The law creating the Insurance Corporation of British Columbia, ICBC, essentially prohibits an owner, driver or passenger from entering into a contract to exclude liability while in use and operation of a motor vehicle.
The majority of our Court of Appeal have determined that such a waiver or release is contrary to the nature of the scheme itself and the interests identified by the legislature in its enactment(Niedermeyer v. Charlton,2014 BCCA 165), overturning the early decision: Zip Lining Injury Claim Dismissed Due to Signed Release and Waiver.
These waivers have become common for activities such as zip lining, wilderness trips, skiing, and other recreational activities that require organizers to transport participants to remote locations in vans or buses.  These vehicles must be insured with ICBC and this case confirms that during the trip to the location, participants can still expect to be covered by ICBC third party liability insurance. The organizers of these activities are no longer permitted to contract out of liability for the negligent operation of a motor vehicle.
The words of the legislation creating the ICBC scheme are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the object and intention of the Legislature. As Judge Garson for the majority states,

[90] While it is clear that none of these provisions on their own invalidates the exclusion clause here at issue, it is my opinion that the scheme taken as a whole lends support to the appellant’s argument that there is a compelling public policy interest at stake in this case. The public policy embraced by the legislative scheme is to provide a universal, compulsory insurance program as part of the legislature’s efforts to ensure safety on the roads and access to compensation for those who suffer losses when those measures fail.

[91]  Moreover, it would seem to me that to interpret the legislative scheme, in its entirety, as permitting an owner or driver to exclude by contract the operation of the “universal compulsory vehicle insurance” is contrary to generally accepted principles of statutory interpretation.

Organizers of these recreational activities should seek advice about how this may change their risk exposure and should consider ensuring maximum ICBC policy limits are in place. For assistance contact us at 604-633-4878.
Posted by ICBC Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment