Carfra Lawton LLP | Victoria BC

“Highway” to be interpreted narrowly in hit-and-run claims

A plaintiff sued ICBC under the hit and run legislation after he was struck by an unidentified vehicle and driver on a kilometer-wide sandbar adjacent to the Fraser River in Chilliwack [Adam v. ICBC, 2018 BCCA 482]. When it is not underwater, the sandbar is accessible to vehicles from the highway for parking, camping and fishing. The plaintiff was asleep in his camper on the sandbar when the unknown driver and other occupants in the unidentified Jeep drove up to the camper and attempted to steal his property. As the plaintiff approached the Jeep it drove away suddenly, striking him and injuring his knee in the process.

The hit and run legislation allows claimants to seek compensation directly from ICBC where damage arises from the use or operation of a vehicle by an unidentified vehicle and driver on a “highway” in BC. A Trial Judge had allowed Adam’s claim, but the Court of Appeal reversed the decision, holding that the Trial Judge had taken an overly broad interpretation of the definition of “highway” in the hit and run provision. The Court of Appeal held that including every “public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, and any other public way” within the definition of “highway” would result in adverse consequences and uncertainty. Insurance legislation is not subject to the same interpretive principles as insurance policies and is not resolved in favour of an insured if it is found to be ambiguous. Similar to parking lots, the primary purpose of the sandbar is parking and as such, the Court of Appeal held that it cannot be considered a “highway” for the purposes of hit-and-run coverage. The plaintiff’s claim was dismissed on the appeal.

Case law summary by Annie Olson