of her body.

[23]       
In her notice of civil claim, Ms. Schoenhalz alleged that the accident
was caused by the negligence of Ms. Reeves. She also alleged that Steven and
Ms. Hammond were negligent in consenting to Ms. Reeves’ operation of the
vehicle.

[24]       
In their response, Ms. Hammond and Steven argued that Ms. Reeves was
operating the vehicle without express or implied consent.

[25]       
In the Reasons, I found that Brenda Hammond did not expect her Camaro
would be driven by an unlicensed driver. She did not express her consent to Ms.
Reeves driving her vehicle: para 181. Steven did not act as Ms. Hammond’s agent
and could not consent to the vehicle being operated by an underage driver:
para. 181. There is no evidence to show that Brenda Hammond permitted anyone
other than her son Steven and his friend Luke to drive the Camaro, or that she
had willingness or an expectation that others would drive the Camaro: para 195.
Brenda Hammond did not implicitly consent to Mr. Reeves driving her Camaro.

[26]       
Alternatively, I stated in the Reasons if Steven was an owner, he did
not consent to Ms. Reeves driving the Camaro: para 196.

LEGISLATIVE FRAMEWORK

[27]       
Section 20(1) and (9) of the Act reads as follows:

Uninsured vehicles

20 (1) In this section:

"claimant" means a
person who alleges that he or she has a right of action against an uninsured
motorist for damages arising from bodily injury to or the death of a person, or
loss of or damage to property, caused by or arising out of the use or operation
of a motor vehicle, but does not include a person who is entitled to bring an
action against the corporation under section 24;

"motor vehicle"
includes a trailer, but does not include

(a) a motor vehicle or trailer in
respect of which there exists proof of financial responsibility given in the
manner provided for by sections 106 to 113 of the Motor Vehicle Act, or

(b) a motor vehicle or trailer
owned by, or by an agent of, the Crown in right of any other province or of
Canada;

"owner", in
relation to a motor vehicle, includes a lessee;

"uninsured motor
vehicle"
means a motor vehicle used or operated or owned by an
uninsured motorist;

"uninsured motorist"
means a person who uses or operates a motor vehicle on a highway in British
Columbia when he or she is not insured under third party liability insurance
coverage that provides indemnity in a prescribed amount, not less than $100 000,
against liability imposed by law arising from bodily injury to or the death of
a person, or loss of or damage to property, caused by or arising out of the use
or operation of a motor vehicle, and includes the owner of a motor vehicle that
is used or operated on a highway in British Columbia when the owner is not so
insured.

…

(9) If the corporation enters into a settlement with a
claimant or a claimant obtains a judgment against an uninsured motorist in
accordance with this section and the claimant has otherwise complied with this
section and the regulations, the corporation may, subject to the regulations,
pay all or part of the settlement or judgment.

[28]       
In denying compensation to Ms. Schoenhalz, ICBC relies on s. 91 of the Act,
which limits recovery to an injured passenger in a vehicle they knew or
ought to have known was being driven without the consent of the owner. Section
91 reads as follows:

Limitation on recovery in relation to stolen vehicles

91 (1) This section applies to a person who

(a) suffered bodily injury, death or loss of or damage to
property that is caused by the use or operation of a vehicle, and

(b) at the time of the accident as a result of which the
bodily injury, death or loss of or damage to property was suffered, was an
operator of, or a passenger in or on, a vehicle that the person knew or ought
to have known was being operated without the consent of the owner, and, in the
case of a leased motor vehicle, the lessee.

(2) Despite the Negligence Act and section 100 of this
Act,

…

(b) a person referred to in subsection (1) is not entitled
to any recovery from the corporation under section 20.

ISSUES

1.    Does s. 91
function such that ICBC bears the burden to prove that Ms. Schoenhalz’s claim
is barred, or does Ms. Schoenhalz have to prove her claim under s. 20 taking s.
91 into account?

2.    Should the Court
look to sources such as the heading to s. 91 and the Handsard debates to
assist it in interpreting s. 91?

3.    Is Ms.
Schoenhalz’s claim to collect her judgement barred by s. 91 of the Act?

POSITIONS

Plaintiff

[29]       
Ms. Schoenhalz argues that ICBC has the burden of proving that her claim
is barred by s. 91. Ms. Schoenhalz submits that she has brought a properly
constituted application for benefits under s. 20 of the Act. Because
ICBC has taken the position that Ms. Schoenhalz’s recovery is limited by the
application of s. 91 of the Act, the burden of proof lies with ICBC to
establish that s. 91 applies.

[30]       
Ms. Schoenhalz argues that the heading to s. 91 should be considered in
its application. She argues that the use of the word “stolen” in the heading
requires an intention to deny the owner possession of the vehicle, which is not
present here. Ms. Schoenhalz also argues that the Handsard debates
relevant to the enactment of s. 91 should be considered.

[31]       
In regard to the application of s. 91 of the Act, Ms. Schoenhalz
argues the issue is the state of mind of herself and Ms. Reeves. She argues
that there is no indication that she knew or ought to have known that the
vehicle was being operated without the consent of the owner. She argues the
question for the Court is not whether Ms. Hammond would have permitted Ms.
Reeves to drive the car had she been asked.

Defendant

[32]       
ICBC’s position is that the onus is on Ms. Schoenhalz to bring her claim
within s. 20, taking into account s. 91 of the Act.

[33]       
ICBC argues that the principles of legislative construction and the general
approach to statutory interpretation apply to any interpretation of ss. 20 and
91 of the Act. ICBC submits that neither the heading to s. 91 nor the relevant
Hansard debates are required to interpret s. 91

[34]       
Pursuant to s. 91 of the Act, ICBC argues that Ms. Schoenhalz cannot
successfully make a claim for compensation pursuant to s. 20 of the Act because
she knew or ought to have known that the vehicle was being operated without the
consent of the owner.

BURDEN OF PROOF

[35]       
As previously stated, Ms. Shoenhalz alleges that ICBC has the burden of
proving that she as a passenger knew or ought to have known the motor vehicle
was being operated without Ms. Hammond’s consent.

[36]       
Ms. Shoenhalz relies on two cases: Chrysler Financial Services of
Canada Inc. v. ICBC,
2011 BCSC 1795, and Bevacqua v. I.C.B.C., 1999
BCCA 553. In both cases there was a contract of insurance. In both cases ICBC
disputed paying the loss.

[37]       
In Chrysler, ICBC alleged that the insured was involved with a
theft of the vehicle at issue. In Bevacqua, ICBC alleged that the
insured caused vandalism to his vehicle. The court held in both cases that the
insured had the obligation of proving the loss fell within the coverage of the
insured. ICBC had the obligation to prove intentional conduct to vitiate the
claim on a balance of probabilities.

[38]       
ICBC argues that the onus is on Ms. Shoenhalz to prove that her claim
comes within s. 20, taking into account s. 91 of the Act. In support of
this position, ICBC relies on Hudson v. Insurance Corp. of British Columbia (1991),
83 D.L.R. (4th) 377, and Derbyshire v. ICBC, 2011 BCSC 170.
These are cases where an insurance agreement existed, and it was the obligation
of the insured to prove that the loss occurred within the risk covered under
that agreement. In Hudson, the vehicle was insured for pleasure. The
loss that the vehicle suffered occurred in a parking lot, where the insured had
left it in order to drive to work in a car pool. The court found that using it
to travel to work and leaving it in the parking lot left the vehicle uninsured.
The onus of proof was on the insured to prove his policy covered the risk.

[39]       
The distinction between these two burdens of proof is set out in Derbyshire:

[13]      The alternative ground
put forward by ICBC, that of s. 96(f) regarding the contribution which it is
said has been played indirectly or directly by the pre-existing degenerative
changes, also does not succeed, and I say so whether we regard s. 96(f) as an
exclusion on coverage in respect of which the onus of proof would be on ICBC,
or whether we regard it simply as a limitation on the scope of coverages
available, in which case the onus would be on the plaintiff.

[40]       
I reject these arguments. These burdens of proof are limited to
situations where there is an insurance policy and a claim is made under the
insurance policy. The insurance policy determines the obligations of the
insured and the insurer. As previously stated, s. 20 does not create an
insurance policy between Ms. Shoenhalz and ICBC. There are no contractual
obligations between Ms. Shoenhalz and ICBC.

[41]       
Section 91 is a defence available to ICBC to reject a claim under s. 20.
The burden of proof rests with ICBC to prove that Ms. Shoenhalz knew that the
Camaro was being operated without the consent of the owner or alternatively,
ought to have known it was being operated without the consent of the owner.

ANALYSIS

Principles of Statutory Interpretation

[42]       
The issue before the Court is an interpretation of s. 91 and how it
applies to s. 20 of the Act. Specifically, I must determine whether Ms.
Schoenhalz’s claim against ICBC is barred by s. 91. Counsel for both Ms.
Schoenhalz and ICBC state there are no cases in British Columbia relating to
the interpretation of s. 91 and its effect on s. 20.

[43]       
The starting point is the Supreme Court of Canada’s adoption of Driedger’s
modern principle of construction of statutes in Rizzo & Rizzo Shoes Ltd.
(Re),
[1998] 1 S.C.R. 27. Justice Iacobucci stated:

[21]      Although much has been written about the
interpretation of legislation (see, e.g., Ruth Sullivan, Statutory
Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes
(3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André
Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer
Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the
approach upon which I prefer to rely. He recognizes that statutory
interpretation cannot be founded on the wording of the legislation alone. At p.
87 he states:

Today there is only one principle
or approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.

[44]       
Justice Iacobucci at para. 22 in Rizzo stated that he also relied
on the Ontario Interpretation Act, R.S.O. 1980, c. 219, which he quoted:

…"shall be deemed to be
remedial" and directs that every Act shall "receive such fair, large
and liberal construction and interpretation as will best ensure the attainment
of the object of the Act according to its true intent, meaning and
spirit".

[45]       
The following section of the British Columbia Interpretation Act,
R.S.B.C. 1996, c. 238 [IA], has similar objectives:

Enactment remedial

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

[46]       
Sullivan on the Construction of Statutes, 6th ed.(Markham,
ON: Lexis Nexis Canada, 2014) (“Sullivan”) (the successor to Driedger)
breaks down interpretation of statutes and regulations into three dimensions:

1.    The textual
meaning, which Driedger calls the grammatical and ordinary sense of the
words.

2.   
Legislative intent, which is that all words in the enactment are there
for a reason:

…the law-maker wants to communicate the law that it intended
to enact because that law, as set out in the provisions of a statute or
regulation, is the means chosen by the law-maker to achieve a set of desired
goals. Law-abiding readers (including those who administer or enforce the
legislation and those who resolve disputes) try to identify the intended goals
of the legislation and the means devised to achieve those goals, so that they
can act accordingly. This aspect of interpretation is captured in Driedger’s
reference to the scheme and object of the Act and the intention of Parliament.

(Page
8 at
§2.4.)

3.    The modern principle is compliance with legal norms, as
explained by Driedger:

These norms are part of the “entire context” in which the
words of an Act must be read. They are also an integral part of legislative
intent, as that concept is explained by Dreidger. In the second edition he
wrote:

It may be convenient to regard ‘intention of Parliament’ as
composed of four elements, namely

·      
the expressed intention – the intention expressed by the enacted
words;

·      
the implied intention – the intention that may legitimately be
implied from the enacted words;

·      
the presumed intention – the intention that the courts will in
the absence of an indication to the contrary impute to Parliament; and

·      
the declared intention – the intention that Parliament itself has
said may be or must be or must not be imputed to it.

(Page
8 at
§2.5.)

[47]       
A summary of these principles of Driedger are stated in Sullivan:

§2.9    At the end of
the day, after taking into account all relevant and admissible considerations,
the court must adopt an interpretation that is appropriate. An appropriate
interpretation is one that can be justified in terms of (a) its plausibility,
that is, its compliance with the legislative text; (b) its efficacy, that is,
its promotion of legislative intent; and (c) its acceptability, that is, the
outcome complies with accepted legal norms; it is reasonable and just.

[48]       
ICBC argues that s. 91 should be interpreted in accordance to the
general approach to statutory interpretation. As stated in Wormell v.
Insurance Corp. of British Columbia
, 2011 BCCA 166:

[18]      Although it is in the insurance context,
what is at issue in this case is a regulation. The general approach to
statutory interpretation remains that stated by Elmer Driedger in his Construction
of Statutes
, 2d ed. (Toronto: Butterworths, 1983) at 87:

Today there is only one principle
or approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.

See Bell ExpressVu Limited Partnership v. Rex, 2002
SCC 42, [2002] 2 S.C.R. 559 at para. 26.

[19]      Also relevant is the presumption against
tautology. The presumption is described by Ruth Sullivan in, Driedger on the
Construction of Statutes
, 3d ed. (Toronto: Butterworths, 1994) at 159 and
162:

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.

Although the presumption against
tautology is frequently invoked, it is also easily rebutted. This can be done
by coming up with a meaning or function for the words in question, to show that
they are not in fact meaningless or superfluous. It can also be done by
suggesting reasons why in these circumstances the legislature may have wished
to be redundant or to include superfluous words. Repetition is not an evil when
it serves an intelligible purpose.

See also Placer Dome Canada
Ltd. v. Ontario (Minister of Finance)
, 2006 SCC 20, [2006] 1 S.C.R. 715 at
paras. 45-46, and Hill v. William Hill (Park Lane) Ltd., [1949] A.C. 530
(H.L.) at 546.

[49]       
In Wormell, Mr. Wormell had been awarded a judgement that ICBC
refused to pay. Mr. Wormell sued ICBC pursuant to s. 76 of the Act,
seeking a declaration that ICBC was liable under the tortfeasor’s insurance
coverage and seeking payment of the amount of the judgment.

[50]       
Although there was an insurance policy in Wormell, what was at
issue was the interpretation of a regulation under the Act. The court
cited the above principles of statutory interpretation and dismissed ICBC’s
appeal.

[51]       
Sections 20 and 91 fall under different parts of the Act. Section
20 falls in Part 1 – Universal Compulsory Vehicle Insurance. Section 91 falls
under Part 5 – General Provisions.

[52]       
Section 74 of the Act states that Part 5 applies to all insurance
policies issued in British Columbia, and the claims of insurance and the
insured and insurers related to the insurance. Part 5 of the Act focuses
on various defences and exemptions that ICBC can establish. For example, Part 5
allows ICBC to step into the shoes of the insured and defend a claim brought against
them (s. 77), or permits ICBC to deny compensation where the insured makes a
willingly false statement with respect to the claim (s. 75). On the other hand,
it also permits recovery against ICBC. For example, s. 76 permits a person who
has a judgement against an insured to start an action against ICBC to satisfy
their judgement.

Headings in Legislation

[53]       
Both parties made submissions as to whether the heading of s. 91 should
be used to interpret the provision below. Section 91 is titled “Limitation on
recovery in relation to stolen vehicles”.

[54]       
Ms. Shoenhalz argues that the word “consent” as it is used in the text
of s. 91 is limited to theft. She argues that the heading of s. 91 limits
recovery of a passenger or driver that knew or ought to have known that the
vehicle was stolen.

[55]       
Ms. Shoenhalz argues that the determining factor is her state of mind
when she rode as a passenger in Brenda Hammond’s vehicle, and not whether Ms.
Reeves had Brenda Hammond’s consent to drive the vehicle. Neither she nor Ms.
Reeves intended to steal the vehicle.

[56]       
Headings are referred to in s. 11 of the IA:

Reference aids and clarifications

11        (1) In an enactment, a head note to a provision or
a reference after the end of a section or other division

(a) is not part of the enactment,
and

(b) must be considered to have been
added editorially for convenience of reference only.

(2) In an enactment, if a reference to a provision of the
enactment or any other enactment is followed by italicized text in square
brackets that is or purports to be descriptive of the subject matter of the
provision, subsection (1) (a) and (b) applies to the text in square brackets.

(3) The Lieutenant Governor in
Council may make regulations amending an enactment for the purpose of changing
a reference to a specific minister or ministry in a provision of the enactment
to the minister or ministry, as applicable, currently assigned responsibility
in relation to the matter.

[57]       
Sullivan states the following on headings:

§14.50 General. In
Parliamentary procedure headings are not considered an integral part of a bill
as it goes through the legislative process. This peculiarity is reflected in
some Canadian Interpretation Acts, which state that headings do not form part
of the enactment in which they are found or (what amounts to the same thing,
they are included for convenience only. This treatment is unsatisfactory. To
any person reading legislation, headings appear to be as much a part of the enactment
as any other component. There is no apparent reason why they should be assigned
an inferior status.

[58]       
Sullivan refers to the varied case law on headings, where some
courts have refused to consider headings, while other courts resort to headings
to resolve an ambiguity. Sullivan quotes the following passage from Canada
(Attorney General) v. Jackson
, [1946] S.C.J. No. 21, [1946] 2 D.L.R. 481 at
486-87 (S.C.C.):

… to restrain or extend its
meaning as best suits the intention of the statute, but neither the title nor
the headings may be used to control the meaning of the enacting words in
themselves clear and unambiguous …

Page 460 at § 14.51

[59]       
In Law Society of Upper Canada v. Skapinker, [1984] 1
S.C.R. 357, Justice Estey interpreted ss. 6(1), (2), (3) of the Canadian
Charter of Rights and Freedoms
(the “Charter”), in the context of s.
28(c) of the Ontario Law Society Act, R.S.O. 1980, c. 233. In doing so
he stated that the Charter was not subject to either federal or
provincial interpretation acts, because of the Charter’s supremacy. The Charter
comes from neither level of the legislative branches of government, but
from the Constitution itself. He concludes at para. 22:

… It is clear that these headings
were systematically and deliberately included as an integral part of the
Charter for whatever purpose. At the very minimum, the Court must take them
into consideration when engaged in the process of discerning the meaning and
application of the provisions of the Charter.

[60]       
Justice Estey discusses headings and their legislation in Upper
Canada
:

[22]      The question of the role of the heading in the
interpretation of statutes appears to be open. The same must, of course, be
true where the Court is engaged in the analysis of a constitutional provision.
Here we have a charter of individual rights incorporated in the broader expanse
of the Constitution. …

[23]      At a minimum the
heading must be examined and some attempt made to discern the intent of the
makers of the document from the language of the heading. It is at best one step
in the constitutional interpretation process. It is difficult to foresee a
situation where the heading will be of controlling importance. It is, on the
other hand, almost as difficult to contemplate a situation where the heading
could be cursorily rejected although, in some situations, such as in the case
of "Legal Rights" which in the Charter is at the head of eight
disparate sections, the heading will likely be seen as being only an
announcement of the obvious.

[61]       
In order to determine the purpose of s. 6(2) of the Charter, Mr.
Justice Estey was required to reconcile s. 6 with the heading introducing it.
He stated at para. 24:

… the section when read as a
whole is clear and without ambiguity, the heading will not operate to change
that clear and unambiguous meaning. Even in that midway position, a court
should not, by the adoption of a technical rule of construction, shut itself
off from whatever small assistance might be gathered from an examination of the
heading as part of the entire constitutional document. This general approach I
take to be consonant with the thinking expressed in the Canadian, British and
United States authorities and texts discussed above.

[62]       
At para. 25, Mr. Justice Estey reflects on how the heading “Mobility
Rights” might impact each subsection of s. 6 of the Charter. Mr. Justice
Estey, after analyzing s. 6 of the Charter, concludes:

[28]      …Reading s. 6(2)(b) in light of the
exceptions set out in s. 6(3)(a) also explains why the words "in
any province" are used: citizens and permanent residents have the right,
under s. 6(2)(b), to earn a living in any province subject to the laws
and practices of "general application" in that province which do not
discriminate primarily on the basis of provincial residency.

[29]      There are many
considerations which lead one to adopt the third interpretation of para. (b),
supra. Paragraph (b) is thereby accorded a meaning consistent with the
heading of s. 6. The trans-provincial border commuter is accorded the right to
work under (b) without the need of establishing residence in the
province of employment in exercise of the right under para. (a). There
is a separation of function and purpose between (a) and (b), and
the need for separate clauses is demonstrated. The presence of s. 6(3)(a),
already discussed, is another supporting consideration.

[63]       
ICBC’s position is the words “a vehicle that the person knew or ought to
have known was being operated without the consent of the owner” do not relate
just to theft.

[64]       
ICBC argues that the IA specifically addresses legislative
headings and strongly indicates that a heading is not part of an enactment.
ICBC argues that the heading of s. 91 must be seen as added editorially, and
for convenience of reference only.

[65]       
ICBC acknowledges that the courts in British Columbia have developed
certain exceptions to this clear statement of law in s. 11(1) of the IA. One
exception exists “where sections grouped under a heading will be presumed to be
related to one another in some particular way.” ICBC cites Re Peters and the
District of Chilliwack
(1987), 43 D.L.R. (4th) 523, and British
Columbia (Director of Civil Forfeiture) v. Violette
, 2014 BCSC 1520.

[66]       
In Peters, the issue was whether a municipal by-law prohibiting
intensive pig farming was a zoning by-law. If it was a zoning by-law, it
required a public hearing. No public hearing was held. The appellant argued
this made the by-law invalid.

[67]       
In considering whether it was a zoning by-law requiring a public hearing,
Mr. Justice Lambert stated the following at p. 527:

            The true question we are looking at here is
whether, in this statutory scheme, this by-law, and by-laws like it, are
by-laws within s. 720, in relation to which the legislature has said that a public
hearing must take place. In my opinion, the structure of the Act and the
close linkage in the Act between s. 716 and s. 720 makes it clear that,
in the time those sections were in effect, s. 720 was intended, in the scheme
of the legislation, to apply to those by-laws that were passed under s. 716 and
came within the general heading of zoning.

            Section 932 came
under the heading of "Miscellaneous Powers" and came in Part 28 of
the Municipal Act. In my opinion, s. 932 was not linked closely with s.
720 and its location in the Act did not suggest that it formed one of
the group of by-laws for which public hearings were required.

[68]       
Mr. Justice Lambert considered the s. 11 of the IA. He concludes
at p. 527-528 by saying:

            The effect of that
section is that the headings that followed the designation of Part 21 of the Municipal
Act
and the headings that followed the designation of Part 28 of the Municipal
Act
are not to be used explicitly as tools of interpretation. But in approaching
the Act as I have done I have looked at the sections in groups within
Parts, and while I have referred to the titles, the titles are not an essential
part of the reasoning which leads me to conclude that the scheme of the Act
comtemplates that only those zoning by-laws passed under s. 716 are required to
meet the public hearing requirements of s. 720 and that the miscellaneous
by-laws passed under s. 933 are not required to meet the public hearing
requirements, even if they deal as part of their subject-matter with the
regulation and use of land and the dividing of land into areas in order to deal
with regulating the keeping of swine and carrying out the other subjects of s.
933.

[69]       
In Violette, the underlying action was pursuant to the Civil
Forfeiture Act
, S.B.C. 2005, c. 29. The Crown was seeking particulars
pursuant to Rule 21-1(7) of the Supreme Court Civil Rules (the “Rules”).
The issue was whether the respondent had to provide particulars sought by the
Director of Civil Forfeiture.

[70]       
In the Rules, Rule 21-1(7) falls under the heading “Admiralty
Matters”. Mr. Justice Davies in Violette considered the relationship
between Rule 21-1(1) and the heading under which these rules fall.

[71]       
The Director argued that the headings have no substantive importance,
citing s. 11 of the IA and Rule 1-1(3), which similarly states:

(3)        The titles and
headings of these Supreme Court Civil Rules are for convenience only and are
not intended as a guide to interpretation.

[72]       
After analyzing Rule 21-1(7), Justice Davies concluded that the words
“other property” in Rule 21-1(7) applied to the context of admiralty matters.
In coming to this conclusion, Davies J. also considered Tilbury Cement Ltd.
v. Seaspan International Ltd.
(1991), 47 C.P.C. (2d) 292 (B.C.S.C.), which
considered the legislative predecessor to Rule 21-1(7). Justice Davies relied
upon Justice Trainor’s comments in Tilbury Cement:

            In dealing with
maritime torts this court sits as an admiralty court exercising admiralty
jurisdiction with responsibility to apply Canadian maritime law which is
uniform throughout Canada. Recognition of this jurisdiction is to be found
in Rule 55 of the Rules of Court which deal specifically with admiralty
jurisdiction.
[Emphasis in Violette]

[73]       
In Violette, Davies J. concluded that Rule 21-1(7) applied only
in the context of an admiralty matter.

[74]       
ICBC argues that s. 91 stands alone in Part 5 of the Act and
therefore does not fall under this exception. Therefore, the heading should not
be read as part of s. 91.

[75]       
Further, ICBC argues that despite these exceptions, the heading to s. 91
creates ambiguity in an otherwise clear provision. Therefore, it should not be
given any weight.

[76]       
Ms. Schoenhalz argues that the title of s. 91 should be considered, and indicates
that s. 91 only applies to a vehicle that has been stolen. She argues that she
did not know and should not have known that the vehicle qualified as stolen.

[77]       
Ms. Shoenhalz states the following in her submissions:

41.       It is submitted that stealing a vehicle is
something significantly greater than merely operating a vehicle without the
consent either express or implied of the owner. As the definitions indicate,
stealing is a dishonest act which is intended to deprive the owner of the benefit
of ownership or possession permanently. This is distinct from a situation where
an individual is merely operating the vehicle without the consent, express or
implied, of the owner perhaps by mistake or misunderstanding.

42.       The act of stealing can only occur in circumstances
where there is no consent from the owner. But not every act of operating a
vehicle without the consent of the owner can be considered stealing.

Ms. Schoenhalz does not refer to
any examples.

[78]       
Ms. Schoenhalz argues that notwithstanding s. 11 of the IA, courts
have used headings for statutory interpretation and viewed them as an
indication of legislative intent. Counsel for Ms. Shoenhalz relies on Jacobs
v. Laumaillet
, 2010 BCSC 1229, and Arts Umbrella v. British Columbia
(Assessor of Area 09 – Vancouver),
2007 BCCA 45.

[79]       
Jacobs is about priorities among or between creditors whose
indebtedness is perfected under the Personal Property Security Act,
R.S.B.C. 1996, c. 359. Justice Butler made the following comment about the role
of headings in interpreting legislation:

[30]      The residual priority rules and other priority
rules are found in Part 3 of the PPSA, which
is entitled "Perfection and Priorities". Sections 59 and 60 are found
in Part 5 of the PPSA, entitled "Rights
and Remedies on Default" which, as its title would suggest, is concerned
with how and when a secured party may enforce the security agreement and deal
with the collateral.

[31]      Section 11 of the Interpretation Act, R.S.B.C. 1996, c. 238, provides
that a heading to a provision is not part of an enactment and must be
considered to have been added editorially or for convenience of reference only.
Notwithstanding this provision, courts have favoured the view that for the
purposes of statutory interpretation, headings should be read and relied on
like any other contextual feature. Headings are a valid indicator of
legislative intent and may be taken into account on interpretation: Ruth Sullivan, Sullivan on the Construction of Statutes,
5th ed. (Markham: LexisNexis, 2008) at 392-397; Arts
Umbrella v. British Columbia (Assessor Of Area 9 – Vancouver)
,
2007 BCCA 45 at para. 3.

[32]      When provisions are grouped together under
headings, it is presumed that they are related to one another in some
particular way; there is a shared subject or a common feature to the
provisions. Conversely, the placement of provisions elsewhere under a different
heading suggests the absence of such a relationship.

[80]       
In Arts Umbrella, counsel agreed:

[3]        …that section headings
can be used as a guide to interpretation of a statute (Law Society of Upper
Canada v. Skapinker
, [1984] 1 S.C.R. 357 at 13-14, 9 D.L.R. (4th) 161).
Both parties further agree that the legislative history of the appeal
provisions of the Act is the most effective guide to the task before me;
however they disagree as to the correct interpretation of that history.

[81]       
I disagree with ICBC’s position. Section 91 does not stand alone.
Earlier in these reasons I referred to the effect of Part 5 of the Act. I
find that Part 5 offers a variety of remedies and avenues of action. The
sections of Part 5 dictate situations where ICBC may avoid liability, and
situations where ICBC must accept it. Although it is of no assistance to the
Court, I find that the heading of “General Provisions” could be used to
interpret s. 91. However, the heading that counsel refers to, “Limitation on
recovery in relation to stolen vehicles”, does not fall under this exception.

[82]       
Therefore, the heading specifically introducing s. 91 cannot be used to
define its meaning, particularly when there is nothing ambiguous in the text.
There is nothing ambiguous in the text of s. 91. Headings should not be of
controlling importance. The heading in this case indicates that a lack of
consent includes a bar on recovery in relation to stolen vehicles. The heading
of s. 91 does not have any effect on the interpretation of s. 91.

General Interpretation of s. 91

[83]       
I will now turn to the arguments made as to how the text of s. 91 should
be interpreted.

[84]       
ICBC urges the Court to compare the words “know” and “knowingly” in s.
91 with the wording for the underinsured motorist protection (“UMP”) claims under
s. 148.1(3)(b) of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 (“Regulation”).
Section 148.1(3)(b) of the Regulation states:

(3)        No coverage is provided under the underinsured
motorist protection to an insured who is

…

(b)        an operator of, or a passenger in or on, a
vehicle that the operator or passenger knew or ought to have known was being
operated without the consent of the owner …

[85]       
UMP is available pursuant to a contract of insurance. There is no
reference to theft in the Regulation. Pursuant to s. 148.2 of the Regulation,
the resolution of UMP claims as to entitlement and amount are resolved by
arbitration.

[86]       
In support of its position, ICBC refers to Dorey v. ICBC, an arbitration
award dated May 27, 2003. In that decision, the arbitrator interpreted the phrase
that the person “knew” or “ought to have known” that the vehicle was being
operated without the consent of the owner.

[87]       
In Dorey, there was a serious motor vehicle accident in which
four people died. Amongst others, Mr. Dorey, a passenger in the vehicle, was
injured. There were insufficient funds to pay all the judgements and Mr. Dorey
brought a claim under the UMP provisions in the Regulation.

[88]       
At the time of the accident, Marc Vezina was driving Ms. Pysh’s vehicle.
Marian Anne Pysh, the owner of the vehicle, did not know Mr. Vezina or Mr.
Dorey.

[89]       
On the day of the accident, Ms. Pysh had given her son Joshua, then age
16, permission to drive to the lake together with a friend to fish. Ms. Pysh,
despite some evidence to the contrary, did not know that other young men were
going to the lake with Joshua. Mr. Vezina, who was age 20, eventually took over
the driving of Ms. Pysh’s car to drive to the lake.

[90]       
Mr. Vezina was driving southbound on the Chase-Faulkland Road when Mr.
Vezina lost control of the car and it came across into the northbound lane
colliding with a motorcycle, killing the driver.

[91]       
There was lack of evidence as to whether Mr. Vezina had or did not have
a driver’s license. Mr. Vezina died in the accident.

[92]       
It was found in a summary trial that Mr. Vezina was negligent and that
his actions were the sole cause of the accident. Further, the court found that
Mr. Vezina did not have the consent of the owner to drive the vehicle.
Therefore Mr. Vezina was an uninsured driver under s. 20 of the Act. Mr.
Vezina died without sufficient assets to meet the personal injury claims – in
particular Mr. Dorey’s. Mr. Dorey and the other parties settled their claims
against Mr. Vezina, deceased, by an agreed division amongst the parties of the
$200,000, permitted by s. 20 of the Act. It was agreed that Mr. Dorey’s
claim against the uninsured motorists’ funds (s. 20) was not a bar to his claim
under UMP.

[93]       
For purposes of the arbitration, it was agreed that the claimant was
“insured” as defined by s. 148.1 of the Insurance (Vehicle) Regulation,
B.C. Reg. 447/83 (“Regulation”). Mr. Vezina was an underinsured
motorist as defined by s. 148.1 of the Regulation.

[94]       
ICBC alleged that Mr. Dorey’s claim was barred and that he was not
entitled to damages on the basis that he knew or ought to have known that at
the time of the accident Mr. Vezina operated the vehicle without the consent of
Ms. Pysh. ICBC relied on s. 148.1(3) of the Regulation, which contains
similar language to s. 91 of the Act.

[95]       
In his decision, the arbitrator concluded that Mr. Dorey was prima
facie
entitled to UMP compensation and that the onus was on ICBC to prove
on a balance of probabilities that Mr. Dorey was not entitled to coverage
because of Regulation, s. 148.1(3)(b). The arbitrator concluded that Mr.
Vezina drove Ms. Pysh’s vehicle with the express consent of Joshua.

[96]       
The arbitrator found that Mr. Dorey was unaware of the restrictions that
Ms. Pysh had placed on Joshua as it related to driving her vehicle, which was
that Joshua and his friend were going to the lake to fish.

[97]       
The arbitrator found that Ms. Pysh’s vehicle was never stolen, and in
fact, Joshua was an occupant of the car whenever it was driven.

[98]       
The arbitrator stated in para. 32 of his reasons that there was nothing
in the language of the Regulation to restrict drivers and passengers in
vehicles receiving compensation limited to being stolen. The arbitrator went on
to say:

…Where the vehicle is not stolen,
and the original borrower remains in possession of and an occupant in the
vehicle, and where constraints regarding use are known to the original borrower
and not disclosed to others in the vehicle, the burden of establishing facts
that show a passenger ought to have known the owner would not consent should be
onerous, even before taking into account that s. 148.1(3)(b) is an exclusion
from coverage.

[99]       
Dorey is not binding on this Court. However, in some ways the
facts are similar to the facts in the case before me. The most obvious is that
the drivers of the vehicle did not have the consent of the owners to drive it.
Unlike Joshua, Steven did not consent to Ms. Reeves, or for that matter, Ms.
Schoenhalz, driving the vehicle. Joshua did consent to Mr. Vezina driving his
mother’s vehicle.

[100]     Other than
the similarity and the intent of the language that an operator and a passenger
know or ought to have known that the vehicle was being operated without the
consent of the owner, UMP is coverage is a contract of insurance between Mr.
Psych and ICBC. Ms. Psych had a valid owner’s certificate. In my opinion, this
distinguishes the facts in Dorey.

[101]     ICBC’s
written submissions contained several additional arguments as to how other statutory
provisions and surrounding case law should be used to interpret words found in
s. 91. I do not accept these arguments but I shall summarize some of them here.

[102]     ICBC referred
to instances where the word “permit” is used in the Regulation. An
example includes s. 55(5) of the Regulation, where an individual is not
authorized and qualified by law to operate a vehicle. ICBC argues Ms. Reeves
did not have a license and even if there was consent, there would be still no
coverage. I do not think that this argument is relevant, as the words that need
to be interpreted do not include the word “permit”.

[103]     ICBC also
referred to the use of the work “belief” in the Regulation in ss.
96(b)(iii) and 49(1)(g). ICBC cited British Columbia cases that discuss whether
the circumstances of the complainant should have caused the applicant seeking
benefits to believe there was insurance on the vehicle. For example, ICBC cited
Chamberlin v. Insurance Corporation of British Columbia, 2005 BCSC 1074,
where the court found it was reasonable that the insured relied on her husband
to renew the insurance every year, even though he had forgotten to do so before
the accident occurred. I do not find these cases are analogous to the case
before the Court and I do not accept this argument.

[104]     ICBC
compares the requirements of consent under s. 91 of the Act with implied
consent under s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318.
In support of this, ICBC cites Godsman v. Peck (1997), 29 B.C.L.R. (3d)
37 (C.A.). This case is about consent. I have already concluded in the Reasons that
neither Steven nor Brenda Hammond gave express or implied consent to Ms. Reeves
to drive the Camaro. Having decided that consent was not given, any analysis of
implied or other kinds of consent is not required.

[105]     This
brings me to the English case of White (A.P.) v. White and the Motor
Insurers Bureau,
[2001] UKHL 9, on which ICBC relies on in interpreting the
words “knew or ought to have known”. The facts in White were that two
brothers, Brian and Shane, were in a single motor vehicle accident in which Shane
was driving and Brian was a passenger. Brian was seriously injured. Shane was
found to be at fault for the accident. Shane was unlicensed to drive and did
not have insurance. He could not pay his brother’s claim. Brian did not know
that his brother Shane was unlicensed. Brian knew that in the past his brother
had driven without a license.

[106]     In
Britain, all insurance companies are required to contribute to a fund to
compensate victims who could not collect on their judgments for injuries, MIB.
The obligations of MIB are not found in any act of parliament and therefore the
scheme is entirely contractual: White at para. 7. The MIB is
contractually permitted to reject a claim of compensation when a person
voluntarily enters a vehicle and knows it was uninsured.

[107]     The court
in White held that the phrase “ought to have known” includes “where a
passenger gave no thought to the question of insurance, even though an
ordinarily prudent person, in his position and with his knowledge, would have
made enquiries”: para. 17. Based on White, ICBC submits that “ought to
have known” will also cover the situation where the person gave some thought to
the question of consent but carelessly failed to make reasonable inquiries.

[108]     Although
the scheme in White is contractual; in this case, this scheme is
legislative. However, their purposes are the same, which is to provide minimum
compensation to persons injured in automobile accidents where the vehicle or
driver is not insured. I am not bound by White, but I find it persuasive
as to how s. 91 should be interpreted.

HANSARD

[109]     In absence
of any caselaw on point, I shall also examine legislative debates relevant to
s. 91.

[110]    
In support of considering extrinsic evidence, which includes the Hansard
debates, Sullivan states:

§23.4   This chapter begins by suggesting
reasons why extrinsic aids might appropriately be relied on in interpretation:
because they are part of the legal context; because they offer evidence or
external context; because they are a source of authoritative opinion about the
meaning or purpose of legislation; because they are part of the understanding
on which legislation was enacted. This is followed by consideration of whether
extrinsic materials should be consulted even if the legislative text appears to
be plain rather than ambiguous. The chapter then reviews the rules governing
the admissibility and use of extrinsic aids under the following headings: (1)
legislative evolution (2) legislative history; (3) legal scholarship; (4)
administrative interpretation; and (5) judicial interpretation.

[111]    
Arising from legislative history, Sullivan refers to the
exclusionary rule, which she defines at §23.59 and §23.60. Sullivan
states:

§23.61 This way of thinking is evident in the remarks of Muldoon
J. in Ru- parel v. Canada (Minister of Employment & Immigration). In
support of a particular interpretation of the Immigration Act, counsel
invited the court to examine the remarks made by the Minister of Employment and
Immigration upon moving for second reading of the Act. Muldoon J. refused for
several reasons, including the following:

Other good reasons for rejecting speeches in Parliamentary
debates is that they are not law, they sometimes misstate the law, and are
frequently made for partisan advantage or public effect. In the instant
example, whereas the Minister proudly mentioned [a particular point] (Hansard,
at page 3075) …, the Opposition spokesman … in welcoming the proposed reforms
(Hansard, at page 3078) chose to ignore that [point]…. Whose version,
in one chamber of the bicameral Parliament, can be said to unlock any secrets
of interpretation?

[112]    
Further objections are listed by Sullivan such as having
ministers, members, and bureaucrats who cannot speak for the Legislature as a
whole make points about the legislation in question. Additional concerns
include the loss of materials and the assessment and the reliability of the
materials.

[113]    
However, Sullivan states that using legislative history to
interpret an enactment may be justified:

§23.66 The theoretical objections to the use of legislative
history are more difficult to answer, but there are number of ways in which
their use can be justified. First, it may be plausible in particular
circumstances to conclude that a provision was enacted by the legislature on
the understanding expressed by a Minister or contained in some other material
comprising legislative history. As a corporate entity, the legislature can
express itself only through legislation, but it can hear and read and respond
to whatever is put before it. This includes not only statements made on the
floor of the legislature, but any materials involved in the legislative
process. In the case of legislation dealing with technical matters, it may
include information supplied by experts in the field.

§23.67 Second, the courts regularly rely on
the opinions of other interpreters. Although such opinions are not binding,
they may have considerable persuasive force. Because participants in the
legislative process regard legislation from a unique vantage point, as
insiders, their opinions about the meaning or purpose of an enactment may be
worth taking into account. Of course, some opinions are more authoritative than
others. In a Parliamentary system of government, there is likely to be a
relatively small number of individuals whose intentions largely control the
content of legislative initiatives. In the case of statutes, this would include
the recommending Minister, who will reflect the views of Cabinet; it would also
include the Parliamentarians who comprise a majority of the Committee that
reviews the bill. In the case of regulations, at the federal level, it would
include the bureaucrats who prepare the regulatory impact assessment ‘
statement that is published with the regulations.

[114]     The courts
have stated that extrinsic evidence such as Hansard can be used to
assist the court in resolving an ambiguity to determine why the Legislature was
enacting certain legislation: Bingo City Games Inc. v. B.C. Lottery Corp.,
2005 BCSC 25.

[115]    
In Rizzo, Iacobucci J. used the legislative debates in Ontario to
support his position in interpreting the Ontario Employment Standards Act.
He stated:

[34]      This interpretation is also consistent with
statements made by the Minister of Labour at the time he introduced the 1981
amendments to the ESA. With regard to the new severance pay provision he
stated:

            The circumstances
surrounding a closure will govern the applicability of the severance pay legislation
in some defined situations. For example, a bankrupt or insolvent firm will
still be required to pay severance pay to employees to the extent that assets
are available to satisfy their claims.

. . .

. . . the proposed severance pay
measures will, as I indicated earlier, be retroactive to January 1 of this
year. That retroactive provision, however, will not apply in those cases of
bankruptcy and insolvency where the assets have already been distributed or
where an agreement on a proposal to creditors has already been reached.

(Legislature of Ontario Debates,
1st sess., 32nd Parl., June 4, 1981, at pp. 1236-37.)

Moreover, in the legislative debates regarding the proposed
amendments the Minister stated:

            For purposes of
retroactivity, severance pay will not apply to bankruptcies under the
Bankruptcy Act where assets have been distributed. However, once this act
receives royal assent, employees in bankruptcy closures will be covered by the
severance pay provisions.

(Legislature of Ontario Debates,
1st sess., 32nd Parl., June 16, 1981, at p. 1699.)

[35]      Although the frailties of Hansard evidence are
many, this Court has recognized that it can play a limited role in the
interpretation of legislation. Writing for the Court in R. v. Morgentaler,
[1993] 3 S.C.R. 463, at p. 484, Sopinka J. stated:

. . . until recently the courts have balked at admitting
evidence of legislative debates and speeches. . . . The main criticism of such
evidence has been that it cannot represent the "intent" of the
legislature, an incorporeal body, but that is equally true of other forms of
legislative history. Provided that the court remains mindful of the limited
reliability and weight of Hansard evidence, it should be admitted as relevant
to both the background and the purpose of legislation.

[116]    
The Supreme Court of Canada in Canada 3008 Inc., Re: Inter-Canadian
(1991) Inc. (Trustee of)
, 2006 SCC 24, reconfirmed Rizzo, when
Justice Binnie referred to Hansard for the legislative history of an
enactment:

[57]      Though of limited weight, Hansard evidence can
assist in determining the background and purpose of legislation; Rizzo &
Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para. 35; R. v.
Morgentaler
, [1993] 3 S.C.R. 463, at p. 484. In this case, it confirms
Parliament’s apparent intent to exclude legal titleholders from personal
liability for air navigation charges. The legislative history and the statute
itself make it clear that Parliament did not intend CANSCA to replace or
override the existing regulatory framework but rather to fit cohesively within
it. In introducing CANSCA, the Minister of Transport stated that the
Aeronautics Act, which establishes the essential regulatory framework to
maintain safety in the aviation industry, "will always take precedence
over the commercialization legislation" (House of Commons Debates,
March 25, 1996, at p 1154). In the Ontario Court of Appeal, Cronk J.A.
highlighted a number of other instances where government spokespersons
emphasized to Members of Parliament that CANSCA was to fit within the
existing regulatory framework which generally favours the narrow meaning of
"owner"; see, e.g. House of Commons Debates, May 15, 1996, at
p. 2834; May 29,1996, at p. 3144; June 4, 1996, at pp. 3394 and 3410; and
Debates of the Senate, June 10, 1996, at pp. 588-89.

[58]      In 1985, during passage of the Aeronautics Act,
a concern was raised in Parliament that liability under s. 4.4(5) (that Act’s
liability provision) could extend to legal titleholders. In response, the
Government inserted the term "registered owner". The Parliamentary
Secretary to the Minister of Transport specifically stated that the change was
made to ensure that liability did not extend to those who had a security or
other financial interest in the aircraft; House of Commons Debates, vol.
IV, 1st Sess., 33rd Parl., June 20, 1985, pp. 6065-66.

[59]      In 1996, the Government considered Bill C-20 (which
became CANSCA) as it transferred the operation of the civil navigation
system from Transport Canada to NAV Canada. The Clause by Clause Analysis brief
presented to the Senate Committee explained that s. 55 is based on the wording
of the equivalent section of the Aeronautics Act which, as stated,
restricts "owner" to registered owner; see "Clause by
Clause Analysis for the Civil Air Navigation Services Commercialization Act",
as presented to the Senate Committee on Transport and Communications, at pp.
51-52. However, the textual discrepancy noted above was not addressed.

 

[117]     Although
it is of limited weight, I find that I can look to the statements of the
Legislature in the Hansard debates.

What was the intention of the legislature when ss.
19.2(1) and (2) were enacted (now s. 91 of the Act)?

[118]     In 1997,
the British Columbia legislature enacted ss. 19.1 and 19.2 under the Traffic
Safety Statutes Amendment Act,
S.B.C. 1997, c. 43, s. 51. The sections read
as follows:

Limitation on recovery for acts of violence

19.1     If the dominant cause of any injury or death
is the use of any weapon or any object, other than a motor vehicle or trailer,
used as a weapon,

(a) the corporation is not liable
under this Act or the regulations, including, without limitation, under section
20, 21 or 24 or under the plan established under this Act and the regulations,
to indemnify or to pay any benefit to or make any other payment to

(i) the person using the weapon or
object,

(ii) the person suffering the
injury or death, or

(iii) a spouse, child, parent or
personal representative of a person referred to in subparagraph (i) or (ii),
and

(b) the person using the weapon or
object is not a designated defendant,            as that term is defined in
section 52, for the purposes of Part 3.

Limitation on recovery in relation to stolen motor
vehicles

19.2 (1) This section applies to a person who

(a) suffered injury, death or loss
of or damage to property that arises out of the use or operation of a motor
vehicle, and

(b) at the time of the accident as
a result of which the injury, death or loss     of or damage to property was
suffered, was an operator of, or a passenger in or on, a motor vehicle that the
person knew or ought to have             known was being operated without the
consent of the owner.

(2) Despite the Negligence Act and section 56 of this
Act,

(a) if 2 or more persons are found
at fault for the injury, death or loss of or damage to property referred to in
subsection (1), they are liable to the person referred to in that subsection
for any damages awarded for that injury, death or loss of or damage to property
in the degree to which they are respectively found to have been at fault and
are not liable to make contribution to and indemnify each other respecting that
liability or any             payment made in relation to it, and

(b) a person referred to in subsection (1) is not entitled
to any recovery from the corporation under section 20.

[119]     Both ss.
19.1 and 19.2 were repealed in 2003 by the Insurance (Motor Vehicle)
Amendment Act,
S.B.C. 2003, c. 94, s. 14. Section 91 was enacted in their
place.

[120]     When s.
19.2 was repealed and s. 91 was enacted in its place, there was no mention of
the section by the Legislature. However, given the similarly of the two
sections, the discussion of the provision when it was first enacted as s. 19.2
is applicable to s. 91. There was extensive discussion surrounding the
enactment of s. 19.2 when the Traffic Safety Statue Amendment Act was
before the Legislature.

[121]     During the
First Reading, during the afternoon of June 17, 1997, the Honourable A. Petter
(the member responsible for the bill) said that the bill was designed to take
aim at auto crime and fraud, and the scheme represented “the most aggressive
road safety program ever, aimed at making B.C. roads safer, reducing auto theft
and fraud, and keeping auto insurance rates affordable.”

[122]     During the
Second Reading, in the morning of July 22, 1997, Hon. A. Petter stated the
following:

We will be greatly reducing
insurance protection for those who participate in auto theft, including those
who are passengers and a party to auto theft. From now on, any person who knows
or ought to know that a car is stolen will not be eligible for future wage loss
from ICBC.

[123]     The most
extensive discussion of the provisions of 19.2 occurred during the Committee
stage, which took place during the afternoon of July 24, 1997. I include
significant portions of what was said in support of s. 19.2.

…

Hon. A. Petter: Again, an example for me helps to
explain the policy issue and how it has been defined here. If you have a
situation where two or three individuals have, in concert, in a common
enterprise decided to steal a car, and one happens to be the driver and then
gets into an accident, right now the others can sue the driver, if the driver
is at fault, and recover, with ICBC having to provide full insurance coverage
as though the driver were being sued by an innocent party. What this does is,
it says no. That person in the passenger seat who undertook that criminal
activity knowingly and as a participant, accessory or what have you should be
no better off than the driver — should be able to recover the same limited
benefits that are available, but should not be treated as an innocent bystander
or participant as, say, a pedestrian or someone in another car.

That does send a strong signal that when people enter into
a course of conduct, particularly the stealing of a car, which is the most
common in the circumstance we’re thinking of here, they run the risks
.
Whether they’re behind the driver’s seat or they’re encouraging that activity
by sitting in the passenger’s seat or indeed in the back seat, they should run
the same risks. They should not be able to position themselves as though they
were some kind of innocent party outside the enterprise that caused the
accident.

Again, these are choices that are made. But I think this is a
move in the right direction from a public policy point of view — albeit it
will have some small saving in monetary terms to ICBC, as well, but in my view
that’s not the primary motivation.

G. Plant: I want to make one other point in this
context, although it’s really just by way of an observation on the challenge
that will face the courts. One of the phenomena in legislation that I find most
interesting is the phenomenon of unintended consequences. The operation of this
limitation is conditional on a situation arising where the vehicle is being
used without the consent of the owner. Of course, there already is a long
tradition in insurance law, including ICBC insurance law in British Columbia,
of cases around the question of whether or not a motor vehicle is being used
with or without the consent of the owner. I hope this section will be construed
by the judiciary purposively, in a way which does not encourage some kind of
accidental new industry around litigating consent in this context, because that
would be unfortunate and, hopefully, will not come to pass.

I guess the other issue is that there are two ways that you
can deal with limiting recovery. One is that you can limit a person’s right to
recover at law — that is, you can limit the liability of somebody altogether.
The second way you can deal with it is to limit the Insurance Corporation’s
obligation to indemnify people in respect of those situations. That would leave
the person, who for the sake of this argument I’ll call the innocent victim —
although that may be an incorrect description — with the option to still
pursue the person who was negligent and to take his or her chances with respect
to whether or not that individual had any assets that would be worth trying to
recover at the end of the day.

It looks to me that this section makes a public policy
decision to limit recovery generally rather than to limit the right of action
against the corporation. But that’s only because I haven’t yet read my way all
the way through section 19.2(2)(a). It may be that (2)(b) moves us exactly into
the second category. Because this is the only opportunity I’ll have to get
public clarification of that, could I have the minister’s confirmation of which
of these two categories we’re in here?

Hon. A. Petter: No, in fact the choice that has been
made is the other choice that the member outlined. It’s illustrated in 19.2(2)(b),
where it says: ". . .a person referred to in subsection (1) is not
entitled to any recovery from the corporation under section 20."

So let’s take the circumstance, and I’ll see if I get it
right. My officials will no doubt tell me if I don’t. In the circumstance I
outlined, if the driver were insured, the passenger would not be able to
recover against that driver’s insurance. If the driver were not insured, the
passenger would not be able to recover against ICBC, based on the
uninsured-motorist protection. That may be the confusion here. But if the
driver has the means and the passenger has the will to pursue a private action,
then as I understand it, there’s nothing here that prevents that from
happening.

What’s being prevented is the kind of coverage in which the
corporation would stand behind the insurance risk of the driver. In the two
instances I’ve given, what this section says is that the corporation will not
provide insurance on behalf of the driver either as an uninsured motorist or as
an insured motorist, in those circumstances.

G. Plant: Picking up on that, the first question that
occurs to me is: what, then, is the purpose of subsection 19.2(2)(a)? I don’t
want to try and unpack all of it. But am I right that it has something to do
with the rules of contributory negligence around apportioning fault and
ensuring that the innocent victim in this case doesn’t have the ability to get
through the back door that which we’re trying to prevent him from getting
through the front door?

Hon. A. Petter: What paragraph 19.2(2)(a) does is
simply ensure that the liability is several, so that you cannot visit the
liability upon — a term the member will appreciate — the party with deep
pockets. You have to in fact visit it according to the apportionment of
liability.

[My emphasis]

[124]     These
comments make it clear that ICBC will no longer provide compensation to people
injured in a motor vehicle accident who participate in theft of a car or should
have known the car was stolen.

[125]    
The plaintiff argues that legislative history, including Hansard, has
been relied upon by the Supreme Court of Canada to determine legislative
intent. She referred to H.L. v. Canada (Attorney General), 2005 SCC 25,
for this proposition.

[126]    
 The issue before the Supreme Court of Canada in H.L. was the
applicable standard of appellate review on questions of fact in Saskatchewan. In
H.L., the Court referred to Saskatchewan Hansard for the purpose
of the enactment in question, which was “to update and clarify some of the
provisions”: para. 105. The Court cited statements from Hansard where
the Legislature said the act in question “doesn’t change the jurisdiction of
the Court of Appeal in any way, it simply restates the historical jurisdiction
of the court in a way that can be understood by users of the Act”: para. 10. Mr.
Justice Fish for the Court said:

[106]    Though of limited
weight, Hansard evidence can assist in determining the background and
purpose of legislation: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1
S.C.R. 27, at para. 35. In this case, it is particularly apposite, since it was
contended by the Attorney General for Saskatchewan, an intervener in this
Court, that the legislature’s purpose in revising The Court of Appeal Act
was to "clarify" that the Court of Appeal was to be placed "in a
position of conducting an appeal by rehearing".

[127]     The
plaintiff argues in this case that Hansard makes it certain and
unequivocal that the enactment was directed at a passenger who was in injured
in the course of the common enterprise with the driver to steal a car.

[128]     The
plaintiff concludes that s. 91 is directed at “depriving a person of insurance
coverage who was involved in criminal activity”.

[129]     ICBC’s
position is that Hansard is not admissible in this case. Even if
it is admissible, it is not useful for interpretation, but is only relevant as
to the background and the purpose of the legislation. ICBC argues Hansard
is not intended to be direct evidence used interpret legislation: Rizzo at
paras. 35, 40, and Reference Re: Firearms Act (Can), 2000 SC 31 at
para. 17. ICBC argues that Hansard cannot be used to override plain
language or read additional requirements into legislation: R. v. McDonald,
2012 BCCA 475 at para 14. I note the McDonald case does not consider Hansard
debates, but another form of extrinsic evidence.

[130]     ICBC
argues that in Mr. Petter’s words in Hansard are not just focussed on
stealing cars, but on situations other than stealing a car.

[131]     Ms.
Schoenhalz is correct that the discussion in Hansard was focussed on
stolen vehicles. It provides background to the passing of the legislation.
However, given the clear text of s. 91, I find that I do not need to resort to
the Hansard debates to interpret the section. However, even after a
consideration of Hansard, there is nothing in the legislative discussion
to indicate the legislation is limited to stolen vehicles. It is intended to
prevent recovery when a party was injured while in a vehicle they knew or ought
to have known was being driven without the consent of the owner, which naturally
includes stolen vehicles.

DECISION

[132]     I conclude
that the wording of s. 91 is clear and unambiguous. A driver who knows that the
vehicle is being driven at the time of the accident without the consent of the
owner cannot make a claim for compensation from what is known as the Uninsured
Motorist Protection Fund which arises from s. 20 of the Act. Whether or
not the vehicle is stolen is not determinative.

[133]     However,
in these unusual circumstances, I find that ICBC has failed to discharge its
burden to prove that Ms. Schoenhalz knew or ought to have known Ms. Reeves did
not have permission of the owner to drive the vehicle.

[134]      “Knew or
ought to have known” needs to be interpreted from Ms. Schoenhalz’s perspective.
Both Ms. Schoenhalz and Ms. Reeves were of the belief that Steven owned the car.
The basis of this belief was reasonable, in that Ms. Schoenhalz had been in the
vehicle before with Ms. Reeves, Luke and Steven. On the day of the accident,
she was picked up and rode in the Camaro with Luke driving and Ms. Reeves and
Steven as passengers. Ms. Schoenhalz did not know that Ms. Hammond was the
owner, and there was no evidence before me that should have indicated to Ms.
Schoenhalz that Steven was not the owner.

[135]     It is
important to my decision that both Ms. Reeves and Ms. Schoenhalz thought Steven
owned the car. While this does not affect my decision regarding liability, it
is entirely relevant to the operation of s. 91. Section 91 asks the court to
examine what the claimant, in this case Ms. Schoenhalz, knew or ought to have
known about consent to operate the vehicle. Therefore, as Ms. Schoenhalz’s
counsel suggests, I must approach s. 91 from her perspective, both subjectively
and objectively.

[136]     I
reiterate that ICBC has the burden of proving of a balance of probabilities
that Ms. Schoenhalz knew or ought to have known Ms. Reeves did not have consent
of the owner to drive the car.

[137]     I find
that ICBC has not proven that Ms. Schoenhalz subjectively knew Ms. Reeves did
not have the consent of the owner to operate the vehicle.

[138]     The more
difficult question is whether ICBC has proven that an ordinary and prudent 17
year old girl, in Ms. Schoenhalz’s position and with her knowledge, should have
known Ms. Reeves did not have permission to drive the car. I reiterate once
again that Ms. Schoenhalz reasonably believed Steven was the owner. ICBC has
not proven that it would be unreasonable for a 17 year old girl to accept that
Luke, who had driven the vehicle and maintained possession of the keys, could
give them Steven’s permission to drive the car. It seems reasonable that a
young girl would believe that Luke, the eldest of the group, was able to give
them Steven’s permission when he directed them to take the car. I am not saying
this would be a reasonable assumption for an adult to make. It surely would
not. I limit my findings to Ms. Schoenhalz’s specific circumstances. In this
case, I find ICBC has not proven that Ms. Schoenhalz should have known Ms.
Reeves did not have permission to drive the car.

[139]     Essential
to my decision is the fact that both Ms. Schoenhalz and Ms. Reeves were
incredibly young at the time of the accident. I find that the statement in para.
17 in White, where the court stated that the phrase ‘ought to have known’
encompassed “where a passenger gave no thought to the question of insurance,
even though an ordinarily prudent person, in his position and with his
knowledge, would have made enquiries” is helpful in my interpretation of s. 91.
In my opinion, ICBC has not met the burden of proving that an ordinarily
prudent 17 year old girl will turn their mind to the question of consent when
asked to drive a car.

[140]     This
situation is factually distinct from White, where I infer the two men
were older. I note that Shane, the driver, had actually been disqualified from
driving. It appears the brothers had a history of intentional illegal and
uninsured driving, which they had discussed amongst themselves: para. 18. It
seems logical to infer that the brothers in White clearly understood the
implications of unlicensed driving and the operation of vehicle insurance.

[141]     In
conclusion, the unique factual circumstances of this case, where I must
consider the mental state of a very young girl, bring me to my decision. I find
that ICBC has not proven that Ms. Schoenhalz’s claim is barred by s. 91.

ORDER

[142]    
The plaintiff’s action is allowed with costs, pursuant to Appendix B,
Scale B of the Rules, after their assessment.

“H.C. Hyslop J.”

HYSLOP J.