A drunk and unruly passenger is still “using” the vehicle, even if he is (thankfully) not driving it. This is good news for designated drivers, whose intoxicated passengers don’t always pass out like a light on the way home and sometimes interfere with the DD’s otherwise safe driving. As long as the intoxicated person is a passenger with the owner’s consent, or is a member of the owner’s household, the passenger is an “insured” and ICBC will indemnify him for losses that he causes.
In Felix v ICBC, 2015 BCCA 394, Ms. Felix’s boyfriend got drunk and argumentative after a soccer game, and Ms. Felix drove them both home. On the way, her boyfriend grabbed the steering wheel causing a collision in which he was killed and Ms. Felix seriously injured. Ms. Felix successfully sued her boyfriend’s estate, and asked ICBC to cover the $863,242 in damages and costs on the basis that her boyfriend was an ‘insured.’ Section 64 of the applicable regulations* define an “insured” as “an individual who, with the consent of the owner or while a member of the owner’s household, uses or operates the vehicle described in the owner’s certificate.” Ms. Felix owned the vehicle, and her boyfriend was a passenger with her consent. He was not operating the vehicle, but was he “using” it?
The legislative scheme was meant to provide a universal, compulsory insurance program and access to compensation for those who suffer losses from motor vehicle accidents. As such, and based on other legislative contexts in which the word “use” had been considered, the Court found that the concept of “use” is broadly defined. The Court held that being a passenger in a motor vehicle is an “ordinary and well-known” use of a vehicle, and a passenger uses a vehicle when he is being transported from A to B. This is true whether or not the passenger grabs the steering wheel or is simply passed out in the back seat. If the passenger causes a collision in any way, ICBC will indemnify him for those losses.
The Supreme Court of Canada recently refused ICBC’s application for leave to appeal this decision, making the BC Court of Appeal’s decision the law of the land in our province. This decision should provide comfort to designated drivers and others who accept the risks of transporting intoxicated and sometimes unpredictable passengers, making our streets safer.
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*Section 64 of the Revised Regulation (1984), BC Reg 447/83 under the former Insurance (Motor Vehicle) Act, RSBC 1996, c.231