Exceptions to coverage under Part 7

Section 90 the Insurance (Vehicle) Act, and sections 79(2) and 96 of the Insurance (Vehicle) Regulation, set out various situations for which Part 7 coverage is NOT provided. In other words, even if a person comes within the definition of “insured” as discussed above, and has a need for benefits due to a motor vehicle accident, they will not be entitled to Part 7 benefits if the situations described in section 90 of the Insurance (Vehicle) Act or s. 79(2) or s. 96 of the Insurance (Vehicle) Regulation apply. Information about each of these sections is provided below.

 

No coverage for violent acts (s. 90 of the Insurance (Vehicle) Act)

It used to be the case that victims of violent acts were able to claim Part 7 benefits so long as a motor vehicle was involved in the incident in which the injury was suffered. However, after a case in which a victim of gang violence claimed Part 7 benefits because he happened to be driving a vehicle when attacked, and another case in which a person claimed Part 7 benefits when someone in an oncoming vehicle through a brick through his window, the legislation was modified to eliminate Part 7 benefits for acts of violence. The logic behind the change was that Part 7 is designed to provide benefits to victims of true motor vehicle accidents, not victims of crime.

 

Section 90 of the Insurance (Vehicle) Act now provides as follows:

 

If the dominant cause of any bodily injury to or death of a person is the use of any weapon or any object, other than a vehicle, used as a weapon,

(a) the insurer is not liable under this Act, including, without limitation, under section 20, 24, 76, 77 or 78 or under an optional insurance contract or the plan, to indemnify or to pay any insurance money to or on behalf of

(i) the person using the weapon or object,

(ii) the person suffering the bodily 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 95, for the purposes of Part 6.

(Insurance (Vehicle) Act, s. 90).

 

Note however the exception in the opening words that indicate that if the act of violence is committed using a vehicle as a weapon then there would be Part 7 coverage. For example, a cyclist intentionally struck down by a motorist would be entitled to Part 7 benefits.

 

Note also that Part 7 coverage is not excluded for all participants in criminal activity; s. 90 refers to use of a weapon, and does not specifically refer to “criminal” activity (although acts of violence anticipated by s. 90 would likely also be crimes).

 

Section 91 of the Insurance (Vehicle) Act provides that a person who “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” (i.e. was stolen) has no right to claim against ICBC on account of harm caused by an uninsured driver, but does not say anything about limiting entitlement to Part 7 benefits. Therefore if, for example, a passenger in a vehicle known to be stolen is injured in an accident he may be entitled to claim Part 7 benefits.

 

Limit on coverage for cyclists and pedestrians (s. 79(2) of the Regulation)

Section 79(2) of the Insurance (Vehicle) Regulation states that where the accident occurs in the United States or on a vessel travelling between Canada and the United States and the claimant is a cyclist or pedestrian, Part 7 benefits will only be payable if the claimant:

  • owns a vehicle insured in BC, or lives in the same household as such a person; or
  • has a BC driver’s license, or lives in the same household as such a person.

 

In other words, where the claimant is a cyclist or pedestrian injured in the USA, or on a ferry, the claimant has to fit within a narrow subset of the categories of who is an “insured” before they will be entitled to benefits.

 

Exception to coverage under s. 96 of the Regulation

Section 96 of the Insurance (Vehicle) Regulation describes certain situations in which no Part 7 benefits will be paid. Certain of the situations described in s. 96 mirror the definitions of “insured” set out in s. 78 of the Insurance (Vehicle) Regulation and discussed above, and some address other circumstances.

 

Wording of s. 96 of the Regulation

Section 96 of the Insurance (Vehicle) Regulation sets out the exceptions to Part 7 coverage in the following terms:

 

The corporation is not liable to pay benefits under this Part in respect of the injury or death of a person

(a) who is resident outside the Province and, at the time of the accident, is the occupant of a vehicle not described in an owner's certificate,

(b) who, at the time of the accident, is

(i) an occupant of or is struck by a vehicle that could not be licensed under the Motor Vehicle Act or Commercial Transport Act or that is of such design that if owned or operated in the Province could not be licensed under one of those Acts,

(ii) the occupant of a vehicle exempted under section 43 or 44 of the Act, whether or not the vehicle is operated by a person named in a driver’s certificate, or

(iii) the occupant of a vehicle that is of such design that it could be licensed under the Motor Vehicle Act, the Commercial Transport Act or similar legislation of another jurisdiction, but that is in fact not licensed under the applicable legislation unless the occupant had reasonable grounds to believe that the vehicle was licensed,

(c) who commits suicide or attempts to commit suicide, whether he is sane or insane,

(d) Repealed. [B.C. Reg. 449/88, s. 17.]

(e) who is the occupant of a vehicle that, at the time of the accident, is being used for an illicit or prohibited trade or transport, or

(f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part.

(Insurance (Vehicle) Regulation, s. 96).

 

Although a number of technical terms are used in the above definition, the words used indicate that the exceptions to coverage include where the claimant:

  • is not a resident of BC, and at the time of the accident was the occupant of a vehicle not insured in BC;
  • was in a vehicle that could have been licensed, but was not licensed and the claimant did not have reasonable grounds to believe it was licensed;
  • was in, or struck by, a vehicle that could not be licensed in BC e.g. because the vehicle was an off-road vehicle or some other type of vehicle that is not designed to be licensed for use on the roads (In Isaacson (Guardina ad Litem of) v. Insurance Corp. of British Columbia, 1991 CanLII 2026 (BCSC) a child riding a 50cc mini-bike which could not be licensed to be on the road was not entitled to Part 7 benefits. In Vlchek v. ICBC, 1987 CanLII 2743 (BCCA) a plaintiff injured while riding a three-wheel all-terrain vehicle not licensed to be on the road was not entitled to Part 7 benefits);
  • was in a vehicle owned or operated by the Government of Canada or the governments of other provinces;
  • was attempting to commit suicide;
  • was in a vehicle being used for an illicit or prohibited trade or transport; or
  • has an injury that was caused, directly or indirectly, by sickness or disease rather than by the accident.

 

If any of the above apply to the claimant there will likely be no entitlement to Part 7 benefits.

 

Exception for sickness or disease

The exception in s. 96(f) of the Insurance (Vehicle) Regulation, which is worded as follows, is particularly important:

 

The corporation is not liable to pay benefits under this Part in respect of the injury or death of a person… (f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part.

(Insurance (Vehicle) Regulation, s. 96(f)).

 

This provision is significant because it means that where an injury results party from an accident and partly from sickness or disease, it will not be covered by Part 7.

 

In Kostantinos Polykandriotis v. Insurance Corporation of British Columbia (1980) B.C.D. Civ. 1955-01 (Co. Ct.) the plaintiff was admitted to hospital after an accident and the next day had a heart attack. There were other complications for the plaintiff in hospital and about six weeks after the accident, while still in hospital, she had a second heart attack from which she died. The court held that the heart attacks were caused partly by the accident (and its related stress) and partly by the plaintiff’s prior medical problems and damaged heart. Because the plaintiff’s previously damaged heart was at least a factor in the plaintiff’s death it was found that her death was caused indirectly by sickness or disease and the exception in s. 96(f) applied.

 

In Mawji v. Insurance Corp. of British Columbia, 2001 BCSC 1610 the plaintiff suffered from the “disease” of osteoarthritis before she was involved in an accident. At the time of the accident her disease was, for all intents and purposes, asymptomatic, but the accidents exacerbated her condition to the point where she needed a knee replacement. She may have needed a knee replacement even absent the accident, but when that would have been was uncertain. The court held that the plaintiff’s post-accident knee problems had been caused in part, and indirectly, by her pre-accident underlying “disease” of osteoarthritis and Insurance (Vehicle) Regulation 96(f) was held to disentitle the plaintiff to Part 7 benefits.

 

In Wafler v. Insurance Corporation of British Columbia, 2008 BCSC 1387 the plaintiff had a pre-existing degenerative lumbar spine condition that caused back pain from time to time, but he was not disabled from working. After an accident which exacerbated the plaintiff’s symptoms he was disabled from working and claimed Part 7 benefits. The court said that “a pre-existing disease which is aggravated must meet the “but for” test in respect of the total disability in order to bring it within the s. 96(f) exclusion” (para. 27), meaning that ICBC must prove that absent the pre-existing sickness or disease the plaintiff would not have a disability that entitled him or her to Part 7 benefits. On the facts of that case, the court found that ICBC had established that “but for his degenerative disease, Mr. Wafler would not be totally disabled [from work]” (para. 29) and therefore held that the plaintiff was not entitled to ongoing Part 7 benefits.

 

The above cases confirm that where a post-accident condition would not be experienced absent the plaintiff’s pre-existing sickness or disease the plaintiff will not be entitled to Part 7 benefits. The plaintiff would be able to claim for such losses in a tort claim, if available: Mawji v. Insurance Corp. of British Columbia, 2001 BCSC 1610 at para. 13.

 

 

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