The Attorney General of B.C. was jointly and severally liable with the uninsured driver of a stolen vehicle for the damages awarded to the deceased’s family for the wrongful death of an innocent motorist. The third-party ICBC was not required to contribute any portion of the damages.

McVea (Guardian ad litem of) v. TB, [2005] B.C.J. No. 363, British Columbia Court of Appeal

In this case, the Attorney General of British Columbia (“AGBC”) appealed from the order of the chambers judge which held it jointly and severally liable for damages with the uninsured driver of a stolen vehicle. ICBC cross-appealed from the order that it was required to contribute to the damages for which the AGBC was liable.

This dispute arose after the 14-year-old uninsured driver of a stolen vehicle and the police officer chasing him were found liable for the wrongful death of an innocent motorist. At trial, the uninsured driver was found 90% at fault and the police officer 10% at fault. The Police Act, R.S.B.C. 1996, c. 367, s 21, provides that no action for damages lies against a police officer for negligence in the performance of his duty. The Police Act also makes the AGBC vicariously liable for torts committed by provincial constables.

The uninsured motorist was unable to pay his 90% share of the damages and the plaintiff’s family therefore applied to ICBC for payment of their share of damages under the Uninsured Motorist Provisions of the Insurance (Motor Vehicle) Act and the Underinsured Motorist Provisions found in the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act. However, ICBC also refused to pay any portion of the family’s damages. The AGBC subsequently brought a third party claim against ICBC.

The AGBC and ICBC sought the opinion of the Supreme Court under Rule 33 of the Supreme Court Rules on questions concerning ICBC’s liability to pay any portion of the damages.

The AGBC appealed the chambers judge’s determination that the AGBC was jointly and severally liable with the uninsured motorist for 100% of the damages under s. 4(2)(a) of the Negligence Act. The AGBC argued that s. 4(2)(a) of the Negligence Act did not apply to it because only the police officer was found “at fault” as required by that section. The AGBC distinguished between “fault” and “liability”, defining “fault” as “blameworthiness” or “culpable”. The AGBC said that while it may be liable, it cannot be said to be blameworthy.

The Court of Appeal however, held that the liability attributed to the AGBC is the liability that would have attached to the police officer absent the immunity provision of the Police Act rather than some lesser form of liability. The effect of the Police Act is therefore to attribute the victim’s remedy against the police officer, who cannot be sued for damages, to the AGBC. This accords with the modern view that vicarious liability is a liability imposed without any finding of blameworthiness on the part of the person who is made vicariously liable.

ICBC cross-appealed the chambers judge’s decision that it was required to pay a portion of the 90% of the damages for which the uninsured motorist was found liable. The Court of Appeal noted that the chambers judge focussed her analysis on the entitlement of the family to claim under the uninsured motorist provisions of the Insurance (Motor Vehicle) Act and not on whether the AGBC had any entitlement to claim contribution and indemnity from ICBC under s. 4(2)(b) of the Negligence Act. The Court of Appeal therefore held that the AGBC had no right to claim contribution from ICBC under the family’s insurance coverage. This was because while the AGBC could claim contribution and indemnity from the uninsured motorist with whom it was jointly and severally liable under s. 4(2)(b) of the Negligence Act, only the family, which was insured, could make a claim against ICBC under the uninsured motorist provisions.

The issue of whether the assignment of the family’s rights, taken subsequent to the order of the chambers judge, would be effective to give the AGBC the entitlement to claim anything from ICBC, was not before the Court of Appeal.

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