David Hay - Bike LawyerDavid Hay - Bike Lawyer
By David Hay
I recently appeared at a summary trial where the sole issue was whether or not our client, a cyclist injured at the hands of an unidentified driver, was, at the time of the accident, "ordinarily [a] resident" of British Columbia. The defense counsel suggested that she was not because of her ties to the United States, including Alaska and Pennsylvania, which they characterized as stronger than her ties to BC.
Clarifying the issue was critical to our client's ability to recover damages under the Insurance (Vehicle) Act. Claimants who ordinarily reside outside of BC are limited in their compensation. They can claim no more than a BC resident could for a hit and run in the claimant's home jurisdiction; and, limits on recovery are often less in other North American jurisdictions. Some, such as Alaska, offer no remedy at all. Therefore, it was critical that we establish that our client was ordinarily a resident of BC.
We put before the Supreme Court various indicia of ordinary residence, including the fact that our client was a student pursuing a master’s thesis here in BC, was a member of several clubs and organizations in BC, had a BC physician, had MSP coverage, had filed Canadian tax returns for income earned while here and was involved in the community in several other ways.
At the time of our request for a decision on the matter of her residency status, our client was working as a geologist on a one-year contract in Alaska.
After a full review of the law, including applying the "real home" test and the "settled purpose" test to our client’s living situation, the court accepted our submissions that our client was ordinarily a resident of BC and was entitled to recovery pursuant to BC law. The residing Judge emphasized the importance of not equating ordinary residence with a domicile of choice. Rather, the test looks at objective criteria, such as the settled routine of the individual's life.
The judge was careful to point out that the test of ordinary residence is different than citizenship, as residents are not necessarily also citizens. In our case, it was sufficient that the plaintiff maintained continuous residence in BC for a settled purpose, that is, to pursue her education. Based on the law, as it has stood for some time, the judge had no difficulty concluding that our client was ordinarily a resident at the time of the accident.
The judge accepted our submission that an award of costs ought to guide counsel in the strategic choices they make. The judge also ordered the defendant to pay for the cost of the summary trial, regardless of the ultimate outcome of the action.