Opinion

Hergott: Unjust clause should have been avoided

A designated driver is seriously injured when her drunk passenger grabs the steering wheel, causing her to lose control and crash.

Fair financial compensation for her injuries and losses is assessed at close to $800,000. ICBC denies the claim and a decision released by the court on Feb. 3 affirms ICBC’s denial.

It’s an affront to all that is good and right in the world. If anyone should be fairly compensated for injuries caused in a crash, it’s a designated driver injured by the very drunken behaviour she had tried to protect the rest of us from.

The injustice is compelling, and it made headlines. The headlines failed to identify the true source of the problem that got in the way of this lady being fairly compensated—a failure in legislative drafting.

ICBC liability insurance doesn’t come from a traditional insurance policy. It is a creature of legislation.

When we buy liability insurance from ICBC, we are not purchasing a policy drafted by the insurance company, we are purchasing a set of protections drafted by our provincial government.

Had the exact same words been contained within an insurance policy, the result might well have been different because the court follows different rules when interpreting insurance policies than they follow when interpreting legislation.

One standard rule of statutory interpretation is that the court should avoid an interpretation that would render any portion of the legislation to be meaningless. This rule doesn’t apply to insurance policies.

The judge quoted from a text book on the point: “It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose…every word and provision found in a statute is supposed to have a meaning and a function.

“For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant.”

Our “legislated” insurance policy contains a separate provision specifically allowing an innocent victim who is not an occupant of a vehicle to recover against a passenger of the vehicle who causes a crash. Had it been a pedestrian or other person outside this vehicle who had been injured, he or she would have recovered fair compensation from ICBC.

By creating this specific protection for non-occupants, those who drafted the legislation excluded occupants from coverage. Had they simply left that provision out, both occupants as well as non-occupants would be covered if a passenger causes a crash.

This injustice would have been avoided.

This is one of many, many examples where the courts apply the law that we have created.  Except in very particular circumstances, such as when the law offends the Charter of Rights giving the court the power to strike it down, the courts are bound to apply the law however unjust the result. If we don’t like the laws we create, we need to change them.

The ball is squarely in the hands of our provincial government to correct the injustice arising from what appears to have been poor legislative drafting.

The sooner the legislation is amended, the sooner designative drivers can feel protected by the ability to claim fair compensation if injured as a result of their drunk passenger causing the vehicle to crash.

 

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