The insured Plaintiff and driver of a vehicle with an expired owner’s certificate was entitled to an Order that ICBC indemnify her in a separate action pursuant to s. 49(1) of the Revised Regulation (1984) because s. 1(3) of the Regulation states that a reference to an owner’s certificate is a reference to a valid and subsisting owner’s certificate

Chamberlin v. Insurance Corp. of British Columbia, [2005] B.C.J. No. 1666, British Columbia Supreme Court

The Plaintiff sought an Order that the Defendant, ICBC, defend her in a separate action and indemnify her for any liability opposed upon her in that action, which arose out of her operation of a motor vehicle on February 10, 2003. The parties disputed the proper interpretation to be given to s. 49(1) of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 (“the Regulation”).

The relevant subsections of s. 49(1) state in part that ICBC shall indemnify an insured for liability imposed on the insured by law for injury or death of another or loss or damage to property of another that a) arises out of the use or operation by the insured of a vehicle not described in an owner’s certificate issued to the insured or to a member of the insured’s household, unless e) the vehicle is owned or regularly operated by the insured or g) the vehicle is not licensed under the Motor Vehicle Act, and the insured does not have reasonable grounds to believe the vehicle is licensed.

The first issue was whether any liability imposed on the insured in the other action could arise out of her use or operation as “the insured” of a vehicle not described in an owner’s certificate issued to a member of her household, as required by s. 49(1)(a). The Plaintiff argued that the vehicle she was driving was not described in an owner’s certificate issued to her nor to any member of her household at the time of the accident because the owner’s certificate had been allowed to expire and had not been renewed before the accident on February 10, 2003.

ICBC argued that the Plaintiff’s husband had a valid and subsisting owner’s certificate for the vehicle at the time of the accident because he continued to be the registered owner of the vehicle and because the vehicle registration was a part of a document issued by ICBC that included the owner’s certificate of insurance and vehicle licence as well as the certificate of vehicle registration. ICBC submitted that it is the vehicle registration as a part of the combined document which is to be considered the “owner’s certificate” within s. 49(1)(a). ICBC also submitted that the certificate of insurance and licence that had expired still described the vehicle and that there is no requirement in s. 49(1)(a) that the owner’s certificate be valid or subsisting as those words do not appear in the legislation.

The Court noted that s. 1(3) of the Regulations states in part that a reference to a certificate is a reference to a valid and subsisting certificate. Accordingly, the reference in s. 49(1)(a) to an “owner’s certificate” is a reference to a valid and subsisting owner’s certificate of insurance. As there was no valid and subsisting owner’s certificate of insurance for the vehicle issued to the Plaintiff or to a member of the household at the time of the accident, the Court found that the Plaintiff was entitled to the Order she sought, subject to the exceptions in subs.s (c)-(h) of s. 49(1).

The second issue was therefore whether subs.s (e) and (g) of s. 49(1) operated to deny the insured indemnity even if she satisfied the requirements of s. 49(1)(a). Subs. (e) provides that the insured is not entitled to indemnity if the vehicle is owned or regularly operated by her. The Plaintiff submitted that she rarely operated the vehicle while ICBC pointed out that in the excess policy on the vehicle, the Plaintiff was named as a driver along with her husband and that this was sufficient to conclude that the Plaintiff drove the vehicle regularly. Applying the ordinary meaning of the word “regularly” to the evidence, the court concluded that the Plaintiff did not regularly operate the vehicle and that subs. (e) was not applicable to deny her indemnity.

Subs. (g) was applicable to deny indemnity to the insured if she did not have reasonable grounds to believe that the vehicle was licensed. The Plaintiff was unaware that the coverage had expired on February 1, 2003. The court found that the Plaintiff’s reliance on her husband to renew the insurance gave her reasonable grounds to believe that the vehicle was licensed. Accordingly, subs. (g) was not applicable to deny the Plaintiff indemnity.

In the result, the Plaintiff was entitled to an Order that ICBC indemnify her pursuant to s. 49(1).

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