Neutral Citation: 1995 ONICDRG 73
File No. A-008945
ONTARIO INSURANCE COMMISSION
BETWEEN:
MARGARET CONWAY
Applicant
and
ROYAL INSURANCE COMPANY OF CANADA
Insurer
DECISION ON PRELIMINARY ISSUE
Issues:
The Applicant, Margaret Conway, was injured in a motor vehicle accident on August 23, 1993. The accident occurred while Mrs. Conway was parking her motor vehicle. She did not have a valid driver's licence at the time of the accident. Mrs. Conway applied for and received weekly benefits from the Insurer, Royal Insurance Company of Canada ("Royal"), payable under Ontario Regulation 6721. Weekly benefits were terminated on February 18, 1994.
Royal claims that Mrs. Conway is disqualified from receiving weekly benefits under section 17(1)(d) of the Schedule, because at the time of the accident, she was not authorized by law to drive the automobile. Further, Royal seeks repayment of all of the weekly benefits that it has paid.
The parties were unable to resolve their disputes through mediation and Mrs. Conway applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mrs. Conway disqualified from receiving weekly benefits under section 17(1)(d) of the Schedule, as an unauthorized driver at the time of the accident?
Is Royal entitled to repayment of weekly benefits paid to Mrs. Conway under section 27 of the Schedule?
Result:
Mrs. Conway is not disqualified from receiving weekly benefits.
Royal is not entitled to repayment of weekly benefits paid to Mrs. Conway, under section 27(2) of the Schedule.
Hearing:
The hearing in respect of this preliminary issue was conducted by way of an Agreed Statement of Facts and written submissions. I received written submissions from Ms. Takahashi, on behalf of Royal, on February 15, 1995 and March 15, 1995. I received written submissions from Mr. Michael S. Brown, on behalf of Mrs. Conway, on March 8, 1995. I received the Agreed Statement of Facts from Ms. Joan Takahashi, on behalf of both parties, on March 10, 1995.
Documents on the record are listed in Schedule A to this decision. The cases referred to by the parties are listed in Schedule B.
Reasons for Decision:
A. Facts and Issues:
The facts which have been agreed to by the parties are:
Mrs. Conway is a 57 year old unpaid homemaker who, on August 23, 1993, the date of the accident, resided with her husband, Glen B. Conway, in an apartment building at 10 Macey Avenue, Scarborough, Ontario.
On the date of the accident, Mrs. Conway was not licensed to drive a motor vehicle in the Province of Ontario.
On the date of the accident, Mrs. Conway did not have a valid driver's licence for any other jurisdiction and had never been licensed to drive.
Shortly before the accident, Mrs. Conway was in a 1983 Reliant Custom Station Wagon ("the vehicle") with two children, in a parking lot of her apartment building at 10 Macey Avenue. She was waiting for her husband who was upstairs attending to a washroom emergency. Mr. Conway had parked the vehicle in the driveway before going upstairs. No licensed driver was in the vehicle at the time of the accident.
Mrs. Conway was driving the vehicle to a parking spot in the parking lot in order to allow another vehicle out of the underground, when her vehicle collided with another vehicle. The other vehicle struck the passenger side of the Conway vehicle.
Mrs. Conway was injured in the accident. She sustained injuries to her neck and upper right shoulder.
On the date of the accident, the vehicle operated by Mrs. Conway was insured by Royal.
Royal initially raised the application of the exception in 2.40(d) of the policy (section 17(1)(d) of the Schedule), which provides that the insurer will not pay benefits in the event that "...the driver was not authorized by law to drive the automobile".
Royal advised Mrs. Conway that she might not be entitled to weekly benefits because she was not licensed to drive. The relevant provisions were explained.
Royal's claims adjuster received information from Police Constable Lacroix of the Metropolitan Toronto Police at the Collis Reporting Centre, that no driver's licence was required to drive in a parking lot.
The claims adjuster, in good faith and, in Royal's view, erroneously, accepted the information from the police officer and authorized payment of weekly benefits.
Mrs. Conway was paid weekly benefits, under section 13 of the Schedule, in the amount of $185.00 per week, from August 30, 1993 to February 18, 1994 (a total of 24.6 weeks).
Royal now claims that Mrs. Conway is disqualified from receiving weekly benefits under section 17(1)(d) of the Schedule because at the time of the accident, she did not hold a valid driver's licence. It seeks repayment of benefits already paid. Mrs. Conway claims that she is not disqualified from receiving weekly benefits under section 17(1)(d) of the Schedule because at the time of the accident, she was not driving in a place where a licence is required.
B. Analysis & Findings:
Section 17(1)(d) of the Schedule provides as follows:
EXCLUSIONS
17.-(1) The insurer is not required to pay benefits under subsection 12(1) or 13(1) in respect of a driver of an automobile at the time of the accident,
(d) if the driver was not authorized by law to drive the automobile;
In order to determine whether Mrs. Conway is disqualified from receiving weekly benefits under section 17(1)(d) of the Schedule, I must inquire into the nature and ambit of the legal requirements to drive an automobile in the Province of Ontario.
The only legal requirements that I was referred to by the parties are those contained in sections 32(1) and (5) of the Highway Traffic Act, R.S.O. 1990, Chap. H.8, as amended. These sections provide as follows:
32.-(1) No person shall drive a motor vehicle on a highway unless the motor vehicle is within a class of motor vehicles in respect of which the person holds a driver's licence issued to him or her under this Act.
(5) The Minister may issue a driver's licence to any person who meets the requirements of this Act and the regulations authorizing the person to drive on a highway,
(a) any motor vehicle within a class or classes of motor vehicles;
(b) subject to any conditions or endorsements; and
(c) for the period of time,
prescribed by the regulations and set out or referred to in the licence. [emphasis added]
Under sections 32(1) and (5) of the Highway Traffic Act, a licence is required only where a person is driving a motor vehicle on a "highway". The licence authorizes the driver to drive the motor vehicle on a "highway". "Highway" is defined in the Highway Traffic Act as follows:
1.-(1) In this Act,
"highway", includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;
In this case, Mrs. Conway would have been required to hold a licence, issued under the Highway Traffic Act, if the parking lot in which she was driving the motor vehicle at the time of the accident fell within the definition of "highway".
Royal submitted that the parking lot was a "highway". It relied on Jassal v. Hera (1991), 1991 CanLII 1276 (BC SC), 5 C.C.L.I. (2d) 251, a decision of the British Columbia Supreme Court, in support of this proposition.
In Jassal v. Hera, Mr. Hera held a learner's driver's licence. At the time of the accident, his pick-up truck had been parked on his employer's parking lot. He was in the process of moving the truck when it struck Mr. Jassal. Mr. Hera was not accompanied by a licensed driver at the time of the accident, in contravention of the condition stated on his learner's driver's licence. He sought indemnification from the Insurance Corporation of British Columbia ("ICBC") in respect of the claim of injury which arose as a result of the accident. The ICBC refused to indemnify Mr. Hera because he drove his vehicle in contravention of the condition of the licence. One of the issues which the British Columbia Supreme Court considered was whether or not the employer's parking lot was a highway as defined in section 1 of the British Columbia Motor Vehicle Act, R.S.B.C. 1979, c. 288. The Court concluded that the parking lot was a highway.
I did not find this decision particularly helpful. The definition of "highway" in the British Columbia Motor Vehicle Act is much broader than the definition of "highway" in the Ontario Highway Traffic Act. "Highway" is defined in the British Columbia Act as follows:
includes every highway within the meaning of the Highway Act, and every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited. [emphasis added]
Further, the British Columbia Supreme Court had evidence on which to make its finding. The Agreed Statement of Facts given to the Court indicated that Mr. Hera's employer's parking lot was open to employees, contract workers and customers of the employer.
In this case, Royal argues that a parking lot for a high-rise apartment building must be and is necessarily accessible to the public, and travelled upon by the public, maintenance staff, property management personnel, supply staff and personnel. Accordingly, it can be considered a highway within the meaning of the Ontario Highway Traffic Act. However, the Agreed Statement of Facts in this case does not give much of a description of the parking lot. It indicates merely that it was for and adjacent to the apartment building in which Mrs. Conway resided.
Thus, I have no evidence on which to base a finding that at least part of the parking lot was used by the general public for the passage of vehicles. Even if I were to assume that the public had access to the parking lot, however, Royal has not convinced me that this particular parking lot is a highway within the meaning of the Ontario Highway Traffic Act. The parking lot in this case appears to be similar to the private parking lot considered by the Supreme Court of Canada in R. v. Mansour (1979), 49 D.L.R. (3d) 545.
In R. v. Mansour, the accused was convicted under the Criminal Code of Canada of driving an automobile on a parking lot in Ontario while his driver's licence was suspended by the Province. The Ontario Court of Appeal reversed the Courts below and quashed the conviction. The Supreme Court of Canada upheld the decision of the Court of Appeal and dismissed the appeal on the basis that the accused who was driving on a parking lot adjacent to an apartment building to which the public had access, was not driving in a place where a licence is required. Accordingly he was acquitted of the offence of driving while disqualified contrary to the Criminal Code. The Court stated that under the Highway Traffic Act (R.S.O. 1970, c. 202, as amended) a licence is required only where the accused is driving on a "highway" as defined in section 1(1), paragraph 11, of the Highway Traffic Act. The Court stated that the term "highway" in section 1 (1), paragraph 11:
...in its ordinary and popular sense ...does not embrace the concept of a parking-lot and, particularly, a parking-lot adjacent to an apartment building, and presumably one which was established primarily for the provision of parking to its inhabitants.
It seems clear therefore that the term highway in respect of which a licence to drive is, in Ontario, required, does not include a parking-lot "adjacent to an apartment building and to which the public had access". [emphasis added] (page 548)
I note that the definition of "highway" in section 1(1), paragraph 11, was amended in 19832. The words "any part of which" were added to expand the definition to include places which are only partly used by the general public. However, I do not believe that this change in wording renders the decision of the Supreme Court of Canada in R. v. Mansour any less applicable. The Court approached the question of licence requirement by giving the words "a parking lot adjacent to an apartment building and to which the public had access" the broadest possible interpretation, i.e., as being a parking lot to which the public, including the dwellers of the apartment building and their guests, had access.
In conclusion, I am satisfied that the parking lot in which Mrs. Conway was driving at the time of the accident does not fall within the definition of "highway" in the Ontario Highway Traffic Act.
Royal submitted that the phrase "not authorized by law to drive" in section 17(1)(d) of the Schedule means driving without a driver's licence whether or not a parking lot is considered to be a "highway". Royal submitted that section 17(1)(d) does not state that the requirement to be "authorized by law to drive" applies only where the driver is driving at certain locations. Royal submitted that section 17(2) of the Schedule is the only exception to the exclusion in section 17(1)(d). Section 17(2) states as follows:
17.-(2) Clause (1)(d) does not apply to a driver who is not authorized by law to drive an automobile only by reason of a suspension of a licence for failure to pay a fine.
Royal submitted that where a person does not hold a driver's licence, he or she lacks the "authorization of the law". The requirement to be authorized by law is a positive obligation which Mrs. Conway has to meet in order to qualify for weekly benefits. She has not met this obligation.
In support of these propositions, Royal relied on a number of cases listed in Schedule B.
I have reviewed these cases. Some of the decisions are not particularly helpful because they deal with situations where the automobile was being driven on a highway at the time of the accident. In Jassal v. Hera (supra), the British Columbia Supreme Court held that even if the employer's parking lot was not a highway, insurance coverage was not available to Mr. Hera because he was not authorized to operate his motor vehicle. The Court stated:
Certainly as far as the operation of a motor vehicle is concerned, off of a highway, there is no prohibition against that operation by a person if it is operated by a person who is not licensed.
But if a person wants to have insurance coverage, then they must comply with the legislation and the procedure which is followed in that legislation here. [emphasis added] (page 257)
A similar decision was reached by the British Columbia Supreme Court in an earlier case. In Platts v. Insurance Corporation of British Columbia (1986), 1986 CanLII 7781 (BC SC), 17 C.C.L.I. 153, the Court denied benefits to someone (Mr. Platts) operating a motorcycle on lands off a highway without the required licence, pursuant to a regulation made under the British Columbia Insurance (Motor Vehicle) Act. The regulation contained a statutory exclusion which disqualified an insured person from receiving benefits if the insured person "...is not authorized and qualified by law to operate the vehicle". The Court held that the term "authorized to operate" requires a positive act. Mr. Platts was not authorized to operate a motorcycle anywhere - on or off the highway. Accordingly, the exclusion applied.
I do not find these decisions of the British Columbia Supreme Court to be persuasive, for three reasons.
First, they are not well reasoned. I find the Court's reasoning to be circular. Second, the consequence of adopting the Court's interpretation would be impractical. The law only requires and hence grants a person the authority (a licence) to drive a motor vehicle on a highway, within the meaning of the Ontario Highway Traffic Act. Technically, no one has been "authorized by law" to drive a motor vehicle off a highway as no grant of authority is available. I find it difficult to adopt an interpretation that would require a person to obtain authorization to drive a motor vehicle off a highway, when the law makes no provision for such authorization.
Third, the Schedule is remedial in nature. Its purpose is to provide an assured level of benefits or compensation to all persons injured in motor vehicle accidents, regardless of fault or policy limits. It should be interpreted in a fashion which favours and facilitates its application to further this goal. Section 17(1)(d) of the Schedule constitutes one of the exceptions to the no-fault scheme. It should, therefore, be interpreted narrowly. Any ambiguity in this provision should be resolved in favour of the person seeking the benefit of the legislation, in this case, Mrs. Conway.
C. Summary:
A driver of an automobile is excluded from qualifying for weekly benefits where he or she, at the time of the accident, was not authorized by law to drive the automobile. The words "...not authorized by law to drive the automobile" compel one to inquire into the nature and ambit of the legal requirements to drive an automobile in the Province of Ontario. It appears that the law only requires and hence grants a person the authority (a licence) to drive an automobile on a highway. In my view, if a person is driving an automobile without a licence in a place where no licence is required, i.e., off a highway, it cannot be said that he or she was not authorized by law to drive the automobile.
Accordingly, I conclude that Mrs. Conway is not disqualified from receiving weekly benefits under section 13 of the Schedule by operation of the exclusion in section 17(1)(d) of the Schedule.
Order:
Mrs. Conway is not disqualified from receiving weekly benefits.
Royal is not entitled to repayment of weekly benefits paid to Mrs. Conway, under section 27(2) of the Schedule.
June 16, 1995
Shemin Manji
Arbitrator
Date
SCHEDULE A
Documents on the record were:
Report of Mediator, dated April 11, 1994
Application for Appointment of an Arbitrator, dated August 19, 1994
Response by Insurer, dated September 28, 1994
Letter confirming pre-hearing discussions, dated January 24, 1995
Agreed Statement of Facts received on March 10, 1995
SCHEDULE B
Insurer's Authorities:
Hossein Bagheri and Allstate Insurance Company of Canada, March 10, 1994, OIC File No. A-002514 (under appeal)
Blatter v. Insurance Corporation of British Columbia (1984), 1984 CanLII 560 (BC SC), 7 C.C.L.I. 61 (B.C.S.C.)
The Citadel General Assurance Co. v. Gogna, [1992] I.L.R. 2077 (Ont. Ct. Gen. Div.)
Jassal v. Hera (1991), 1991 CanLII 1276 (BC SC), 5 C.C.L.I.(2d) 251 (B.C.S.C.)
Sukhwant Singh Kahlon and Royal Insurance Company of Canada June 23, 1993, OIC File No. A-001687
Moore v. Co-operative Fire Casualty Company, [1979] I.L.R. 467 (Nfld. C.A.)
Manitoba Public Insurance Corp. v. Brandt (1991), 1991 CanLII 11856 (MB QB), 48 C.C.L.I. 187 (Man. Q.B.)
Dalvir S. Nijjar and Co-operators General Insurance Company April 14, 1994, OIC File No. A-004436
Platts v. Insurance Corporation of British Columbia (1986), 1986 CanLII 7781 (BC SC), 17 C.C.L.I. 153 (B.C.S.C.)
Solvason v. Manitoba Public Insurance Corp. (1976), 1976 CanLII 1248 (MB QB), 71 D.L.R.(3d) 277 (Man. Q.B.)
James Traganis and Security National Insurance Company July 30, 1993, OIC File No. A-001198
Vanderwal v. State Farm Mutual Automobile Insurance Company (1994), 1994 CanLII 10575 (ON CA), 20 O.R.(3d) 401 (Ont. Gen. Div.)
Applicant's Authorities:
Gill v. Elwood (1969), 1969 CanLII 215 (ON CA), 9 D.L.R.(3d) 681 (Ont. C.A.)
Regna v. Mansour (1979), 49 D.L.R. (3d) 545 (S.C.C.)