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Part 7 benefit entitlement

If I am injured while unloading an ATV from my pickup truck, am I entitled to accident benefits under my no-fault coverage with ICBC? What if I didn’t even turn it on, but just put it in neutral and rolled it down the ramp?

In today’s decision (Prosofsky v. ICBC 2016 BCSC 1586), a fellow had been injured as described above. As he “backed” the ATV down the ramp, it flipped and he was severely injured. Under Part 7 of the Insurance (Vehicle) Act , regardless of fault, an insured person may claim medical and rehabilitation benefits relating to their motor-vehicle injury. Over the five years following his injury, ICBC had paid rehabilitation benefits, and reimbursed some expenses. After the five years, ICBC notified the fellow that they would no longer honor his claim, advising that this was because the ATV could not be licensed and was therefore exempt from coverage under the Insurance (Vehicle) Act. He applied to the court, seeking reinstatement of his Part 7 benefits.

At issue was whether the injured fellow was an “insured person” as defined by the legislation. He argued that he was, as the injury arose out of the use and operation of his pickup truck. ICBC argued that he was not an “insured person” because he was an occupant of a vehicle (the ATV) that could not be licensed. Madam Justice Hyslop summarized the cases pertaining to operation of a vehicle and occupying a vehicle, before providing her finding that the plaintiff was entitled to reinstatement of Part 7 benefits. In reaching this conclusion, she found that he was using the pickup for its intended use, and that he was not an “occupant” of the ATV when unloading it from the pickup:

[66]         I conclude that the events of July 24, 2005 must be guided by the Amos, Marjak and Wormell line of case law. These decisions require the courts to give a broad interpretation of the defendant’s statutory scheme so as to be eligible for Part 7 benefits. The plaintiff was an occupant of his pick-up truck and was transporting his ATV, intending to use it for its recreational purpose. Instead, as he was unloading the ATV, he was injured. He was not an occupant of the ATV, nor was he driving or operating it when he was injured, as contemplated by the Regulation.

[67]         Pick-up trucks are used not only to transport passengers, but to transport items in their boxes. That is the purpose which differentiates them from motor vehicles such as sedans and SUVs. The plaintiff was injured as a result of using his pick-up truck to transport an item.

[68]         The plaintiff and defendant agree that had the plaintiff been injured removing a bicycle from the back of his pick-up truck, he would be entitled to Part 7 benefits. I find that the situation here is analogous.

[69]         The plaintiff was operating the pick-up truck to transport the ATV as he had done on several occasions. He was using the pick-up truck in the manner it was intended; that is, to transport and to carry an item; in this case an ATV.

[70]         In Amos, Mr. Justice Major emphasized that the final version of s. 96(b)(i)’s use of the word “ownership” and “use” was intended to provide a broader coverage for Part 7 benefits pursuant to s. 79 of the Regulation. As a result, he established the two-part test in Amos. The Supreme Court of Canada found that when “ownership”, “use” or “operation” of a motor vehicle contributes to or adds to the injury, the plaintiff is entitled to coverage of Part 7 benefits.

[71]         The plaintiff in this case was using the pick-up truck in an ordinary and well known way. In Marjak, the first part of the Amos test was met when the plaintiff was a passenger in a vehicle. In Wormell, Justice Loo found that a truck that was being used to “transport” and “unload” goods met the first branch of the Amos test: para 25. The situation before the court is similar; the plaintiff was using his pick-up truck to transport and unload his ATV.

[72]         As stated above, the parties agree that if the plaintiff was unloading a bicycle from his truck, he would be entitled to Part 7 benefits. The plaintiff was unloading the ATV instead of a bicycle. He went into the box of his pick-up truck for the sole purpose of unloading the ATV, which he did in the manner I have described.

[73]         The next issue is whether the plaintiff’s entitlement to Part 7 benefits is barred by s. 96(b)(i). I find it is not. I conclude that the plaintiff was not an occupant of the ATV.

[74]         The plaintiff was not driving the ATV. He could not have driven the ATV in the back of the pick-up truck.

[75]         I conclude that the plaintiff was not operating the ATV, nor was he an occupant of it. He was an occupant of his pick-up truck. I further conclude the plaintiff was not struck by the ATV. Therefore, s. 96(b)(i) does not apply.

[76]         I conclude that the plaintiff is entitled to the re-instatement of Part 7 benefits.