IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100721

Docket: S096414

Registry:
Vancouver

Between:

Brent Wormell

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before: The Honourable Madam
Justice Loo

Reasons for Judgment

INTRODUCTION

[1]            
This application involves an interpretation of ss. 64(a) and 72(1)
and (2) of Part 6 – Third Party Legal Liability, of the Revised Regulation
(1984) Under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 as
amended. The sections raise two issues which are simply described as the
coverage issue (s. 64), and the exclusion issue (s. 72).

[2]            
Brent Wormell obtained a judgment against Bradley Hagen for $570,288.71
as damages for personal injuries. Mr. Hagen owns a large Kenworth flatbed
truck with an attached crane. Mr. Wormell was helping Mr. Bradley
remove cargo when he jumped off the truck and sustained injuries. Mr. Justice
Goepel found that Mr. Wormell’s injuries and damages were caused by Mr. Hagen’s
negligence.

[3]            
At the time of the accident, Mr. Hagen had a policy of insurance
with the defendant Insurance Corporation of British Columbia (“ICBC”). On this
application Mr. Wormell seeks a declaration and order that ICBC pay him
the full amount of the judgment.

[4]            
ICBC contends that Mr. Wormell’s loss did not arise out of the use
and operation of a motor vehicle under s. 64:  it argues that at the time
of the accident, the outriggers were extended, and the truck ceased to be a
motor vehicle and became a crane (the coverage issue). Alternatively, ICBC
contends that his loss is excluded by s. 72 which excludes liability
arising out of the operation of attached equipment at a site (the exclusion issue).

THE FACTS

[5]            
The facts are generally set out in the reasons for judgment of Mr. Justice
Goepel in Wormell v. Hagen, 2009 BCSC 1166.

[6]            
Mr. Hagen and Mr. Wormell both live in the Merritt area. In
October 2003 Don Moses hired Mr. Hagen to pick up some goods Mr. Moses
(or his company) purchased at a Ritchie Bros. auction in Surrey, and haul the
goods back to Merritt.

[7]            
Mr. Wormell was friends with both Mr. Hagen and Mr. Moses.
He had some free time and accompanied them on their trip to Surrey.

[8]            
Mr. Hagen’s flatbed truck is described by Mr. Justice Goepel
in his reasons for judgment at para. 7:

[7]        Mr. Hagen owned
a large flatbed truck that was equipped with a Model 900-L crane mounted at the
centreline of the vehicle, immediately behind the truck’s cab and ahead of the
truck’s bed. The bed of the truck was 20 feet long x 8 1/2 feet wide. The crane
was equipped with a 27 foot boom, which had a maximum up angle of 79 degrees,
resulting in a minimum 5 foot working radius. The truck was also equipped with
four outriggers, two at the front mounted immediately beside the crane base and
two at the rear of the truck, stored in an extended position below the deck of
the truck. All four outriggers were hydraulically operated for horizontal and
vertical movement, and could be operated independently of one another.

[9]            
When the men arrived at Ritchie Bros. Mr. Hagen operated the crane
to load the goods onto his truck. They included a mobile portable sawmill, two
45 gallon drums filled with fuel, two large cement blocks, and some steel
plates.

[10]        
At the Hope weigh scales, the attendant informed Mr. Hagen that his
load was too wide and his truck was overweight. Mr. Hagen decided to
remove the portable sawmill, leave it at the weigh scale, continue on to
Merritt, and return the next day to pick up the sawmill.

[11]        
Mr. Justice Goepel described what occurred:

[17]      At the Hope weigh scales, the attendant advised
that the load was too wide, the truck was overweight, and that the fuel tanks
required documentation confirming they were gas-free. Mr. Wormell solved
the load width problem by extending the lights on the truck. Mr. Moses
communicated with Ritchie Bros. to obtain the necessary documentation
concerning the fuel tanks while Mr. Hagen prepared to reduce the weight on
the truck by removing some of the cargo.

[18]      While it is not clear on the evidence exactly when
the parties arrived at the weigh scales, it is common ground that when the
accident happened, night had fallen. While there was some artificial light from
light standards at the weigh station, vision was limited.

[19]      Before reducing any cargo Mr. Hagen first
moved the truck to an isolated area of the weigh station. He then set the
outriggers and levelled the truck. He next assisted Mr. Wormell in
removing the strapping from the load. The load appeared to be stable.

[20]      Mr. Hagen then returned to the truck to
operate the crane. He was situated in the crane operator’s position,
immediately in front of the truck deck on the driver’s side. He raised the boom
of the crane from the horizontal position so it was upright. He lowered the
crane hook to about two feet from the lifting hook on the sawmill.

[21]      Mr. Wormell climbed up on and walked across
the sawmill in order to attach a chain to the crane hook and the sawmill’s
pickup point. He testified the load appeared stable as he walked across it.
Facing Mr. Hagen, he looped the chain through the sawmill’s pickup point
and the crane’s hook, securing the chain onto itself with a hook on the chain.
He says he pulled the chain tight.

[22]      Having secured the
chain Mr. Wormell then turned his back to Mr. Hagen and began to
retrace his steps in order to get down from the sawmill. Mr. Wormell had
only taken a step or two and was still on top of the sawmill when he felt the
sawmill start to shift under his feet. Fearing for his safety he jumped out and
away from the load. He remembers Mr. Hagen yelling a warning to him. Mr. Hagen
does not remember this although he admits he may have yelled.

[12]        
Mr. Hagen’s truck was insured by ICBC. He did not have a commercial
policy of insurance for his business activities.

THE STATUTORY PROVISIONS

[13]        
Part 6 of the Revised Regulation (1984) Under the Insurance
(Motor Vehicle) Act, B.C. Reg. 447/83, as amended, provides in part:

Indemnity

64 Subject
to section 67, the corporation shall indemnify an insured for liability imposed
on the insured by law for injury or death of another or loss or damage to
property of another that

(a) arises out of the use or
operation by the insured of a vehicle described in an owner’s certificate[.]

Restrictions on indemnity — attached equipment

72 (1) 
In this section, "attached equipment" means machinery, apparatus or
equipment that is

(a) mounted on or attached to a
vehicle, and

(b) not required for the safe
operation of the vehicle on a highway.

 (2)  The
corporation shall not indemnify an insured for liability imposed by law for
injury, death, loss or damage arising, directly or indirectly, out of the
operation of attached equipment at a site where the attached equipment is being
operated, unless the attached equipment

(a) is used for
snow or ice removal from a highway or for sweeping, cleaning, sanding or
grading streets,

(b) is a side or
rear mounted power-operated platform,

(c) is attached
to a vehicle used for pleasure purposes,

(d) is attached
to a vehicle used as a wrecker, dump truck or fork-lift,

(d.1) is attached
to a vehicle used as a garbage truck, but only if the injury, death, loss or
damage did not arise, directly or indirectly, out of the operation of a crane
attached to the vehicle,

(e) is attached
to a vehicle used as a front-end loader or backhoe, or

(f) is attached to a vehicle used as a
mower.

ANALYSIS

1. Principles of Construction

[14]        
The general principles that apply when interpreting coverage and
exclusion provisions of insurance policies are as follows:

       1)       coverage
clauses should be construed broadly; and

       2)       exclusion
clauses should be construed narrowly.

See: Amos v. Insurance Corp. of British Columbia,
[1995] 3 S.C.R. 405 at paras. 18-19; Derksen v. 539938 Ontario Ltd.,
[2001] 3 S.C.R. 398 at paras. 49-52; and Marjak Services Ltd. v.
Insurance Corp. of British Columbia, 2004 BCCA 455 at para. 40.

[15]        
Although there are principles that apply specifically to the
interpretation of insurance policies, the general principles of statutory
construction still form the foundation for statutory interpretation.

[16]        
Section 8 of the Interpretation Act, R.S.B.C. 1996, c. 238,
directs the manner in which legislation is to be interpreted:

Every enactment must be
construed as being remedial, and must be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its objects.

[17]        
In Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, Mr. Justice
Iacobucci relied on the equivalent provision in Ontario’s act, combined with
Driedger’s approach to statutory interpretation:

[21]      Although much has been written about the
interpretation of legislation (see, e.g., Ruth Sullivan, Statutory
Interpretation (1997); Ruth Sullivan, Driedger on the Construction of
Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes");
Pierre-André Côté, The Interpretation of Legislation in Canada
(2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd
ed. 1983) best encapsulates the approach upon which I prefer to rely. He
recognizes that statutory interpretation cannot be founded on the wording of the
legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament.

Recent cases which have cited the above passage with approval
include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of
Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v.
Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada,
[1995] 3 S.C.R. 103.

[22]      I also rely upon
s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which
provides that every Act "shall be deemed to be remedial" and directs
that every Act shall "receive such fair, large and liberal construction
and interpretation as will best ensure the attainment of the object of the Act
according to its true intent, meaning and spirit".

2. The Coverage Issue

[18]        
Section 64 provides that ICBC shall indemnify an insured for liability
imposed on the insured by law for injury or death of another that “arises out
of the use or operation” of a vehicle described in an owner’s certificate. The Insurance
(Vehicle) Act, R.S.B.C 1996, c. 231, defines “vehicle insurance” in
s. 1 as insurance against liability arising out of bodily injuries “caused
by a vehicle or the use or operation of a vehicle”. “Vehicle liability policy”
is defined in s. 1 to mean a certificate or policy evidencing insurance
against liability arising out of bodily injury to a person caused by a vehicle
or the use or operation of a vehicle.

[19]        
There is no dispute that Mr. Hagen’s flatbed truck is a vehicle.

[20]        
In Amos, the Supreme Court of Canada considered s. 79(1) (in
Part 7) of the Revised Regulation (1984) Under the Insurance (Motor Vehicle)
Act. The language of that section is almost identical to s. 64(a)
except that s. 79(1) includes the word “ownership” and falls under Part 7
– Accident Benefits, whereas s. 64(a) falls under Part 6 – Third Party
Liability Insurance Coverage. The sections require the court to interpret the
words “arises out of the use or operation” of a vehicle.

[21]        
In Amos, the appellant (plaintiff) was driving his van when he
was attacked by a gang of six people. One of the gang members walked in front
of the van, pointed a gun, and shot the plaintiff. He sustained permanent
serious and disabling physical and mental injuries. The trial judge found that
the injuries were not caused by anything the plaintiff did as the owner of his
van but by his attackers. The van was merely the situs of the attack. The
B.C. Court of Appeal dismissed the appellant’s appeal.

[22]        
The Supreme Court of Canada allowed the appellant’s appeal and found
that while the section must not be stretched beyond its plain and ordinary
meaning, it should not be technically construed so as to defeat the legislative
intent.

[23]        
Major J. set out the two-part test to be applied in interpreting the
section, stating at para. 17:

[17]      In the same way, while s. 79(1) must not be
stretched beyond its plain and ordinary meaning, it ought not to be given a
technical construction that defeats the object and insuring intent of the
legislation providing coverage. The two-part test to be applied to interpreting
this section is:

                           
1)       
Did the accident result from the ordinary and well-known activities to
which automobiles are put?

                           
2)       
Is there some nexus or causal relationship (not necessarily a
direct or proximate causal relationship) between the appellant’s injuries and
the ownership, use or operation of his vehicle, or is the connection between
the injuries and the ownership, use or operation of the vehicle merely
incidental or fortuitous?

This two-part test summarizes the case law interpreting the
phrase "arising out of the ownership, use or operation of a vehicle",
and encompasses both the "purpose" and "causation" tests
posited in the jurisprudence.

[Emphasis
in original.]

[24]        
He then dealt with the first part of the two-part test, the purpose
test, and concluded succinctly at para. 18:

[18]      … The appellant here
was driving his van down a street; the accident clearly resulted "from the
ordinary and well-known activities to which automobiles are put". The
first part of the two-part test is satisfied.

[25]        
Here, Mr. Hagen’s flatbed truck was being used to transport, load, and
unload goods.

[26]        
The second part of the test to be met in determining whether an injury
arises out of the use or operation of the vehicle is whether there is some
causal relationship between the injuries and the use or operation of the
vehicle. The use or operation of the vehicle only needs to materially
contribute to the injury: Marjak Service Ltd. at paras. 52-53.

[27]        
Here, Mr. Wormell was engaged in unloading goods from the truck.
The use or operation of the vehicle materially contributed to his injuries.

3. The Exclusion Issue

[28]        
The relevant words of s. 72 provide that ICBC shall not indemnify
an insured for injury arising out of the operation of attached equipment at a
site where the attached equipment is being operated.

[29]        
Mr. Wormell relies on Twylight Pressure Controls Ltd. v. The Dominion
of Canada General Insurance Company, 2000 BCCA 26. In that case the
plaintiff company owned and operated a service truck used in seismographic
activities for oil and gas exploration. The truck was fitted with a tidy tank
for transporting gasoline to fuel generators and other equipment in the field. The
truck itself operated on diesel fuel.

[30]        
The plaintiff was visiting his cousin at Twylight’s business premises. The
cousin was putting gasoline into the tidy tank when gasoline spilled onto the
floor because of an open valve at the bottom of the tank. A resulting gasoline
explosion and fire injured the plaintiff. ICBC argued (as it does in the case
at bar) that the loss was excluded by s. 72(1) and (2) as the liability
arose out of the operation of “attached equipment”.

[31]        
The trial judge concluded that there was insufficient evidence to
determine whether the tank was “attached” to the truck, but also found that
where the accident occurred was not a “site” within the meaning of the
exclusion. Chief Justice Finch stated:

[6]        I respectfully agree
that the filling of this container on the truck with gasoline, for the purpose
of its transportation was an ordinary use of the truck and therefore within
I.C.B.C.’s insuring agreement. I also agree that filling the container did not
involve the operation of attached equipment at the site, within the meaning of
the exclusion.

[32]        
ICBC argues that Twylight Pressure Controls Ltd. is
distinguishable because the trial judge was unable to determine on the evidence
whether the tidy tank was attached equipment. However, what is clear is that where
the tank was being filled was not a site within the meaning of the exclusion.

[33]        
ICBC says that the word “site” should be given its plain meaning. The Canadian
Oxford Dictionary gives the following definition:

site n. 1
the ground chosen or used for a town or building. 2 a place where some
activity is or has been conducted (camping site; launching site).

The Concise Oxford English Dictionary,
11th ed., gives the following definition:

site ■ n. 1
an area of ground on which something is located. 2 a place where a
particular event or activity is occurring or has occurred.

[34]        
ICBC argues that once the outriggers were extended and the vehicle
levelled, the truck was no longer operating as a motor vehicle and became a
large commercial crane. Whenever or wherever that occurs, it occurs at a site. Therefore,
the isolated area at the weigh scale was the site.

[35]        
In my view, whenever or wherever the attached equipment is being
operated becomes a site, the words “at a site” at s. 72 become superfluous.

[36]        
Counsel for ICBC concedes that he wants the Court to read s. 72 as
if the words “at a site” were omitted. However, when interpreting a provision
in an insurance contract or legislation, all of the words must be considered.

[37]        
ICBC relies on Prudential Assurance Co. v. Manitoba Public Insurance
Corp. [1989] 3 W.W.R. 758 (Man. Q.B.). However, I find that case
distinguishable. There, a concrete pumping truck with an attached 90 foot boom
was at a construction complex pumping concrete when the boom of the pumping
unit contacted an overhead wire and electrical current caused damage to the
truck. The exclusion clause was expressly stated not to apply to machinery or
apparatus, including attached equipment or apparatus, while the machinery or
apparatus is in actual use or operation for its functional purpose at the site
of operations.

[38]        
I do not think it can be said that an isolated area of a government
weigh station at night, is a site in the way the word is ordinarily used—such
as a construction site, building site, or work site. Mr. Wormell was
injured while Mr. Hagen’s truck was being put to its ordinary use. The
truck was required by law to stop at the weigh scale, and the crane was
unloading an item because the truck was overweight. To adopt the interpretation
urged by ICBC would be interpreting the exclusion clause narrowly.

[39]        
I conclude that the attached crane was not operating at a site and
coverage is therefore not excluded by virtue of s. 72.

CONCLUSION

[40]        
The plaintiff is entitled to the relief it seeks as set out in the
notice of motion:

       1)       a
declaration that the defendant Insurance Corporation of British Columbia is liable
to pay the full amount of the judgment awarded to the plaintiff in Kamloops Action
No. 35570 against Bradley Dean Hagen, plus the claim for costs and any
interest accrued or accruing, to the limit of the plan or policy of insurance
Bradley Dean Hagen had in place with the Insurance Corporation of British
Columbia over a 1994 Kenworth truck on October 7, 2003; and

       2)       costs
of this action.

“Loo J.”