15 Jan BC Court of Appeal Holds That ICBC Income Loss Benefits Can Be Revived Beyond 104-Week Mark
The case of Symons v. Insurance Corporation of British Columbia, 2016 BCCA 207, involves a Plaintiff who was seriously injured in an April 20, 2008 rear end collision. She was off work for two weeks and received short-term disability benefits from ICBC under s. 80 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83. Well over 104 weeks from the date of the collision, injuries resurfaced leaving the Plaintiff totally disabled and unable to work. ICBC refused to reinstate the disability benefits. At trial, Mr. Justice Baird ordered ICBC to reinstate the disability benefits. ICBC appealed the decision but the Court of Appeal upheld the trial judgement. The Court of Appeal provided the following reasons:
 It is common ground that Part 7 of the Regulation provides no-fault accident benefits to insured individuals as defined in s. 78. Ms. Symons is an insured for the purpose of Part 7. Section 80 provides for disability payments for 104 weeks’ post-accident and s. 86 provides for benefits beyond 104 weeks. The provisions are set out below:
Disability benefits for employed persons
80 (1) Where, within 20 days after an accident for which benefits are provided under this Part, an injury sustained in the accident totally disables an insured who is an employed person from engaging in employment or an occupation for which the insured is reasonably suited by education, training or experience, the corporation shall, subject to section 85, pay to the insured for the duration of the total disability or 104 weeks, whichever is shorter, the lesser of the amounts determined under paragraphs (a) and (b): …
Disability beyond 104 weeks
86 (1) Where an injury for which disability benefits are being paid to an insured under section 80 or 84 continues, at the end of the 104 week period, to disable the insured as described in the applicable section, the corporation shall, subject to subsections (1.1) and (2) and sections 87 to 90, continue to pay the applicable amount of disability benefits to an insured described in section 80 or 84 …
 ICBC submits that the meaning of s. 86 clearly states that at the end of the 104 week period, in order to receive benefits under s. 86, an insured must be disabled and receiving benefits. There must be an ongoing disability for which benefits are being paid, and Ms. Symons was not receiving benefits at the end of the 104 week period. Her disability did not flare up until after that period passed. ICBC says that the Regulation does not permit for the reinstatement of s. 86 benefits.
 It is ICBC’s position that the provisions are unambiguous that a person may receive s. 86 benefits only if he or she was already receiving s. 80 benefits, which Ms. Symons was not. The 104-week period for payment to Ms. Symons under s. 80 ended on April 27, 2010. At that time, she last received a disability benefit dated May 2, 2008. Her total disability occurred later. Section 86 says “where an injury for which disability payments are being paid to an insured under s. 80 … continues, at the end of the 104 week period, to disable … the corporation shall … continue to pay” (emphasis added.). The section, ICBC says, is clear and unambiguous, and therefore, that is the end of the analysis.
 Ms. Symons says that ICBC’s argument ignores the contextual and purposive approach to statutory interpretation found in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 and Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C.R. 27. She says that the interpretation advocated by ICBC would result in unfair and absurd results. For example, if a person received s. 80 benefits for 104 weeks less the final day, that person would be ineligible for s. 86 benefits. ICBC acknowledges this outcome, but says this is a practical limitation imposed by the legislature.
The Court of Appeal emphasized the need for the regulations to be considered in the context of the legislative scheme to provide a universal, compulsory insurance program and went on to provide:
 ICBC argues that that was a case where the plaintiff was already entitled to s. 86 benefits when they were stopped, and then reinstated. I think this cuts too fine a line. Brewer says a person receiving s. 80 benefits can be reinstated if he later becomes disabled from the original injury and Halbauer says a person receiving s. 86 benefits is entitled to have them reinstated if he or she is subsequently disabled because of the original injury. In my view, if the sections are read, as ICBC suggests, to mean that only a person who is disabled “at” the 104-week mark can obtain benefits after that period, that interpretation does not accord with the context and object of the legislation, nor within the reasoning of Halbauer.
 Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act—to provide no-fault benefits for persons injured in motor vehicle accidents.
 In my opinion, the decisions in Rashella and Andrews have been overtaken by Halbauer and Charlton.
 Thus, the trial judge did not err in his conclusion that Ms. Symons was entitled to be reinstated for disability benefits under s. 86.
 I would dismiss the appeal.
If you or someone you know has been injured in a motor vehicle accident, please feel free to contact Sitka Law Group for a consultation. We are conveniently located on Shelbourne Street near the intersection of the borders of Victoria, Oak Bay and Saanich.