Injured motorcyclist will test a BC law that says you can’t sue after a crash

A legal case put forward by a BC woman injured while driving her motorbike in a parking lot will test the province’s recent change in the law that prohibits people from suing if they’re involved in motor vehicle accidents.

BC Supreme Court Justice Andrea Ormiston didn’t make any decisions on whether the case will be successful, but did allow motorcyclist Donna Johnson’s case to continue through the court system after the defendants argued the case should be thrown out because the recent change in the law means she can’t sue.

However, the Justice wasn’t so sure.

“I cannot find that it is appropriate to strike the claim in this case,” Justice Ormiston said in a Nov. 28 decision. “(Johnson) has put forward an interpretation of the Insurance Vehicle Act that gives rise to a reasonable prospect of success at trial.”

The case involves motorcyclist Donna Johnson, who was injured while driving in the parking lot of a Mr. Mike’s restaurant. She was driving her three-wheeled motorbike in the parking lot when she hit a raised curb and sustained serious injuries, including a head injury with cognitive impairment.

Johnson began legal actions against Mr. Mike’s, and the company contracted to maintain the parking lot. She claimed that the parking lot wasn’t maintained properly and her injuries were caused by the companies’ negligence.

The companies argued they can’t be sued because the change to no-fault insurance means people can’t sue over car crashes. In 2021, the BC government changed the law barring people from suing for compensation if they’re injured in a crash. 

The crux of the case is the wording of the language in the law, “caused by a vehicle arising out of an accident.”

Johnson argued she can sue because her incident wasn’t “caused by” a vehicle, it was “caused by” the negligence of the property owner.

The defendant disagreed and argued that the accident easily fits within the definitions in the law.

However, the Justice wasn’t so sure.

“Not only has (Johnson’s) counsel set out a legal basis on which a court could find this case to be distinguishable from the authority marshalled by the applicants, but the parties are in agreement that… the Insurance Vehicle Act has not yet been judicially considered in B.C., let alone definitively by a higher court,” the Justice said.

“(Johnson) is not seeking to disturb an already settled legal landscape. Rather, her counsel has put forward reasonable arguments about new and consequential legislation in a case that should be determined on its merits.”

The judge’s ruling means the case will continue to move through the court system.