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Court of Appeal Rules ICBC Doesn’t Have to Pay

Do teenagers have the same responsibilities as adults when riding as passengers in cars?  What about a 17 year old who takes a ride in a friend’s mom’s car – but when the car is driven by an entirely different friend, and the mom isn’t around?

The British Columbia Court of Appeal recently considered an ICBC case where a young plaintiff (then 17) had accepted a ride with a 15 year old who had neither a license nor consent of the car’s owner to operate the vehicle (Schoenhalz v Insurance Corporation of British Columbia 2017 BCCA 289).  Without that consent (which was clearly absent, and not at issue in the appeal) the 15 year old driver was not covered under the owner’s insurance policy.  However, ICBC has insurance available for persons injured by uninsured drivers – and the trial judge had found that the 17 year old could access that policy.

The issue before the Court of Appeal was whether or  not the 17 year old plaintiff knew or ought to have known that the vehicle was being operated without the consent of the owner.   That piece was important, because plaintiffs injured by uninsured motorists cannot collect from the fund in those circumstances.  That rule comes from the legislation, but is also just logical – if you knowingly get in a stolen or “borrowed” car as a passenger, you don’t get the benefit of the owner’s insurance.

The particular question the court was faced with was whether this particular plaintiff – a 17 year old – was held to the standard of the reasonable person generally, or to the standard of a reasonable 17 year old in her particular shoes.  That standard makes quite a difference – while a sober adult looking at the situation might conclude that clearly an unlicensed 15 year old did not have the consent of the vehicle’s owner, the trial judge had concluded that a 17 year old girl at a camp out with her friends and directed to take the vehicle by the oldest person in the group (a 20 year old) might reasonably believe that the 20 year old had the ability to give her and her 15 year old friend permission to drive the vehicle.

The Court of Appeal considered the law of negligence at length, discussing the applicability of the reasonable person standard to children, before concluding that the plaintiff indeed ought to have known that the vehicle was being driven without consent.  The appeal was allowed – the significant consequence of which being that the plaintiff would not have any access to the uninsured fund, and would therefore end up without compensation:

[44]         Having canvassed counsel on this line of cases and on the “adult activity” line most recently considered in Nespolon v. Alford (1998) 110 O.A.C. 108, lve. to app. dism’d. [1998] S.C.C.A. No. 452, I do not find it necessary to consider them further in this case. Both lines concern the law of negligence as applied to young persons – but this is not the context before us. As I read s. 91, this case is concerned only with whether a reasonable person in the plaintiff’s place ought to have known Ms. Reeves was driving without the owner’s consent. In my opinion, a reasonable person would (as the trial judge here acknowledged) have known this; and even if one took into account the plaintiff’s age and experience, the test would also be met. As Mr. Brown submits, the plaintiff, age 17, had a driver’s license and was aware Ms. Reeves was too young to be licensed and that the owner’s permission was needed to drive the Camaro.

[45]         The trial judge reasoned that while it would not be reasonable for an adult to assume that Luke “was able to give [the girls] Steven’s permission when he directed them to take the car”, it had been reasonable for an “incredibly young” 17-year-old girl to have believed he would. With respect, it seems to me that the trial judge here erred in applying a largely subjective standard in the face of statutory wording that has long connoted a well-understood objective standard. With respect, a reasonable person “ought to have known”, and indeed would have known, that neither Steven Hammond nor his mother was consenting to the Camaro being driven by an unlicensed 15-year-old. I agree with counsel for ICBC that as a matter of public policy, there is no rationale for holding the plaintiff to a lower standard in relation to her decision to become the passenger of Ms. Reeves.

[46]         In my opinion, if Ms. Schoenhalz did not “know” that the car was being driven without the owner’s consent, she “ought to have known” that this was the case. I would allow the appeal and set aside the order granted by the trial judge in this proceeding.