One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.
Clancy v. Clancy, 2018 BCCA 448
Adam v. Insurance Corporation, 2018 BCCA 482
AREAS OF LAW: Insurance law; Personal injury; Hit and run; Definition of “highway”
~A sandbar that is used by members of the public to access fishing areas, but is not maintained or improved by public entities, is not a “highway” for the purposes of the Insurance (Vehicle) Act.~
This case raised the novel question of whether a sandbar that appears seasonally in the Fraser River is a highway for the purposes of the Insurance (Vehicle) Act. The sandbar is approximately a kilometre wide and is used by members of the public to park, fish, and camp along the river. At all relevant times, the sandbar was a public thoroughfare accessible by motor vehicle from the highway. The Respondent, Robert Adam, had parked his truck and camper on the sandbar near a number of other vehicles. He was asleep in the camper in the early morning hours when a white Jeep pulled up. The young male occupants attempted to steal the Respondent’s cooler. He chased them away, but they returned about a half hour later and stole the cooler, which was full of beer. The unidentified men also appeared to have tipped over the Respondent’s generator. The Respondent approached the Jeep, but it suddenly drove off and struck him as it went. He suffered injuries as a result. At trial, the judge acknowledged that if the accident did not take place on a “highway”, the action must be dismissed. The judge considered the definitions of highway in the Motor Vehicle Act and the Transportation Act. The judge applied a “broad purposive approach” in interpreting highway, giving consideration to the fact that the definition in the Motor Vehicle Act is not exhaustive. The judge concluded that the sandbar was a “public way”, bringing it within the definition of highway under the Transportation Act. It was used both as a parking lot and a route between the main highway and the fishing areas. The judge also noted that even a temporary path may be a highway under the legislation if it can be shown that it meets the legislative definition.
The appeal was allowed. The Appellant, the Insurance Corporation of British Columbia, took the position that the judge erred in concluding that the sandbar was a highway. It argued that s. 24 of the Insurance (Vehicle) Act, which sets out the remedy for damage in a hit and run accident, is not a conventional provision of insurance coverage and should not be interpreted as liberally as the trial judge did. The issue raised a question of mixed fact and law. If the judge correctly interpreted the relevant provisions, the application of his interpretation to findings supported by the evidence to determine whether the sandbar was a highway was a fact-sensitive one, reviewable on a standard of palpable and overriding error. The Court of Appeal employed several tools of statutory interpretation, including the consideration of Hansard, to ultimately find that the sandbar was not a highway for the purposes of the legislation. The Court found that the Transportation Act establishes a complete code, and the only means by which a highway can come into existence in British Columbia are set out in s. 1 of that Act. In particular, public funds must have been expended on part of the travelled road, and this was not established in this case. Furthermore, in considering the common law definition of a public way, the Court found that the sandbar was a destination rather than a “way” as defined at law. A “way” is a path or a track for travelling along. The paramount purpose of the sandbar was to park or camp for recreational purposes, and driving on it to traverse it did not convert it into a public way.
Case comment by: Vincent R.K. Orchard, Q.C. and Morgan Baker, Counsel for the Appellant ICBC
To paraphrase Mr. Bumble, the beadle in the Dickens novel Oliver Twist, experience might suggest that a sandbar in the Fraser River near Chilliwack, B.C., not connected to any infrastructure of roads and often submerged in the river, would not be a highway either by statute or by common law. Yet, as appeal counsel, we were asked by an automobile insurance client, the Insurance Corporation of British Columbia, to appeal that very legal conclusion arrived at in the Supreme Court of British Columbia on a summary trial application. We mean no disrespect to the summary trial judge who appropriately considered the applicable statutory framework to interpret the contextual statutory meaning of highway. However, the lower court did not have the benefit of a much fuller legal argument presented in the Court of Appeal including submissions from the Attorney General’s office and local municipalities, as Intervenors.
The Adam decision turned on the definition of “highway” for the purposes of the “hit-and-run” provisions of the Insurance (Vehicle) Act, which incorporates the definition of highway in the Motor Vehicle Act, which in turn included the definition of highway in the Transportation Act, S.B.C. 2004, c. 44.
The decision of the Court of Appeal of British Columbia focused on construing the definition of highway in the Transportation Act.
The Transportation Act defines highway as follows:
“highway” means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by any of the following:
(a) deposit of a subdivision, reference or explanatory plan in a land title office under section 107 of the Land Title Act;
(b) a public expenditure to which section 42 applies;
(c) a common law dedication made by the government or any other person;
(d) declaration, by notice in the Gazette, made before December 24, 1987;
(e) in the case of a road, colouring, outlining or designating the road on a record in such a way that section 13 or 57 of the Land Act applies to that road;
(f) an order under section 56 (2) of this Act;
(g) any other prescribed means;
The principal issue in this appeal was whether the ‘means’ described in (a) through (g) modified every term in the preceding list (public street, road, trail, lane, bridge, etc.), or modified only the last item in the list: i.e., “any other land or improvement”. The Court of Appeal concluded that when read within the context of the entire Transportation Act, there was no interpretive ambiguity in this definition: the modifiers listed in (a) to (g) apply to each place described in the preceding list. To be a highway, at least one of the ‘means’ in (a) to (g) must be applicable to the place in question (e.g. a “public way”). It would not be enough that the place comes within the meaning of, e.g., a “public way”.
The Court of Appeal also confirmed that there is no flexibility in the Transportation Act definition of highway. That definition does not change just because it is incorporated by reference into the Insurance (Vehicle) Act.
An interesting practice point arose during the appeal process. On appeal, it was recognized that the provincial and municipal governments should probably have been notified of the summary trial given the governance and liability implications if the sandbar were found to be a highway. The record at the trial level did not include evidence of the owner of the sandbar. The Court of Appeal required ICBC to notify the pertinent governments of the appeal and their participation in the appeal was clearly of assistance to the court. It is advisable that counsel have regard to, and give notice to parties whose interests may be affected by the interpretation of provincial statutes affecting Crown and local government property and roads.
Overall, when preparing for this appeal (and reviewing hundreds of years of common law and statutes interpreting the meaning of “highway”, “public way”, and “right of way”) it became apparent that the development of present-day British Columbia is very much linked to the system of roads and highways throughout the province and the legal framework that has accompanied such development. This ruling should provide some needed clarity in various contexts where the Transportation Act definition of “highway” is in issue.