Citation and Court Information
CITATION: Charbonneau v. Intact Insurance Company, 2018 ONSC 5660
DIVISIONAL COURT FILE NO.: 674/17
DATE: 20180925
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
PERELL, CONWAY and SHEARD JJ.
BETWEEN:
IRIS CHARBONNEAU
Applicant (Respondent in Appeal)
– and –
INTACT INSURANCE COMPANY
Respondent (Appellant in Appeal)
COUNSEL:
Steven Sieger, for the Applicant (Respondent in Appeal)
Tracy L. Brooks and Joseph Evans, for the Respondent (Appellant in Appeal)
HEARD at Toronto: September 25, 2018
Oral Reasons for Judgment
PERELL J. (Orally)
[1] Intact Insurance Company appeals from the October 19, 2017 Order of Adjudicator Nicole Treksler of the Ontario Licence Appeal Tribunal. The Adjudicator held that Ms. Iris Charbonneau was involved in an accident under s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010.
[2] At the hearing before the Adjudicator, it was Intact’s position that the incident in which Ms. Charbonneau was seriously injured was not an “accident” and thus there is no accident benefits coverage under the Intact Insurance Policy issued to Ms. Charbonneau’s father.
[3] On July 14, 2014, Ms. Charbonneau stood on the rear bumper of a 2013 Nissan Quest which was in motion. She held onto the roof rack with one hand, and she held onto a friend’s shoulder. Her friend was also standing on the bumper of the moving vehicle. Another friend in the vehicle was video recording the event. The driver made a sharp turn. Ms. Charbonneau fell, and she hit her head on the concrete.
[4] During the hearing before the Ontario Licence Appeal Tribunal, the parties referred to this misadventure as involving “car surfing” where a person rides on the top or rear of a moving vehicle. While colloquially described as “car surfing,” this riding on a vehicle is a subset of activities that colloquially are known as “hitching a ride.” These activities would encompass such activities as riding on a bumper or side bar of a car or grabbing a moving vehicle while on in-line skates, a bicycle, a skateboard, a sled, or a toboggan.
[5] The Adjudicator articulated the test set out in the case law about what constitutes an accident for the purposes of Statutory Accident Benefits and she concluded that there was an accident.
[6] On this appeal, the parties agree that the standard of appellate review of the Adjudicator’s decision is the standard of reasonableness, and Intact argues that the Adjudicator’s decision was unreasonable.
[7] About the Adjudicator’s decision, we can immediately say that having reviewed the record, we find her decision to be correct and reasonable. Accordingly, the appeal should be dismissed.
[8] By way of observation, the Adjudicator was correct in applying a two-part test to determine whether a person is in an “accident” for the purpose of receiving statutory accident benefits. The test has two branches; namely: (1) a causation test, and (2) a purpose test.[^1]
[9] There was and is no dispute that the causation branch of the test was satisfied. The dispute between the parties involved the purpose branch of the test.
[10] By way of observation, the purpose test is designed to exclude a person from receiving accident benefits where a vehicle is being used for abnormal and aberrant purposes disassociated from the normal purposes of a vehicle, which are to transport people and things.
[11] The purpose test is designed to ensure that Statutory Accident Benefits are not provided for an accident in which a vehicle simply is involved but not involved for the normal purposes of a vehicle; for example, using a vehicle for a diving board or as a permanent prop to support a building does not entail statutory accident benefits should a misadventure occur.
[12] Justice Binnie provided these examples and others in the leading case of Citadel General Assurance Company v. Vytlingam,[^2] and he observed that the purpose test is to be applied narrowly and the test should not be stretched to exclude accidents that are connected to the normal uses made of a vehicle.
[13] Intact submitted that the purpose test is designed to ensure that no fault benefits are confined or restricted to accidents or to motorists and others who are making an ordinary and well-known use of the vehicles. In the immediate case, Intact’s submission is self-defeating because the Adjudicator had material before her to suggest that car surfing is a commonplace enough activity that the legislature has thought fit to criminalize it as an offence under s. 178 of the Highway Traffic Act,[^3] which prohibits “attaching oneself to a vehicle”. Car surfing or attaching oneself to a vehicle, while reckless and dangerous, is not a more abnormal use of a vehicle than the other reckless and dangerous uses of a vehicle such as texting while driving.
[14] In our opinion, while reckless and foolish, Ms. Charbonneau was using the vehicle for its normal purpose of transportation and there was an accident in which the Adjudicator correctly determined there was Statutory Accident Benefits.
[15] This decision was reasonable and within the consumer protection purposes of the Insurance Act,[^4] which provides benefits to insured persons like Ms. Charbonneau, who was an insured under her father’s insurance policy.[^5]
[16] Accordingly, the appeal is dismissed.
[17] I have endorsed the Appeal Book and Compendium as follows: “For oral reasons delivered in court today, the appeal is dismissed with costs payable by Intact to Ms. Charbonneau of $7,500.00 all inclusive.”
___________________________ PERELL J.
I agree
CONWAY J.
I agree
SHEARD J.
Date of Reasons for Judgment: September 25, 2018
Date of Release: September 26, 2018
CITATION: Charbonneau v. Intact Insurance Company, 2018 ONSC 5660
DIVISIONAL COURT FILE NO.: 674/17
DATE: 20180925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PERELL, CONWAY and SHEARD JJ.
BETWEEN:
IRIS CHARBONNEAU
Applicant (Respondent in Appeal)
– and –
INTACT INSURANCE COMPANY
Respondent (Appellant in Appeal)
ORAL REASONS FOR JUDGMENT
PERELL J.
Date of Reasons for Judgment: September 25, 2018
Date of Release: September 26, 2018
Footnotes
[^1]: See Amos v. Insurance Corporation of British Columbia (1995) 1995 66 (SCC), 3 S.C.R. 405. [^2]: 2007 SCC 46, [2007] 3 S.C.R. 373. [^3]: R.S.O. 1990, c. H.8. [^4]: R.S.O. 1990, c. I.8. [^5]: See Citadel General Assurance Company v. Vytlingam, 2007 SCC 46, [2007] 3 S.C.R. 373.