Middleton v. Heerlein

2016 BCCA 369 Middleton v. Heerlein COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Middleton v. Heerlein, 2016 BCCA 369 Date: 20160909 Docket: CA43007; CA43008 Between: Cinda Joyce Middleton Appellant (Plaintiff) And Siegfried Heerlein and Enterprise Rent-A-Car Canada Limited/ Enterprise Location D'Autos Canada Limitee Respondents (Defendants) - and - Docket: CA43008 Between: William Leroy Middleton Appellant (Plaintiff) And Siegfried Heerlein and Enterprise Rent-A-Car Canada Limited/ Enterprise Location D'Autos Canada Limitee Respondents (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Savage The Honourable Madam Justice Fenlon On appeal from: an order of the Supreme Court of British Columbia, dated July 17, 2015, (Middleton v. Heerlein, 2015 BCSC 1236, Vancouver Registry No. L150153) Oral Reasons for Judgment Counsel for the Appellant: L. Giustra Counsel for the Respondent: T.R. Davies and A. Atwal Place and Date of Hearing: Vancouver, British Columbia September 9, 2016 Place and Date of Judgment: Vancouver, British Columbia September 9, 2016 Summary: The chambers judge dismissed Progressive's applications for summary judgment for benefits paid to C.J. Middleton and W.L. Middleton. Progressive seeks to have the orders set aside. It says the judge erred in concluding that s. 83 of the Insurance (Vehicle) Act prevents it from enforcing a right of subrogation against Heerlein and Enterprise. Progressive says that s.84 provides a broader right of subrogation than the previous version of the Act and that s. 83 must be re-interpreted as a result. Held: The appeal is dismissed. The judge was correct to conclude that s. 84 does not affect the existing interpretation of s. 83. [1] FENLON J.A.: This appeal concerns the interpretation of ss. 83 and 84 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. [2] The appellant accepts that s. 83 is effectively the same as s. 25 of the former Act. The appellant also accepts that s. 84 is effectively the same as s. 26 of the former Act except that the word "corporation", which referred to ICBC, has been replaced by the words "an insurer". "An insurer" is a defined term which includes all insurers that write policies within British Columbia. [3] The appellant accepts that Progressive Max Insurance Company ("Progressive") is not included in that definition. [4] The former ss. 25 and 26 were considered by this Court in Matilda v. MacLeod, 2000 BCCA 1. Progressive says Matilda no longer governs the interpretation of s. 83(2) given the change in the wording of s. 84. [5] Mr. Justice Johnson considered all of these submissions in the hearing before him in the Supreme Court of British Columbia and concluded that Matilda continues to govern the interpretation of s. 83. [6] Despite the thorough submissions of Ms. Giustra, I am of the view that Mr. Justice Johnson's is correct. It is not open to a Supreme Court judge or a three judge division of this Court to decline to follow a considered opinion of this Court. [7] I would therefore dismiss the appeal. [8] SAUNDERS J.A.: I agree. [9] SAVAGE J.A.: I agree. [10] SAUNDERS J.A.: The appeal is dismissed. "The Honourable Madam Justice Fenlon"