The Devil Is In The Details When Considering Whether A Sandbar Is A “Highway”

Being the victim of a hit and run accident can have a devastating impact on you and your family. In addition to physical injuries, a hit and run accident can also have an emotional impact, with some people not knowing whether they are able to sue for damages. In Ontario, every insurance policy includes coverage for unidentified motorist claims. However, with every insurance policy, there is a great deal of importance in the details of the policy’s wording. This was evident in a recent decision from the Court of Appeal for British Columbia where a victim tried to pursue damages following a hit and run accident which occurred on a sand bar.

The accident

The accident occurred on August 2018, 2019 on what is known as the Peg Leg Sandbar on the eastern shore of British Columbia’s Fraser River. The sandbar is approximately one-kilometer wide and contains a mix of sand and gravel. At the time of the accident the sandbar was used as a public thoroughfare providing vehicles access to places to park, fish, and camp along the river. There were no gates, fences or signs indicating crossing the sandbar with a vehicle was not permitted, and it was regularly patrolled by the RCMP and the Department of Fisheries.

The plaintiff had been asleep in his camper when very early on the morning of the accident he saw a white jeep pull up next to the camper. The occupants of the jeep attempted to steal the plaintiff’s cooler from outside of his camper. The plaintiff exited his camper and noticed one of the occupants holding the cooler. He also noticed his generator had been tipped over and believed the occupants of the jeep were trying to steal it as well. The occupants of the jeep drove away after being confronted. The jeep struck the plaintiff while getting away, injuring his right knee, which required him to miss work and undergo surgery. The plaintiff was unable to identify drivers of the vehicle or record its license plate number.

The trial

In order for the plaintiff to collect damages, the accident would have had to have occurred on a “highway” as defined by the province’s Motor Vehicle Act and Transportation Act. The Motor Vehicle Act defines a highway as:

(a) every highway within the meaning of the Transportation Act,

(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and

(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,

but does not include an industrial road;

Meanwhile, the Transportation Act’s definition includes “a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way…”

The plaintiff argued the sandbar was either a “passwageway” as defined in the Motor Vehicle Act or a “public way” as defined in the Transportation Act.

The judge looked at the definition provided by the Motor Vehicle Act and applied a “broad purposive approach” to its interpretation after noting the definition is not exhaustive, as indicated by the use of the word “includes.” The trial judge accepted the plaintiff’s argument that the sandbar was a “public way.”

The appeal

The appellant’s position was that the trial judge erred in concluding the sandbar is a “highway.” After a lengthy analysis, the court concluded that the trial judge’s interpretation would have a variety of adverse consequences. The court said the trial judge’s interpretation could be “applied to essentially every location in British Columbia where people can drive motor vehicles (including Crown land), turning them into ‘highways’ in perpetuity by public use. This expansive interpretation would greatly increase the number of highways in British Columbia, affecting the potential liability of road authorities and creating uncertainty about the legal status of lands that may have been traversed by the public’s vehicles.”

The court found that since the ownership of the sandbar was not clear, that there were no clearly defined roads, and that it was only accessible at certain times (being covered with water at other times) meant it could not be considered a “highway.”

Contact the experienced and dedicated team at Derfel Injury Law if you have been injured in a hit and run accident. We will ensure you get the maximum compensation to which you are entitled. With over a decade of experience, we have the experience, expertise, compassion, and creativity needed to handle your claim. Please call us at 416.847.3580 or reach us online to discuss your situation today.