Neutral Citation: 1998 ONICDRG 81, 1998 ONFSCDRS 81

FSCO A97-001527

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JHONY RAMOS

Applicant

and

GUARDIAN INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Issue:

The Applicant, Jhony Ramos, was injured as a result of walking into a vehicle that was parked outside of New City Hall in downtown Toronto on October 13, 1994. He sought statutory accident benefits from Guardian Insurance Company of Canada ("Guardian"), under the Schedule¹ Guardian denied that the Applicant was entitled to benefits, claiming that his injuries did not result from an "accident" as defined in the Schedule. The parties were unable to resolve their dispute through mediation, and Mr. Ramos applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Was Mr. Ramos injured as a result of an "accident," as defined in section 1 of the Schedule?

Mr. Ramos also claims interest on any amounts owing and his expenses incurred in the hearing.

Result:

1. Mr. Ramos was not injured as a result of an "accident," as that term is defined in the Schedule.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario in North York, Ontario, on August 25, 1998, before me, Shari L. Novick, Arbitrator.

Present at the Hearing:

Applicant:

not present

Mr. Ramos's Representative:

Algis S. Pace Barrister and Solicitor

Guardian's Representative:

Monica Gupta Barrister and Solicitor

Guardian's Officer:

Cheryl Park

Witnesses:

The parties filed an Agreed Statement of Facts and did not call any oral evidence.

Evidence and Findings:

The Agreed Statement of Facts filed by the parties set out the following relevant facts: A local television station was taping an episode of a talk show outside of New City Hall on October 13, 1994. One of the station's vehicles, operating as a mobile production studio, was parked in Nathan Phillips Square, north of the pedestrian sidewalk in front of New City Hall. The vehicle measures approximately 33 feet long, 10 feet wide and 12 feet high and contains a generator that powers cameras, microphones and lights used in the taping of the show. Various cables are hooked up to the generator via the "cable bumper hatch," which was described as a type of door that opens out from one side of the vehicle.

On the afternoon in question the Applicant was reading some papers as he walked across Nathan Phillips Square. He first noticed the vehicle from a distance of 40 metres away, and when he was approximately 15 metres away he saw that the door on the side "cable bumper hatch" was open. When he approached the vehicle, he moved to his left in order to walk around the open hatch, while continuing to read his papers. At that moment he looked up from his papers and his right cheekbone came into contact with the open hatch, causing him to fall backwards and hit the back of his head on the sidewalk.

At the time of the incident, the vehicle was parked with its engine off and was unattended.

The sole issue to be determined in this case is whether the incident described above constitutes an "accident," as that term is defined in the Schedule. The definition reads as follows:

"accident" means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device."

The parties made extensive submissions on this issue and cited various authorities in support of their respective positions. They each agreed that the Supreme Court of Canada's restatement in Amos v. Insurance Corporation of British Columbia (1995) 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618 of the "purpose test" requiring a consideration of whether the accident resulted from the ordinary and well-known activities to which automobiles are put, and the "chain of causation test" requiring some nexus or causal relationship between the injuries suffered and the ownership, use or operation of a vehicle, should be applied. Not surprisingly, however, the parties reached different conclusions after applying these tests to the facts of this matter.

In my view, the facts set out above do not constitute an "accident" as defined in the Schedule. The definition requires that the use or operation of an automobile be the cause of the injuries suffered. While I understand that the vehicle in question is capable of being driven on the road and presumably was driven to the location at which it was parked in Nathan Phillips Square, the parties agreed that at the time of the incident it was being used as a mobile production studio.

Both the Applicant and the Insurer referred to various cases in which vehicles with more than one use were involved in accidents. I find the most relevant one to be the decision in McAllister and Dominion of Canada General Insurance Company (OIC A-000926, December 3, 1992). In that case the Applicant and his wife were robbed and attacked by a gunman as they slept in their motor home at a rest area on the side of a highway. The Applicant's wife was killed in the attack, and the Applicant applied to be reimbursed for funeral expenses and for death benefits under the Schedule. The arbitrator dismissed the application, finding that the murder of Mrs. McAllister did not involve the use or operation of an automobile. She found that the attack arose in connection with the use of the motor home as accommodation and not as a result of its use as an automobile. The arbitrator stated that automobile insurance provides coverage for accidents which arise as a result of the vehicle's ordinary use as an automobile, and not in connection with its other potential uses.

As set out above, the vehicle that Mr. Ramos came into contact with was parked, with its engine off, and was being used as a mobile production studio. I would echo the arbitrator's words in McAllister that the injuries sustained by Mr. Ramos arise out of the vehicle's use as a production studio and do not result from its use as an automobile, and that the incident described therefore does not fit within the definition of the term "accident" appearing in the Schedule. In the same vein, the use of the vehicle as a mobile production studio does not constitute an "ordinary and well-known activity to which automobiles are put" as set out in Amos.

Counsel for the Applicant argued that the fact that the "cable bumper hatch" was open meant that the vehicle was still in use, in the same way as a parked car would be in use if one of its doors remained open. I do not agree with this analogy. The Applicant's injuries resulted from his coming into contact with the cable bumper hatch, which as I understand it, was required to be open so that the cables running from the generator could provide power to the cameras, lights and microphones necessary for the operation of the off-site set. Once the vehicle ceased being used as an automobile, the form that it took or the fact that the hatch remained open can have no bearing on the outcome of this matter.

Given my findings on the first branch of the test, I need not discuss the question of whether the requisite causal connection exists. For the reasons expressed above, the incident described does not fall within the definition of "accident" set out in the Schedule.

Expenses:

Despite his lack of success at this preliminary stage, the Applicant presented an arguable case and I therefore exercise my discretion to award him his expenses of the hearing. In the event that the parties cannot agree on the total amount of expenses payable, either party may apply to the Registrar for an assessment of expenses under Rule 77 of the Dispute Resolution Practice Code.

Order:

1. The Applicant was not injured as a result of an "accident," as that term is defined in the Schedule.

2. The Applicant is entitled to his expenses of the hearing.

November 18, 1998

Shari L. Novick Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96. O.R. 776/93 was extensively modified by O.R. 781/94; accordingly, where necessary, "1994 Schedule" refers to the original O.R. 776/93, and "1995 Schedule" refers to O.R. 776/93 as amended.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.