Considering Being The Designated Driver This Weekend? Read This First:

A controversial Supreme Court of British Columbia ruling released February 3, 2014, Felix v. Insurance Corporation of British Columbia, 2014 BCSC 166, has highlighted a glaring legislative drafting error by the BC Government. Due to this apparent oversight, the Court has ruled that designated drivers are not covered by third party insurance. This means that, should a designated driver be injured in a car crash caused by an impaired passenger, the Insurance Corporation of British Columbia (“ICBC”) has no obligation to compensate him or her for that injury.

While this ruling applies to any situation where a passenger in a motor vehicle intentionally interferes with the vehicle driver, it is particularly relevant to designated drivers, due to the unpredictability of how an impaired person will react and what they might do in any given situation.

Clearly, this ruling provides a powerful disincentive for anyone to volunteer as a designated driver, and arguably, makes it more likely that people will get behind the wheel while impaired. How did the Court come to such a disturbing conclusion?

In 2006, Marnetta Felix was driving her impaired boyfriend, Kevin Hearne, home after a soccer tournament. Mr. Hearne, who was seated in the front passenger seat, grabbed the steering wheel, causing the car to leave the road. Mr. Hearne was killed and Ms. Felix was seriously injured in the accident.

Ms. Felix sued Mr. Hearne’s estate for damages for her injuries. ICBC was put on notice of the proceedings but declined to participate. The plaintiff was awarded damages of $791,950 plus costs, which were assessed in the amount of $71,292.63. Ms. Felix then sued to recover from ICBC the total amount of $863,242.63, plus post-judgment interest.

Based upon the Insurance (Vehicle) Act and Insurance (Vehicle) Regulation (the “Act”), the legislation which contains the content of the compulsory Autoplan insurance agreement between British Columbia drivers and ICBC, the Court ruled ICBC did not have an obligation to pay the judgment.

In short, the Act would have required ICBC to pay the judgment if the plaintiff had not been an occupant of the car. However, the Court found ICBC did not have to pay the judgment because the plaintiff was an occupant of the car, and the Act is silent and makes no allowance for compensation for occupants.

To be clear then, the Act stipulates that:

(a) if the negligent act of a passenger injures someone outside the car (i.e. pedestrians and occupants of other vehicles), that person can claim compensation from the passenger; and

(b) if the negligent act of a passenger injures someone inside the car, that person cannot.

The question becomes, is the passenger’s conduct in (a) any less blameworthy than in (b)? The BC Government seems to think so.

The Court commented on the incongruity of the ruling stating :

The consequence of this interpretation as regards designated drivers is one which some may find disturbing. If that consequence was unintended, that is a matter for consideration by the government.

This statement reflects a fundamental tenet of Canadian law. The courts are the interpreters and arbitrators of the law. The courts do not actually make the law and do not have power to pass legislation. The legislative branch of government performs this function, and any changes to the law must come from the legislature itself.

Thankfully, this troubling outcome has not gone unnoticed. BC Attorney General, Suzanne Anton, and Transportation Minister, Todd Stone, have stated they are reviewing the decision.

Let us hope the BC Government sees to it the Act is amended to correct this substantive oversight, and soon.

Stay safe. Always drive sober, never ride with an impaired driver, and if you suspect someone is driving while impaired, call 9-1-1.

You need someone truly on your side. Why settle for less? Contact Einfeld Law for a free, initial consultation at (250) 712-0001, visit our website at or find us on facebook.

Einfeld Law is a highly knowledgeable and experienced BC personal injury law firm specializing in motor vehicle accidents, motorcycle accidents, and other negligence claims involving bodily injury. We have successfully litigated many ICBC and other insurance claims, including out of province, wrongful death, brain injury, spinal cord injury, whiplash, soft tissue injury, and all other bodily injury claims. We have collected millions of dollars on behalf of our clients. We never act for ICBC or other insurance companies.

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