R. v. Schartner Date:, 2011 BCPC 287

Citation: R. v. Schartner Date: 20111024 2011 BCPC 0287 File No: AH51340843 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD WAYNE SCHARTNER REASONS FOR JUDGMENT OF JUDICIAL JUSTICE GORDON Appearing for the Crown: Cst. M. Cawsey Appearing on their own behalf: Richard W. Schartner Place of Hearing: Victoria , B.C.

Dates of Hearing: June 15 & 21, 2011 Date of Judgment: October 24, 2011 Overview [ 1 ] This disputed traffic violation ticket raises the issue of whether, on the tangled facts of the case, a garage policy of insurance applies to the vehicle at the time of the traffic stop. [ 2 ] On October 14, 2010 the Disputant, Richard Wayne Schartner, was a passenger in a vehicle driven by his father that was stopped by Cst Matt Cawsey of the Saanich Police Department.

The Disputant was ticketed, as owner, under section 24(3) of the Motor Vehicle Act , for driving or operating a vehicle without insurance. [ 3 ] I conclude that the vehicle was not insured at the time of the stop. The Facts [ 4 ] The facts that I draw from the evidence are these. On October 14, 2010 at 7:00 pm. at the intersection of Royal Oak Drive and Blenkinsop Road in Saanich, Cst Cawsey noted an older model Ford Mustang (later determined to be 1967), painted in primer grey, stopped at the traffic light and it was not displaying a front licence plate.

It also appeared at first sight to have several other defects. On stopping the vehicle, Cst Cawsey described it as being in a state of gross disrepair and it appeared to be in the process of modification. Some of the defects were no wiper blades, no mirrors, no side windows and an improper bumper. It displayed a “demonstration” “D” licence plate on the rear. [ 5 ] On further investigation from his in-car computer, Cst Cawsey determined the licence plate was registered to Frontline Motorsports Inc. in Surrey.

In the passenger seat of the Mustang was Richard Schartner and it was being driven by his father, Leslie Schartner. The roadside conversation that Cst Cawsey had with the two Schartners caused him to strongly suspect that the Mustang was

not insured under the policy associated with the D plate. [ 6 ] Cst Cawsey’s query of the two Schartners drew three differing stories from them. The first story was that the Mustang was being driven by a prospective buyer (Mr. Leslie Schartner). The second story was that it was being transported from one shop to another and the third story was that it was being test driven for its mechanical fitness.

In the third version, the Schartners told Cst Cawsey that the mechanical portion of the Mustang (engine, transmission, running gear) was all new and it was being tested out. [ 7 ] Cst Cawsey obtained the Vehicle Identification Number of the Mustang and queried it on his in-car computer. It showed the Mustang to be registered with the Insurance Corporation of British Columbia to Richard Schartner. Mr.

Shartner’s explanation to Cst Cawsey was that he had sold the Mustang to Frontline Motorsports Inc., had completed the ICBC transfer documents on October 8, 2010 but Frontline had not yet registered the transfer with ICBC. He also stated he was an employee of Frontline. Unfortunately for Mr. Schartner, he did not have with him any documents: completed transfer, registration for the D plate, documents of ownership, financial liability card or even a business card. [ 8 ] Cst Cawsey said he had some knowledge of the insurance requirements regarding the holding of a Demonstration Licence.

With the ICBC records of ownership showing Mr. Schartner as registered owner but that the Mustang was not insured under his name, and no other documents that would indicate otherwise, Cst Cawsey concluded the D plate was being improperly used and that the vehicle was uninsured. He therefore wrote Mr. Schartner a Violation Ticket as owner for driving without insurance and he also confiscated the D plate. Cst Cawsey advised Mr.

Schartner that if he provided him with documentation by 1:00 pm the next day, satisfying him that the vehicle was owned by and registered to Frontline and that he was an employee of Frontline, he would cancel the ticket and return the D plate. If not, he would forward the D plate to ICBC. [ 9 ] The next day, Mr. Schartner attended at the Saanich Police Department with a transfer form (APV9T) filed with ICBC earlier that day and a Financial Responsibility Card (APV4WL) naming Mr. Schartner as an operator under Frontline’s policy.

The APV9T that was filed with ICBC was not the same APV9T as was dated October 8, 2010. Mr. Schartner explained that in order to comply with the 1 pm deadline set by Cst Cawsey, he had Frontline, which was located in Surrey, complete another form and take it to its ICBC Autoplan agent and then get it to Mr. Schartner in Victoria. As this transfer was not effective until the day after the day of the alleged offence, Cst Cawsey did not cancel the ticket but he did return the D plate to Mr. Schartner. [ 10 ] In addition to the above, I find on the evidence that Mr.

Schartner was an employee of Frontline, that the transfer of ownership of the Mustang was not effective with ICBC until October 15, 2010 and that although registered in his name on October 14, 2010, Mr. Schartner did not have it licensed or insured in his name on that day. In evidence at trial were a Motor Vehicle Sale or Purchase Agreement (which appears to be a form used by vehicle dealers) and an APV9T (but not stamped with any ICBC stamp), both completed and dated October 8, 2010 in which Richard Schartner sells the Mustang to Frontline. I find them to be facts of what they purport to be.

Finally, I find that Mr. Schartner’s father was driving the Mustang for personal use at the time of the stop, and neither he nor Richard Schartner were road testing it for the business of Frontline. The only evidence I have of this last fact is from the explanation Mr. Schartner gave to Cst Cawsey, and the inference I draw from it in the revolving purpose they gave to Cst Cawsey of why they were on the road. The Issue [ 11 ] The issue is, on these facts, was the Mustang insured under Frontline’s Demonstration Licence (or Garage) policy of insurance. Analysis [ 12 ] Cst Cawsey referred me to

section 38 of the Motor Vehicle Act (and he made reference to sections 45 and 46 as well). But these sections do not assist me as they, in my view, relate to the use of the plate and not insurance coverage. He also provided a printout from the Internet, from what appears to be an ICBC website, under the heading “4.1 Demonstration Licence”. Mr. Schartner was only able to provide me with an ICBC booklet entitled “ICBC Garage Policy Booklet”. My own research points me to

Part 11 – Special Coverage Certificates of the Insurance (Vehicle) Regulation , BC Reg. 447/83. I also have the benefit of an ICBC booklet entitled “Autoplan Insurance Guide for Garage Operators” effective June 1, 2007. [ 13 ] What I do not have the benefit of, in addition to legally based argument, is Frontline’s Garage Policy to assist in informing me of the legal terms of coverage.

So I am left with the information from the booklets, information intended for the insured and not lawyers and judges and which is subject to the usual disclaimer printed at the front. [ 14 ] It appears that the ICBC Garage Policy Booklet likely contains the terms of the Garage Policy. My attention is drawn to Division 10, particularly

section 1(a). It provides: The Corporation agrees to indemnify in the same manner and to the same extent as if named herein as the named insured: (

a) Under sections 1 and 3 of the Garage Policy, in respect of a vehicle not owned by or leased to the named insured or such additional insured: i. every partner, officer or employee of the named insured engaged in the business described in the Garage Policy, while personally driving in such business and with the consent of the named insured, and ii. every partner or officer of the named insured while personally driving, provided that such use is occasional and the vehicle is in the care, custody or control of the named insured.

… [ 15 ] Mr. Schartner was an employee of Frontline, but he was not on the evidence a partner or officer. So only

section 1(a)(

i) would apply to him and only if he was personally driving and even then only if doing so in the business of Frontline. Decision [ 16 ] As Mr. Schartner was not personally driving the Mustang, I conclude that the Mustang was not covered under Frontline’s Garage Policy. And since it was not insured by Mr. Schartner himself, it was not insured at the time it was stopped by Cst Cawsey. [ 17 ] I therefore find Mr.

Schartner guilty, as owner of the Mustang under section 83(2) of the Motor Vehicle Act , of the offence of a vehicle being driven on a highway when it was not insured under a valid and subsisting motor vehicle liability policy evidenced by an owner’s certificate. [ 18 ] The prescribed fine for driving without insurance is $598, with a minimum fine of $300. In the circumstances of this case, I conclude that a fine of $300 is appropriate and so impose a fine of $300. __________________ H. W. Gordon Judicial Justice