Ontario Insurance Commission

Commission des assurances de l’Ontario

Neutral Citation: 1996 ONICDRG 174

Appeal P96-000034

OFFICE OF THE DIRECTOR OF ARBITRATIONS

FEDERATION INSURANCE COMPANY OF CANADA

Appellant

and

JONATHAN R. VINESKI

Respondent

Before:

Susan Naylor, Director’s Delegate

Counsel:

Douglas Bryce (for Jonathan Vineski)

David Zuber (for Federation Insurance)

Lee Samis (for the intervenor, Insurance Bureau of Canada)

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal is dismissed and the arbitration order dated September 8, 1995 is confirmed.

2. Jonathan Vineski is entitled to his appeal expenses, to be paid by Federation Insurance Company of Canada.

October 18, 1996

Susan Naylor

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Jonathan Vineski was injured in a bicycle accident on June 5, 1993. According to the parties’ agreed statement of facts, he was cycling on a municipal roadway when he heard an unseen vehicle starting and looked to see where it was. While looking away, he rode into a pothole, his bicycle wheel broke off, and he fell, landing on his face and head.

Jonathan is a dependant of Michael Turner, and is therefore covered by Mr. Turner’s standard owner’s automobile policy with Federation Insurance Company of Canada (Federation). Jonathan claimed various accident benefits under the policy. The issue is whether his injuries are compensable under the automobile insurance statutory accident benefits scheme. Since his bicycle is not an automobile, coverage depends on whether a sufficient causal connection exists between the accident and the automobile he heard starting.

The Insurance Act, R.S.O. 1990, c. I.8, provides that every automobile policy must contain the accident benefits set out in the regulations. In this case, the applicable regulation is the Statutory Accident Benefits Schedule - Accidents before January 1, 1994, R.R.O. 1990, Reg. 672, (the Schedule).¹

Statutory accident benefits are payable with respect to an insured person who dies or sustains injury as a result of an “accident” as defined in the Schedule. The definition of accident fixes the parameters of coverage under the scheme. No benefits are payable unless there is an “accident” within the meaning of the Schedule.

“Accident” is defined in section 2 of the Schedule, as follows:

In this Schedule,

“accident” means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device.

That there was an incident is common ground. The parties disagreed on whether Jonathan’s injuries involved “the use or operation of an automobile”, and whether such use or operation “directly or indirectly” caused his injuries.

The arbitrator conducted a hearing on these preliminary issues, based on the agreed statement of facts submitted by the parties. On those facts and the inferences she drew from them, the arbitrator held that Jonathan was injured in an “accident” within the meaning of section 2 of the Schedule. Federation appeals this order. The Insurance Bureau of Canada (IBC) sought, and was granted, intervenor status on the issue of law raised. The appeal proceeded on the basis of the parties’ written and oral submissions and the agreed statement of facts, including various photographs and a sketch of the accident site.

II. THE FACTS

It is not necessary to reproduce the agreed statement of facts as it is set out in full in the arbitrator’s decision. The key aspects are summarised, as follows:

Jonathan was staying with a friend for the week-end. He borrowed a bicycle from his friend and they went cycling together in the village of Embro. The bicycle was in good working condition and had been tested and ridden previously.

Jonathan was riding westward on a municipal roadway, when the events in issue occurred. On the north side of the street where he was cycling, there is a bank and small apartment building, with a laneway between the buildings and a sidewalk running in front of the buildings. Adjacent to the sidewalk, on the roadway, there is an unmarked parking area, to which cars pull in perpendicular to the sidewalk or park at an angle.

Jonathan was riding at a sufficient distance from the sidewalk to avoid colliding with any of the parked cars. As he rode his bicycle in front of the apartment building approaching the laneway and bank, he heard the sound of a vehicle being started. He looked to his right to see where the car was and to determine whether he was in any danger. He never saw the car, did not know if it moved and did not know where it was, although he thought it might have been down the alley. His friend did not hear a car start or see a car move. Before Jonathan was able to look back to where he was going, he rode into a pothole in the road. The photographs of the site indicate that the pothole was not deep, between one inch at its deepest point to half an inch, at its shallowest point. According to Jonathan’s description, the pothole “somehow grabbed the wheel” and twisted it, snapping the bolts. Jonathan stated that the wheel “twisted and broke off and that is what caused me to fall down”.

III. THE ARBITRATOR’S DECISION AND THE PARTIES’ POSITIONS

The arbitrator concluded that the starting of a car engine constituted the “use or operation” of an automobile. In her view, the fact that it was agreed that Jonathan had heard the sound of a vehicle being started, looked to his right to see where the car was, and rode into the pothole while distracted, was determinative. She concluded that the starting of the car engine was “the precipitating cause of the injury”, which set in motion the chain of events that led to Jonathan’s injuries. It was “at least an indirect cause if not a direct cause of the incident”. She stated:

...while several acts took place between the time the Applicant heard the car start and when he fell, each act precipitated the next, thus creating a line of causation. Moreover, none of the so called “intervening factors” would have come into play had the Applicant not been initially distracted by the car engine; it was his attempt to determine the location of the car and ensure that he was out of danger that caused him to ride into the pot hole.

(Decision, page 15)

In interpreting the language of the Schedule, the arbitrator stated:

In my view, cases which have interpreted similar phrases in the context of insurance policies are of limited assistance in interpreting the Schedule. The phrase under consideration is a legislative provision and as such should be given its plain and ordinary meaning.

I find it significant that the legislation contains the words “causes directly or indirectly”; this wording is considerably broader than the typical wording found in insurance policies, i.e. “arising from” or “arising out of”. I agree with the following comments of Arbitrator Palmer in ...Mander v. Wellington Insurance Co., September 24, 1995, OIC File No. A-002057:

In my view, the traditional “chain of causation” may be broken by the words “..or indirectly”, which appear in the regulation. Although a causal relationship between the use of the automobile and the injuries is required, the present wording does not require the injuries to be the result of the direct or proximate use of the vehicle”.

(Decision, page 10)

Federation and the IBC take issue with the arbitrator’s legal interpretation. Federation also disputes the inferences the arbitrator drew from the agreed facts. Federation’s basic position is that the connection between the vehicle starting and the ultimate injuries suffered is too tenuous and remote, and that other factors played a much more important and direct role. It argues that the direct or proximate cause of Jonathan’s injuries was the breaking bicycle wheel; the poor state of the road and Jonathan’s inattentiveness were also intervening factors, which broke any link that might have existed between the vehicle starting and the injuries.

Federation argues that Jonathan’s recourse is to sue the municipality which has responsibility for maintaining the road properly.

Although Federation agreed to the facts put before the arbitrator, it did not agree that Jonathan’s distraction by the sound of a car was decisive. It submitted that the size of the pothole was relatively insignificant and there was no evidence Jonathan would have tried to avoid it in any event. Had the sprocket and spoke on the bicycle wheel not broken, he would not have fallen off and would probably have ridden over the pothole uneventfully. Federation noted that while the sound of an unseen vehicle prompted Jonathan to look to his right, there was no sense of alarm, urgency or panic in his reaction.

The IBC, as intervenor, confined its submissions to the legal issue. It argued the addition of the phrase “directly or indirectly” did not eliminate the need for a sufficient causal connection or the requirement that injuries suffered be proximately caused by the use or operation of a vehicle. I am indebted to all counsel for their helpful submissions.

IV. ANALYSIS AND CONCLUSION

Any analysis must start from the prescribed words of the policy. Jonathan’s claim is not covered under the automobile insurance accident benefits scheme unless the use or operation of an automobile caused his injuries either directly or indirectly.

Many of the cases cited to me consider the issue of causation in the context of determining whether an insurance policy covers liability resulting from a policy holder’s negligence. While caution must be exercised in applying principles developed in a different context, in Amos v. Insurance Corp. of British Columbia (1995) 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618, (Amos), the Supreme Court of Canada held that the approach taken in previous cases was useful, even though the benefits in issue were no-fault benefits prescribed by statute. The court reaffirmed the principle that while statutory provisions dealing with coverage should not be stretched beyond their plain and ordinary meaning, they

ought not to be given a technical construction that defeats the object and insuring intention of the legislation providing coverage.

Virtually all the case-law cited, including Amos, deals with the more common policy words, “arising from” or “arising out of “. Similar language is still used in the Insurance Act, although the words “directly or indirectly” have been added. Section 239 of the Act extends coverage against liability for loss or damage arising from the ownership or directly or indirectly from the use or operation of the automobile. Section 266, which restricts the right to recover damages in respect of automobile accident injuries - the trade-off for the accident benefits in the Schedule - applies in respect of loss or damage arising directly or indirectly from the use or operation of an automobile.

Under Schedule – to the Insurance Act, R.S.O. 1980, c. 218, the predecessor to the Schedule, no-fault benefits are payable with respect to an insured person who sustained bodily injury or death by “an accident arising out of the use or operation of an automobile”. There is no definition of “accident”, except in relation to accidents in Quebec.²

The Schedule does not use the phrase “arising out of” or “arising from”. It uses the term “causes”, but modifies the verb by the adverbs “directly or indirectly”. The question is the effect of the phrase in its entirety, particularly the words “causes...indirectly”. In Amos, Canada’s Part III, s. A(a). highest court confirmed that the phrase “arising out of “ is broader than the term “caused by”, and should be interpreted in a more liberal manner.³ Therefore, care must be exercised in applying case-law interpreting "arising out of” or “arising from”, when dealing with the different language of the Schedule. The Amos decision had not been released at the time the arbitrator issued her decision.

A two-fold test evolved in Canadian case law in determining whether injuries “arise out of” or “arise from” the use or operation of an automobile. The tests were the result of two earlier Supreme Court of Canada decisions:

1. The purpose test set out in Stevenson v. Reliance Petroleum Ltd. 1956 CanLII 27 (SCC), [1956] S.C.R. 936: whether the accident results from the ordinary and well-known activities to which automobiles are put.

2. The chain of causation test established in Law, Union & Rock Insurance Company Limited v. Moore’s Taxi Limited 1959 CanLII 81 (SCC), [1960] S.C.R. 80: whether there is a continuous chain of causation.

In Law, Union, Mr. Justice Ritchie, speaking for the court, discussed the relationship between the words “arising out of” and the doctrine of proximate cause. He stated:

The meaning to be attached to the words “arising out of” as they occur in the exclusion here has, of course, been the subject of much discussion in this case. Adamson C.J.M. has said that “The words are clear and must bear their own meaning. They refer to immediate or proximate cause.” On the other hand, the appellant contends that the words have a wider connotation and should be construed as meaning “originating from, incident to or having connection with the use of the vehicle”...It is sufficient to say that the words “claims arising out of ...the ownership, use or operation...of any motor vehicle” as used in this exclusion can only be construed as referring to claims based upon circumstances in which it is possible to trace a continuous chain of causation unbroken by the interposition of a new act of negligence and stretching between the negligent use and operation of a motor vehicle on the one hand and the injuries sustained by the claimant on the other.

(Page 84-5)

Under this test, if the chain is broken by an intervening act which is the factor giving rise to liability, the injury is not one which arises from the use or operation of the motor vehicle.⁴

In cases involving liability in tort, courts have looked for the negligence that gave rise to the liability. In no-fault cases, negligence is not a key factor. In Tippet v. Doe et al., (1987), 27 C.C.L.I. (B.C.S.C.) Murphy L.J.S.C. modified the test accordingly:

The “chain of causation” test can be used without reference to liability. In other words, to paraphrase Ruttan J., A..if that chain is broken by an intervening act which is a factor giving rise to the injury, the injury is not one which arises from the use or operation of a motor vehicle.

(Decision, page 8761)

The chain of causation test has been met, for example, when a child ran across the road and was hit by a car after the vehicle she was in was parked improperly (Wu v. Malamas et al., (1985) 1985 CanLII 235 (BC CA), 67 B.C.L.R. 105); but not when the child ran out on the road and was hit, after the taxi driver breached an independent duty to help the child across the road (Law, Union, & Rock Insurance Company Limited); and when a dog left in a car escaped into the path of a cyclist, (Boell v. Schinkel (1991) 1991 CanLII 7210 (ON CTGD), 5 C.C.L.I. (2d) 189 (Gen. Div.) but not when a cyclist lost control and struck a parked car (Tippet v. Doe et al.).

In Amos, the court restated the two-fold test in a new formulation:

1. Did the accident result from the ordinary and well-known activities to which automobiles are put?

2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant’s injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

(Amos, page 624)

In Amos, the driver was shot and very seriously injured when his van was surrounded by six assailants. The court held that the driver’s injuries, in the words of the statutory language under consideration, were “caused by an accident that arises out of the ownership, use or operation of a vehicle”. It held that there had to be some causal connection between the injuries and the use or operation of the vehicle. However, there did not need to be a direct or proximate relationship.

The IBC cited several authorities to me to show that “cause” in insurance law, generally, means proximate cause. The concept of proximate cause is used in all branches of insurance law in determining whether an insured peril caused a loss, where there are multiple causal factors. It is not necessarily the nearest-in-time event but the “effective” or “dominant” cause of a loss, discernible by common sense.⁵ Case law distinguishes between proximate cause, or causa causans, and remote cause, or causa sine qua non. The latter is:

...only an indirect cause of loss, in that the direct cause of the loss would not have been brought into operation if the indirect cause had not been brought into being. Generally in the law of insurance it is the rule that in considering whether a loss has been caused by the peril insured against, the proximate cause is to be regarded rather than the remote cause.⁶

Many factors may contribute to a given injury, but not all of them can be treated as “causes”. In Voison v. Royal Insurance Co. of Canada, (1988) 1988 CanLII 4736 (ON CA), 66 O.R. (2d) 45, (C.A.), the court considered whether a pre-existing condition operated to defeat coverage against “loss resulting directly and independently of all other causes from accidental bodily injuries.” The court held that while the pre-existing condition may have been a factor contributing to the injury that occurred, the role played by it in the entire scenario had to be considered. To do this, a determination had to be made whether the pre-existing condition constituted a “cause” of the loss (i.e. causa causans or a proximate cause of the occurrence) or merely a condition or circumstance upon which the injury operated (the causa sine qua non or a passive ally in the occurrence of the injury).

If “cause” means proximate cause, what effect does the addition of the words “directly or indirectly” have on the analysis?

Several cases have struggled with the scope of exclusions that refer to “indirect” causes or results. In Coxe v. Employers’ Liability Assurance Corporation Limited (1916) 2 K.B. 629, the insured was killed while on military duty in England during the First World War. He was walking along a railway track to visit a guard post when he was struck by a train. Liability for accidental death benefits was excluded where death was “directly or indirectly caused by, arising from, or traceable to...war”. Scrutton J. remarked:

But the words which I find it impossible to escape from are “directly or indirectly”. There does not appear to be any authority in which these words have been considered, and I find it impossible to reconcile them with the maxim causa proxima non remota spectatur. If it were contended that the result of the words is that the proximate cause, whether direct or indirect, is to be looked at, I should reply that the result does not appear to me to be consistent or intelligible. I am unable to understand what is an indirect proximate cause, and in my judgement the only possible effect which can be given to those words is that the maxim causa proxima non remota spectatur is excluded and that a more remote link in the chain of causation is contemplated than the proximate or immediate cause.

But a line must be drawn somewhere. For instance, the birth of Captain Ewing, even though it may be said to have led in the chain of causation to his being in the position in which he was killed, could not be considered as causing his death...

(Coxe, page 634)

The judge looked at whether the war placed the deceased in a position specially exposed to danger and if he was killed by reason of that danger, in determining whether the war was so remote from his death as to preclude a finding that it was indirectly caused by it. He accepted the arbitrator’s finding of fact that the deceased’s death was indirectly traceable to the war.

The policy under consideration in The Royal Trust Company v. the Great-West Life Assurance Company, [1979] I.L.R. 1-1079, (B.C.S.C.), excluded accidental death benefits “if death results directly or indirectly from operating, riding in or descending from ...an aircraft”. Justice Toy expressed “some difficulty in coming to a firm understanding of the appropriate interpretation” of these words, and found Justice Scrutton’s views to be helpful. The deceased’s aircraft crashed. Although he landed safely, he fell into a creek and drowned while walking out to safety. The defendant argued that the plane crash created the situation in which the aviator found himself, which indirectly resulted in his death. The plaintiff argued, on the other hand, that the aviator landed safely, breaking the causal connection between the flight and his eventual death from exposure. The judge agreed with the plaintiff. He concluded that mere attendance at the crash site was not enough; there had to be an additional causal or contributory element (such as an injury suffered in the crash) relating back to the flying:

There is clearly a sequence of events, the flying; the crash, the attempt to walk out; the slip, fall, and drowning, however, more is required to constitute an indirect result, the events must be a consequence of one another.

(The Royal Trust, page 112)

These decisions support Jonathan’s contention, and the arbitrator’s finding, that the inclusion of the word “indirectly” allows a more remote causal link.

Federation, supported by the IBC, argues that the addition of the words “directly or Indirectly” was intended to clarify that injuries sustained otherwise than by actual contact with a vehicle are covered, not to significantly change the requirement of causation. It points to the history of the definition of “insured person” and “accident” in the no-fault regulations.

Under the Schedule, the definition of insured person includes pedestrians, cyclists and other non-occupants of a vehicle who are “involved in an accident in Ontario involving the insured automobile”.⁷ The named insured, his or her spouse and either of their dependants are also included if they are involved in an accident while not occupants of an automobile, or if they suffer psychological or mental injury as a result of an accident involving physical injury to a prescribed family member.⁸ The definition of insured person therefore incorporates the definition of accident.

This is different from the earlier no-fault provisions contained in Schedule C, which included as insured persons, non-occupants who were “struck ...by” the automobile, or, in the case of the named insured and family, any other automobile.⁹

A number of cases dealt with whether a person was “struck by” an automobile where there was no direct physical contact. Under the “transmission of force” principle first developed in Re Strum and Co-operators Insurance Association, (1974) 1973 CanLII 577 (ON HCJ), 2 O.R. (2nd) 70, (S.C.), a moving vehicle that collides with, for example, a street sign, hydro pole or stalled vehicle, causing the object to strike a pedestrian, cyclist or other non-occupant is considered to have struck the person, who then is an insured under that policy.

Federation contends that the language change in the Schedule was intended to incorporate the transmission of force principle. In support, it introduces a partial record from Hansard of proceedings before the Standing Committee on General Government.¹⁰ The Committee was considering the automobile insurance package of reforms, ultimately enacted as the Insurance Statute Law Amendment Act, 1990, S.O.1990, c.2. The proceedings involved a technical presentation on the draft legislation and regulations by members of staff of the Ministry of Financial Institutions, which was responsible for the legislation. One Gillian Burton presented an overview of accidents benefits under the draft legislation, including a draft accident benefit schedule dated November 9, 1989. In the course of her statement, she said:

What exactly are no-fault benefits?.....They are paid for any injury - physical, mental or psychological - or death in any incident which involves a vehicle, whether directly or indirectly. This phrase, which is used in the bill, simply means that where a vehicle strikes a hydro pole, which then strikes a person on the sidewalk, that is considered to be an incident to which these no-fault benefits would apply, the pedestrian having been struck indirectly rather than directly by the automobile.

(Hansard, No. G-118)

While it may be permissible to use official statements in the legislature to illustrate the background against which legislation was enacted or the mischief it was intended to cure, courts have repeatedly warned against using legislative history as evidence of the meaning of particular words.¹¹ Moreover, even if admissible, the weight to be given to such history varies according to the circumstances. In this case, we are dealing not with an official ministerial statement, but with comments made by an otherwise unidentified member of the Minister’s staff. These can only be taken as an expression of her personal views. Moreover, I do not know whether the draft material before the Committee reproduced the language ultimately enacted. In the circumstances, I am unable to attach any significance to the statement.

The meaning of the language in the regulations must be established by examining the words used in context, applying the accepted principles of statutory construction. In my view, the significance of the qualifying words “directly or indirectly” is not limited to the application of the transmission of force principle. The case-law indicates that the absence of such qualifying language does not operate to limit recovery to injuries resulting from actual contact with an automobile, and that use of language relating to cause, even direct cause, imports the principle of proximate cause. It must be assumed that this formed the basis of understanding when the language of the Schedule was chosen.

I conclude that the phrase “causes, directly or indirectly” takes us somewhat beyond a strict analysis of the doctrine of proximate cause, as suggested in Coxe and The Royal Trust. It allows for consideration of a more remote causal link. However, the link cannot be so remote as to deprive the word “causes” of meaning. As I stated in Ekunah and Simcoe & Erie General Insurance Company, (April 22, 1996, OIC P-003550), it is not enough to show that an automobile was merely the location of the injury, that the injured person was occupying it at the time or that an automobile was involved in some peripheral or incidental way. The use or operation of an automobile must have caused the injuries, whether directly or indirectly. To determine this, paraphrasing Voisin, the role of the automobile in the whole scenario must be considered.

Federation did not seriously dispute the arbitrator’s finding that starting the engine represented the use or operation of an automobile. The phrase “use or operation” of an automobile has been given broad application, including such diverse activities as the negligent delivery of gas to a gas station by a tanker-trailer, (Stevenson); syphoning gas from a vehicle into a canister; (Pioneer Grain Company Limited v. Wellington Insurance Company, 1988 CanLII 3558 (AB QB), [1989] I.L.R. 1-2409 (Alb. Q.B.); operating a snow plough so as to shower the plaintiff with dirt and stones, (Jeffrey v. Sawyer, 1993 CanLII 5480 (ON CTGD), 16 O.R. (3d) 75 (Gen Div); and unhitching a forklift truck from a stationary vehicle, (Royal Insurance Co. Of Canada v. Guardian Insurance Co. Of Canada, (1995) 1995 CanLII 19501 (ON CTPD), 31 C.C.L.I. (2d) 42 (Gen. Div). In Faria v. Ferreira, (1995) 1995 CanLII 10632 (ON CTGD), 22 O.R. (3d) 737 (Gen. Div), Justice White found that the act of parking a car and leaving it parked constituted the operation of a vehicle in the context of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25.

In the Royal Insurance case, Justice Macdonald asked whether the activity was “one of the ways in which a service may be provided by an automobile, on a common sense basis...or an integral and necessary part of accomplishing the truck’s purpose” (at page 55). As a matter of common sense, starting the engine of a self-propelled vehicle is a basic and necessary aspect of its ordinary function as a means of transportation. It therefore constitutes the use or operation of an automobile, even if the vehicle did not actually move.

Whether the starting of the engine directly or indirectly caused Jonathan’s injuries is more difficult, but in my view, the agreed facts as presented to the arbitrator dispose of the issue. Clearly, the immediate cause of Jonathan’s fall was the fact his bicycle wheel broke. There is no evidence before me to indicate that anything other than contact with the pothole caused this. While these factors may have been the proximate cause of Jonathan’s fall, the agreed statement of facts acknowledges the role played by the vehicle in the sequence of events.

It is agreed that Jonathan heard the sound of a vehicle being started, looked to see where it was and to determine whether he was in any danger, but rode into the pothole before he was able to look back to where he was going. The arbitrator inferred from this - I think reasonably and appropriately - that “Jonathan was sufficiently distracted by the car engine that he took his eyes off the road”, causing him to ride into the pothole, breaking his wheel.

Federation argues that the size of the pothole was relatively insignificant, with no evidence that Jonathan would have tried to avoid it had he not been distracted. In my view, this is a difficult argument to make, given the agreement as to the facts and limited evidence, and I am not prepared to draw such an inference. Federation also questions the reasonableness of Jonathan’s response to the sound he heard. However, while this may be relevant to considerations of fault in a tort action, it is much less so in the context of statutory no-fault benefits.

I agree with the arbitrator that, on the particular facts of this case, the sound of the vehicle was the originating cause of the sequence of events that led to the ultimate injury. The facts are quite different from Tippet v. Doe et al., where a cyclist lost control, went off the road and then, by chance, struck a parked car. Here, the starting of the engine triggered the consequences that followed and was a crucial component of the chain of events that resulted in Jonathan’s fall. I agree with the arbitrator that the chain of events was not broken by Jonathan’s conduct, the state of the road or the fact the bicycle wheel broke. The fact that Jonathan may have a cause of action against the municipality in respect of the state of the road does not preclude a finding that his injuries were also caused by the use or operation of an automobile.

Federation argues that this is not the type of risk contemplated by automobile insurance. Jonathan could have as easily been distracted by the sound of a dog barking, a pedestrian or any number of things. Federation’s position is that this is an accident which arose from the use of a bicycle, not from the utilization of an automobile. Although the starting of the vehicle may have been a more remote cause than the breaking bicycle wheel or the state of the road, the language of the legislation allows for this. As for the risk contemplated, it is a matter of common knowledge that bicycles and cars co-exist uneasily together on public roadways, and a cyclist distracted by the potential danger posed by a starting car does not strike me as obviously outside the protection afforded by compulsory automobile insurance.

I find no error in the arbitrator’s conclusion that the use or operation of an automobile caused, directly or indirectly, Jonathan’s injuries and that he therefore suffered an accident within the meaning of the Schedule. Accordingly, the appeal is dismissed. Jonathan is entitled to his appeal expenses, payable by Federation.

October 18, 1996

Susan Naylor

Director’s Delegate

Date

Footnotes

1. 1Other regulations apply to accidents happening after December 31, 1993.
2. 2Part III, s. A(a).
3. 3This is consistent with the recent decision in Alchimowicz v. Continental Insurance Company of Canada, (September 4, 1996) No. C23058 (Ont. C.A.).
4. 4Ruttan J. in Storrie v. Newman and Insurance Corporation of British Columbia, (1982) 39 B.C.L.R. at 382 (S.C.B.C.).
5. 5C. Brown & J. Menzies, Insurance Law in Canada, (Toronto: Carswell, 1982) at 10:2.2.
6. 6Canadian Bank of Commerce v. London & Lancs. Guar. & Acc. Co., 1958 CanLII 120 (ON CA), [1958] O.R. 511, (C.A.) at 522.
7. 7Schedule, s. 2.(d).
8. 8Schedule, s. 2(e) and (f).
9. 9Schedule C, 3(1)(c) and (d); (Part V of the Schedule maintains the language “struck by” in the definition of “person insured in Quebec”, but also adopts the definition of “accident” in section 2).
10. 10Hansard, Official Report of Debates, Legislative Assembly of Ontario, No G5. (Thursday, December 14, 1989).
11. 11Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan, (Toronto: Butterworths, 1994) at 446.