Who is an insured under Part 7?
This page provides information on who is an insured under Part 7 of the Insurance (Vehicle) Regulation. This is a very important topic because only “insureds” are entitled to payment of benefits under Part 7.
Part 7 of the Insurance (Vehicle) Regulation is considered to create a contract of insurance between ICBC and persons eligible for Part 7 benefits:
Part 7 of the Regulation constitutes a policy of insurance between ICBC, as insurer, and the plaintiff, as insured…Although the plaintiff argued at the hearing of this appeal that Part 7 of the Regulation should be interpreted as social welfare legislation, I agree with counsel for ICBC that the contractual nature of the relationship is clearly established in the case law and legislation.
(McIlvenna (litigation guardian of) v. Insurance Corporation of British Columbia, 2008 BCCA 289 at para. 22).
Like for other contracts of insurance, in order to claim benefits under the contract the claimant must be an “insured”.
Section 78 of the Insurance (Vehicle) Regulation provides the following definition of who is an insured for the purposes of Part 7:
(a) a person named as an owner in an owner’s certificate,
(b) Repealed. [B.C. Reg. 257/86, s. 21.]
(c) a member of the household of a person named in an owner’s certificate,
(c.1) an insured as defined in section 42 who is not in default of premium payable under section 45,
(c.2) a member of the household of an insured described in paragraph (c.1),
(d) an occupant of a vehicle that
(i) is licensed in the Province and is not exempted under section 43 or 44 of the Act, or
(ii) is not required to be licensed in the Province, but is operated by a person named in a driver's certificate,
(e) a cyclist or pedestrian who collides with a vehicle described in an owner’s certificate, or
(f) a resident of the Province who is entitled to bring an action for injury or death under section 20 or 24 of the Act, and includes the personal representative of a deceased insured;
(Insurance (Vehicle) Regulation, s. 78).
Plain language explanation of who is an insured
Although a number of technical terms are used in the above definition, the words used indicate that generally the following persons will be “insureds” entitled to claim Part 7 benefits:
- anyone who owns a vehicle insured in BC (i.e. these are people who would have an “owner’s certificate), or who lives in the same household as such a person;
- A BC resident who has a BC driver’s license and no outstanding debt to ICBC (i.e. these are people who are covered by section 42 and not in default of amounts under section 45), or who lives in the same household as such a person;
- a person who was in a BC licensed vehicle when the accident occurred (but excluding vehicles owned or operated by the Government of Canada or the governments of other provinces);
- a cyclist or pedestrian injured by a BC plated vehicle;
- a BC resident who is injured by the driver of an uninsured vehicle; or
- a BC resident who is injured by a hit and run driver.
Note that the claimant only has to meet one of the criteria in order to be eligible for Part 7 benefits, and this generally results in most people injured in motor vehicle accidents in BC being entitled to Part 7 benefits. However, where a claimant is an insured under different certificates (e.g. under an owner’s certificate for a vehicle the claimant owns) and is also an insured under another owner’s certificate (e.g. where a member of a household also owns a vehicle)) there may be different levels of coverage available under the different certificates and the insured might be entitled to increased benefits depending on which certificate the claim is made on. See s. 104 of the Insurance (Vehicle) Regulation regarding which certificate is primary.
If the claimant relies on one of the subsections of the definition of insured that refer to being a “member of a household”, then the cases dealing with what it takes to be a member of a household have to be considered.
In Gray v. ICBC, 1987 CanLII 2513 (BCCA) the claimant lived in a house with a women who had a driver’s certificate. The claimant paid room and board of $250 a month and was friends with the woman in the house (although they were not romantically involved). The claimant also provided extra money for groceries, helped with some household chores, and with her two children, and on occasion provided gas for her car. The majority of the British Columbia Court of Appeal held that the claimant was not a member of the household of the women and was therefore not entitled to Part 7 benefits:
I consider the use of the word “member” to be significant. The legislature could have used such words as “tenant”, “resident” or “occupant” but it chose the word “member”. To my mind, to be a “member” of a household implies a constituent, an integral part or a component of a whole, thus supporting the trial judge’s concept of a bond or affinity as an essential element of what constitutes a member of a household.
(Gray v. ICBC, 1987 CanLII 2513 at para. 9 (BCCA)).
In Wade v. Can. Nor. Shield Ins. Co. (1986), 5 B.C.L.R. (2d) 62 (S.C.) an adult son returning to house-sit his parents’ home during their absence was found not to be a member of that household
In Jacobs v. ICBC, 2000 BCSC 1267 the court found that a foster child was a member of the household of her foster mother even though it was no certain how long she would stay in that home:
By placing Corinna in the foster care of Ms. Schuman the Court in effect assigned Ms. Schuman to be her parent for an indefinite period of time. I agree with Ms. Hayman’s characterization of Ms. Schuman as a “surrogate mother” in place of her “biological mother”. Corinna could not be said to be a mere boarder with no affinity or bond to her foster mother… Corinna surely was not a member of her birth mother’s household. Her stay could easily have been for an indefinite period of time, for our experience tells us that there are many foster children who remain with their foster parents for years on end.
In the circumstances I find that she was “a member of the household of Ms. Schuman”.
(Jacobs v. ICBC, 2000 BCSC 1267 at para. 15 - 16).
The above cases indicate that whether a person is a member of a household will be a case specific analysis and will depend on the degree of connection between the claimant and the household.
Keep in mind that the “member of the household” requirement need only be considered if the claimant relies on a subsection of the definition of “insured” that contains that requirement; if one of the other subsections applies then then member of the household requirement need not be considered.
Need help with your claim? Click here for our recommended lawyer.