Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2000 ONFSCDRS 30

Appeal Order P99-00036

OFFICE OF THE DIRECTOR OF ARBITRATIONS

CAA INSURANCE COMPANY (ONTARIO)

Appellant

and

RICHARD TURNER

Respondent

Before:

David R. Draper

Counsel:

Lee Samis (For CAA)

Mark R. Frayne (for Richard Turner)

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 allowed. The arbitration order dated June 24, 1999 is rescinded and the following order is substituted:

Richard Turner is not entitled to statutory accident benefits from CAA Insurance Company (Ontario).

2. CAA Insurance Company (Ontario) will pay Richard Turner’s reasonable appeal expenses.

February 9, 2000

David R. Draper

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This is an appeal by CAA Insurance Company (Ontario) (“CAA”) from an arbitration order dated June 24, 1999. It raises two distinct issues:

• Did the arbitrator err in concluding that the vehicle Mr. Turner was operating, a Cushman Turf-Truckster, is an “automobile” for the purposes of the SABS- 1996?¹

• Did the arbitrator err in concluding that the benefits available to Mr. Turner under his employer’s accident insurance policy are not benefits under a worker’s compensation plan within the meaning of s.59 of the SABS-1996?

II. BACKGROUND

There is no dispute about the main facts. On May 27, 1997, Mr. Turner was injured while operating a three-wheeled golf course maintenance vehicle, a Cushman Turf-Truckster, in the course of his employment as a groundskeeper for the Scarboro Golf and Country Club (“the Club”). The turf-truckster was not licenced or insured under an automobile policy. Also, the Club had opted out of the Ontario worker’s compensation scheme and provided alternative coverage for its employees through an accident insurance policy issued by Lloyd’s.

Mr. Turner qualified under the Lloyd’s policy. However, he also applied to CAA, his wife’s automobile insurer, claiming statutory accident benefits. CAA refused the claim, eventually leading to an arbitration hearing in May 1999. The arbitrator rejected CAA’s position. First, she held that the turf-trucker was an automobile and, therefore, Mr. Turner was injured in an accident covered by his wife’s automobile policy. Second, she concluded that the coverage available to Mr. Turner under the Lloyd’s policy was not a worker’s compensation plan and, as a result, CAA was not exempted from paying accident benefits. CAA appeals, challenging both parts of the arbitrator’s decision.

III. ANALYSIS

A. “Automobile”

Mr. Turner’s claim depends on the definition of “automobile.” He is claiming accident benefits on the basis that he was injured in an accident involving “another automobile.”² “Accident” is defined in s.2(1) of the SABS-1996 as “an incident in which the use of operation of an automobile directly causes an impairment . . .” “Automobile” is not defined in the SABS-1996, but the Insurance Act, R.S.O. 1990, c.I.8 includes two definitions — in sections 1 and 224(1). The latter definition applies to Part VI of the Insurance Act, dealing with automobile insurance, and was added in 1990 as part of the package of amendments introduced as the Ontario Motorist Protection Program (Bill 68).

Judges and arbitrators struggled to determine the relationship between the definitions of “automobile” in the Insurance Act.³ However, that issue has now been resolved. In Regele v. Slusarczyk (1997), 1997 CanLII 3648 (ON CA), 33 O.R. (3d) 556, the Court of Appeal held that the operative definition is s.224(1), not s.1. The Court confirmed this interpretation in Morton v. Rabito (1998), 1998 CanLII 5865 (ON CA), 42 O.R. (3d) 161, 9 C.C.L.I. (3d) 267 (C.A.).⁴ As a result, the issue in this case is whether the turf-truckster fits within the following definition:

224.—(1) In this Part,

“automobile”, includes a motor vehicle required under any Act to be insured under a motor vehicle liability policy;

The Regele and Morton decisions also describe how the analysis should proceed. Two questions are involved. First, does “automobile,” in ordinary parlance, include the vehicle being considered? If so, the vehicle is an automobile within the meaning of Part VI of the Insurance Act. If not, the second question is posed: Does the vehicle qualify as an automobile under an expanded definition in the policy or the Insurance Act?

Although the Court of Appeal has provided guidance on how to approach these cases, it also has made a strong plea for clearer legislation reflecting public policy decisions about the scope of automobile insurance coverage:

I confess to some misgivings about this process. Part VI of the Insurance Act represents the expression of a social policy adopted by the Legislature of this province to deal with automobile insurance. The resolution of cases that impact upon that policy would be better guided by reference not to ordinary parlance and not to a definitional labyrinth, but rather by clear legislative language that delineates the boundaries of the policy considerations sought to be achieved.

. . . it would, in my respectful view, be helpful if the Legislature would turn its attention to the policy questions arising in these cases and would answer them with a clear, self-contained definition of “automobile” that reflects with precision the parameters of the social policy it is endeavouring to achieve.⁵

The arbitrator followed the Regele/Morton analysis. CAA contends, however, that she erred in applying both parts of the test.

1. Ordinary parlance

In determining the meaning of “automobile” in ordinary parlance, the courts have not demanded specific evidence about the general use or understanding of the term. Instead, judges have exercised their own judgment. For example, in Regele, the issue was whether a farm tractor was an automobile. Finlayson J.A. simply states that “[i]n ordinary parlance, an automobile does not include a farm tractor.” Later in the decision, he repeats that the “usual or ordinary meaning of ‘automobile’ does not include a farm tractor.”

The Morton decision deals with two separate incidents involving backhoes. In applying the ordinary parlance test, Catzman J.A. states: “Just as it was the view of Finlayson J.A. in Regele that, in ordinary parlance, an automobile does not include a tractor, so it is mine that, in ordinary parlance, an automobile does not include a backhoe.”

Some additional guidance is found in the Court of Appeal’s earlier decision in Bergsma v. Canada (Attorney General), [1996] O.J. No. 3082 (C.A.), aff’g [1994] O.J. No. 2572 (Gen. Div.). In that case, the plaintiff claimed she was injured in an accident resulting from the negligence of the drivers of trucks owned by the Department of National Defence (“DND”). Unlike Mr. Turner, she did not want the vehicles to qualify as automobiles. If they did, she would face the threshold provisions in s.266 of the Insurance Act. Her argument was that because DND vehicles were not required to carry insurance, they were excluded from the definition of “automobile” in s.224(1). The motions judge rejected this argument, concluding that the vehicles were automobiles despite the lack of insurance. In a brief endorsement, the Court of Appeal dismissed the plaintiff’s appeal.

The Bergsma decision was not considered in Regele. However, it was in Morton, where one of the parties argued that, like in Bergsma, a backhoe was an automobile even though it was not required to be insured under a motor vehicle liability policy. Catzman J.A. dealt with this argument as follows:

Bergsmais very different from the present case. Although neither the reasons of Hogg J. nor the endorsement of this court indicates what types of DND vehicle were involved in the accident, the factums filed on the appeal indicates that the vehicles were trucks. A truck, in ordinary parlance, is an automobile. One need not resort to the statutory, definition of “automobile” in s.224(1) to deem a truck to be an automobile, and the fact that the truck was not a “motor vehicle required under any Act to be insured under a motor vehicle liability policy” did not exclude it from being an automobile. In the present case, however, we are dealing with a backhoe, not a truck. In ordinary parlance, an automobile does not include a backhoe, so that if a backhoe is to fall within the definition of “automobile” as that term is used in s.275 of the Insurance Act and in s. 9 of the automobile insurance regulation, it must fall within some enlarged statutory definition of that term.

This excerpt helps clarify the Court’s approach. In ordinary parlance, “automobile” is not so narrow as to exclude trucks, at least the undefined types involved in Bergsma, but not broad enough to include farm tractors or backhoes.

The arbitrator’s application of the ordinary parlance test is relatively brief and, for convenience, is set out below:

The turf-truckster Mr. Turner drove was of a size comparable to that of a small car. It had a padded bench seat, could seat two people and was often used to transport labourers around the golf course property.⁶ The turf-truckster had many features in common with a roofless or open-to-the-air automobile, for instance, a steering wheel, gear selector, clutch, brake and accelerator pedals, a parking brake pedal and release. It had a fuel gauge, a tachometer and a speedometer, pneumatic tires, headlights and brake lights. The turf-truckster was powered by a gasoline or diesel engine. It was designed to transport people as well as loads and operated at speeds of up to 30 km/hr, travelling in one of its three forward gears, or in reverse.

In ordinary parlance I find a turf-truckster is an “automobile,” just as a pickup truck or a motorcycle can be referred to as an automobile.⁷

Mr. Turner submits that this is a factual finding and, therefore, not appealable under s.283(1) of the Insurance Act, which limits appeals to questions of law. I do not agree. The facts in this case were largely uncontested — the type of vehicle involved and its use, and the details of the incident. The issue was the interpretation of the definition of “accident,” focussing on the definition of “automobile.” While the distinction between questions of law and questions of mixed fact and law can be difficult, I am satisfied that this appeal raises a question of law. In support of this conclusion, I note that in Bergsma, Regele, and Morton, the Court of Appeal seems to have treated the legal characterization of the vehicles in those cases as a question of law, not fact.

CAA raises a number of objections to the arbitrator’s analysis. First, it claims that she applied the wrong test. In CAA’s submission, the test is not whether the vehicle has features in common with automobiles, but whether it is included within the common understanding of the term “automobile.” While I agree with CAA’s formulation of the ordinary parlance test, it was legitimate for the arbitrator to consider the features of the turf-truckster and compare them with vehicles clearly falling within the ordinary meaning of “automobile.” Turf-trucksters are not common vehicles. Without additional information, most people probably could not say whether they would regard a turf-truckster as an automobile. However, the question is more easily answered if it is posed as follows: Would you consider a turf-truckster, a vehicle with the following features, to be an automobile?

Of greater concern is that the list of features be complete and accurate, including features that differ from typical passenger vehicles. As CAA’s counsel points out, the features mentioned by the arbitrator are also found in many airplanes. In my view, it is significant that the turf-truckster has three wheels, no doors, no windows, no top⁸ and, most important, is not intended for use on roads. The operator’s manual states:

This unit is not a motor vehicle within the definition of the national traffic motor vehicle safety act. It is not designed or manufactured for use on roads, streets or highways. It is not appropriate for such use.

This unit is not meant to be licensed as a motor vehicle.

[emphasis in the original]

In CAA’s submission, the ordinary parlance test involves a “gut reaction” — would anyone seeing a turf-truckster approaching say, “here comes an automobile?” There is some strength in this argument. The turf-truckster is more likely to be called a cart or maintenance vehicle. The difficulty is that “automobile” is not a term commonly used in conversation, typically giving way to more specific terms such as car, station wagon, van, truck or bus. Therefore, I do not find it determinative that this vehicle would not typically be called an automobile in ordinary conversation.

The question is the scope of the common understanding of “automobile.” As set out above, the arbitrator relied on decisions that pickup trucks and motorcycles can be referred to as automobiles, concluding that, similarly, a turf-truckster is an automobile. However, CAA contends, correctly in my view, that these decisions and others have not interpreted the common meaning of “automobile” as broadly as the arbitrator suggests. Rather, “automobile” has been interpreted quite narrowly, subject to broader legislative language.

For example, in Walker v. Allstate Insurance Co. of Can. (1986), 1986 CanLII 2698 (ON HCJ), 19 C.C.L.I. 6 (Ont. H.C.J.), conf’d (1989), 1989 CanLII 4121 (ON CA), 37 C.C.L.I. 267 (Ont. C.A.), a decision relied upon by the arbitrator, Watt J. said as follows:

It is an incontrovertible [fact] that in common discourse and observation an automobile and a motorcycle represent discrete types of motor vehicle, each a means of conveyance propelled otherwise than by muscular power. A casual observer acquainted with each would, in speech and sight, mistake neither for the other. (p.12)

This is a strong judicial statement that in common parlance, “automobile” does not include motorcycles. The result in Walker, that the motorcycle was covered under a standard automobile policy, turned on the broad definition of “automobile” in s.1 of the Insurance Act and the industry practice of insuring motorcycles under standard automobile policies. The decision was not that a motorcycle is an automobile in ordinary parlance, but that it is “self-propelled vehicle,” making it an automobile within the definition in s.1 of the Insurance Act.

Similarly, in Thériault v. General Accident Assurance Co. of Canada, (1990), 110 N.R.R. (2d), 4 (C.A.), aff’g (1989)1989 CanLII 7747 (NB QB), 106 N.B.R. (2d) 361, the New Brunswick Court of Appeal did not hold that a four-wheel all-terrain vehicle was an “automobile” in ordinary parlance. The Court found that it was “self-propelled vehicle” and, therefore, within the legislative definition of “automobile.”

In contrast, the Alberta Court of Appeal specifically considered the ordinary meaning of “automobile” in Thomeus v. Mutual of Omaha Insurance Co. (1978), 83 D.L.R. (3d) 748, [1978] I.L.R. ¶1-968, rev’g 79 D.L.R. (3d) 231, [1977] I.L.R. ¶1-927. The Court reversed the decision of the trial judge, stating that “in common understanding a motorcycle is not equated with an automobile.”

In Patel v. Mutual of Omaha Insurance Co. (1988), 1988 CanLII 10350 (ON HCJ), 29 C.C.L.I. 243 (Ont. H.C.J), the plaintiff’s brother was killed while driving a motor scooter. The issue was whether this incident fit within the wording of the policy: “Injuries received . . . while driving or riding in, or boarding or alighting from an automobile . . .” McRae J. held that there was no coverage, stating that “[it] is clear to me that we are to use the ordinary meaning of automobile and it does not, in my view, cover a motor scooter.”⁹

Based on these decisions, I find little support for Mr. Turner’s contention that the turf-truckster is an automobile in ordinary parlance.

CAA referred me to two dictionary definitions of “automobile.” This is not new evidence, as suggested by Mr. Turner, but legitimate legal argument appropriate on appeal. Webster’s New World Dictionary of American English (3rd College Edition, 1988) defines “automobile” as: “a passenger car, usually four-wheeled, propelled by an engine or motor, esp. an internal-combustion engine, that is part of it, meant for traveling on streets or roads; motorcar.” The Gage Canadian Dictionary (1987, Stoddart) gives the following definition: “a passenger vehicle that carries its own engine and is driven on roads and streets; car.”

In my view, these definitions reflect the ordinary meaning of “automobile.” It is a motorized vehicle designed and used to transport people, primarily on roads. While automobiles have other uses, the primary purpose is transportation. In my view, the turf-truckster falls well outside the common understanding of “automobile.” It is not designed to transport passengers on roads, but for the purpose Mr. Turner was using it — transporting material off-road. As a result, I accept CAA’s submission that the arbitrator erred in her interpretation of the first part of the Regele/Morton test.

2. Expanded definition in the Insurance Act

Having found that the turf-truckster is not an automobile in ordinary parlance, the question is whether it fits within the enlarged definition in 224(1) of the Insurance Act as “a motor vehicle required under any Act to be insured under a motor vehicle liability policy.”¹⁰ As noted above, the turf-truckster was not insured. Nor is there any indication that the Club was charged under any legislation for allowing it to be operated without proper insurance. Nevertheless, the arbitrator asked, properly in my view, whether the turf-truckster should have been insured under a motor vehicle liability policy.

On appeal, CAA argues that there are thousands of turf-trucksters and similar vehicles in Ontario not insured under motor vehicle liability policies because no one expects them to be. This may be, but neither party presented evidence about industry practice, or the positions taken by those who regulate the insurance industry and enforce the relevant provincial legislation. In previous cases, the courts have considered industry practice.¹¹ This kind of evidence might have been helpful here.

The principal Ontario legislation requiring motor vehicle liability policies is the Compulsory Automobile Insurance Act, R.S.O. 1990, c.C.25 (the “CAIA”). It is important to note that the CAIA does not require all motor vehicles to be insured. Instead, it restricts the use of uninsured vehicles. According to s.2 of the CAIA, any owner or lessee of “motor vehicle” who operates it, or allows it to be operated, on a highway without insurance is guilty of an offence. “Motor vehicle” is defined in s.1(1):

“Motor vehicle” has the same meaning as in the Highway Traffic Act and includes trailers and accessories and equipment of a motor vehicle;

The definition of “motor vehicle” in the s.1(1) of the Highway Traffic Act, R.S.O. 1990, c.H.8 (the “HTA”) is as follows:

“motor vehicle” includes an automobile, motorcycle, motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car, or other motor vehicles running only upon rails, or a motorized snow vehicle, traction engine, farm tractor, self-propelled implement of husbandry or road- building machine within the meaning of this Act;

As the arbitrator correctly points out, the vehicle under consideration in Regele, a farm tractor, is specifically excluded from this definition. So are backhoes, the vehicles involved in Morton.¹² On this basis, the arbitrator distinguished Regele and Morton, finding that the turf-truckster was a “vehicle propelled or driven otherwise than by muscular power” and, therefore, within the HTA definition of “motor vehicle.”

Having found that the turf-truckster was a “motor vehicle,” the arbitrator then asked whether it was required to be insured under the CAIA. It is clear that Mr. Turner was not operating the vehicle on a highway when he was injured. He was on the Club’s private grounds doing maintenance on the golf-course. The arbitrator found, however, that the Club’s four turf- trucksters were sometimes driven across a road to get from one side of the golf course to the other:

However, the evidence at the hearing clearly established that, from time to time, the club’s turf-trucksters were operated on a highway. Both Mr. Warren, the manager of the club, and Mr. Turner testified that turf-trucksters were driven across Scarborough Golf Club Road, a public road, to get from one side of the golf course to the other, because the road bisected the golf course property. Mr. Turner testified that he could drive the turf-trucksters through a tunnel under the road when loads allowed, but at various times he would drive the vehicles across Scarborough Golf Club Road, out a gate on the east side of the road and through a gate on the west side, or vice versa. The witnesses testified that the club owned about four turf-trucksters which were used interchangeably. I find it is much more probable than not that the turf- truckster used by Mr. Turner on May 27, 1997 had been operated on a highway many times, when it crossed Scarborough Golf Club Road. (p.6, emphasis added)

The arbitrator concluded that, on these facts, the turf-truckster was required to be insured under a motor vehicle liability policy. It is not clear, however, whether she found the insurance obligation under the CAIA or the Off-Road Vehicles Act, R.S.O. 1990, c.O.4 (the “ORVA”).

(a) Compulsory Automobile Insurance Act

I accept that the turf-truckster fits within the definition of “motor vehicle” in s.1(1) of the HTA as “any other vehicle propelled or driven otherwise than by muscular power.” Although it has functions similar to some “self propelled instruments of husbandry” and “road-building machines,” which are excluded, it cannot fairly be said that the turf-truckster was used in either farming or road-building. The issue, therefore, is whether it was a motor vehicle required to be insured under the CAIA.

CAA argues, as it did at the arbitration, that insurance was not required because the turf-truckster was not being operated on a highway at the time of the incident. Mr. Turner responds that the arbitrator correctly held that because the turf-trucksters were sometimes driven across a public road, they should have been insured under a motor vehicle liability policy.

As noted above, the CAIA regulates the use of motor vehicles. They cannot be operated on highways without proper insurance coverage. If they are, the owner is guilty of an offence under s.2 of the CAIA. The operator can also be prosecuted under s.3 of the CAIA for failing to carry an insurance card. In my view, however, that is the extent of the obligation. The CAIA does not require insurance for vehicles that have travelled on highways in the past, or for those likely to do so in the future. As a result, I agree with CAA that the insurance requirement must be assessed at the time of the incident.

The time of the accident must be viewed reasonably. I would not suggest that it is limited to the moment of the collision. For example, the status of a vehicle travelling on a highway may not change simply because it swerves off the road before hitting something.¹³ In this case, however, Mr. Turner’s injuries were unrelated to any operation of the turf-truckster on a highway. As a result, insurance was not required under the CAIA.

This might seem like a significant restriction in coverage for off-road accidents. However, it applies only to vehicles that are not automobiles in ordinary parlance. Any person injured in an incident involving a vehicle commonly considered to be an automobile will have access to accident benefits under some automobile policy or from the Motor Vehicle Accident Claims Fund. This is true whether or not the vehicle is insured and whether the incident occurs on or off a public highway.

For these reasons, I conclude that the turf-truckster does not qualify as an “automobile” on the basis that it was required to be insured under the CAIA.

(b) Off-Road Vehicles Act

The ORVA regulates the operation of off-road vehicles, defined in s.1 as follows:

“Off-road vehicle” means a vehicle propelled or driven otherwise than by muscular power or wind and designed to travel,

(a) on not more than three wheels, or

(b) on more than three wheels and being of a prescribed class of vehicle;

As the turf-truckster is a three-wheeled vehicle not propelled or driven by muscular travel, it seems to fit within the first branch of the definition. The regulation-making authority in s.23 of the ORVA allows the Lieutenant Governor in Council to designate and exempt any class of off-road vehicles from all or any part of the Act or regulations. Subsection 2(1) of R.R.O. 1990, Reg. 863, as amended, exempts a number of vehicles including golf carts, road-building machines, self- propelled implements of husbandry, wheelchairs, and certain motorcycles. CAA did not argue that the turf-truckster is a golf-cart and, in any event, I do not believe it is. In ordinary parlance, golf- carts are designed to transport golfers and their equipment, not maintenance materials. Therefore, I accept that the turf-truckster fits within the definition of “off-road vehicle.”

Section 15 of the ORVA prohibits anyone from driving an off-road vehicle, and any owner of an off-road vehicle from allowing it to be driven, unless it is insured under a motor vehicle liability policy. However, according to s.15(9), these provisions do not apply “where the vehicle is driven on land occupied by the owner of the vehicle.” For the same reasons set out in the previous section, I conclude that this section applies here. At the time of the incident, the turf-truckster was being driven on land occupied by the Club and, therefore, was not required to be insured under the ORVA.

For these reasons, the turf-truckster does not qualify as an “automobile” on the basis that it was required to be insured under the ORVA.

B. “Workers’ compensation law or plan”

CAA also claims that the arbitrator erred in concluding that Mr. Turner was not entitled to receive benefits under a worker’s compensation plan within the meaning of s.59(1) of the SABS- 1996:

59.—(1) The insurer is not required to pay benefits under this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under any worker’s compensation law or plan.

The arbitrator found that in 1996, the Club decided to withdraw from the Ontario workers’ compensation system. In lieu of compensation through the Workers’ Compensation Board,¹⁴ the Club arranged for coverage under a policy issued by Lloyd’s, described as “Personal Accident Insurance.”¹⁵ In my opinion, this is “accident insurance” within the meaning of s.1 of the Insurance Act. It provides benefits to specified Club employees for bodily injuries caused by accident. As I understand the policy, blue collar workers, including Mr. Turner, are covered for employment-related injuries, while coverage for white collar workers includes their non-business activities.

“Worker’s compensation law or plan” is not defined in the SABS-1996 or the Insurance Act, although the phrase has been used in relation to accident benefits since the old Schedule “E” to the Insurance Act. Despite this, I was not provided with any decisions considering its meaning, nor am I aware of any.

Looking at its plain meaning, I agree with CAA that “worker’s compensation law or plan” cannot be limited to statutory schemes. The mention of “law” suggests that “plan” means something different. Unfortunately, its scope is not clear.

As the arbitrator notes, the SABS-1996 attempts to coordinate accident benefits with other sources of compensation, whether from Ontario or elsewhere. Subsections 59(2)-(4) specifically apply to accident victims who qualify under Ontario’s Workers’ Compensation Act (“the WCA”),¹⁶ while subsections 59(1) and (5) are more general. When s.59(1) is read in this context, I agree with the arbitrator that “worker’s compensation law or plan” is meant to be generic term dealing with sources of compensation similar to that provided under the WCA. It is not intended to eliminate accident benefits for Ontario workers like Mr. Turner who are not entitled to benefits under the WCA, but are covered under a private accident insurance policy arranged by their employer, whatever benefits it provides.

In Ontario, both the workers’ compensation and automobile insurance schemes involve a trade- off, limiting the right to sue in exchange for the payment of benefits. The principle underlying s.59 of the SABS-1996 and its predecessors is that someone who is entitled to benefits under the WCA cannot also receive accident benefits. This is because the trade-off between tort and employment- related benefits is already reflected in the WCA. However, if the injured person opts out of the WCA by electing to sue, this prohibition is lifted, with the rules about accident benefits linked to the extent of the restrictions in the Insurance Act on actions arising out of automobile accidents. In contrast, the Lloyd’s policy is simply an accident insurance policy provided by an employer, not affecting the right of the employees to sue.

For these reasons, this part of CAA’s appeal is dismissed.

IV. APPEAL EXPENSES

In view of the novel and important issues raised in the appeal, and Mr. Turner’s position as respondent, CAA did not oppose his request for appeal expenses, regardless of the outcome. I agree that he should recover his reasonable appeal expenses.

February 9, 2000

David R. Draper

Director’s Delegate

Date

Footnotes

1. 1Ontario Regulation 403/96, as amended, the Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996.
2. 2SABS-1996, s.2(1) - “insured person.”
3. 3For example, see Heath v. Co-operators General Insurance Co. (1994), 24 C.C.L.I. (2d) 1994 (Gen. Div) and Pintus and State Farm Mutual Automobile Insurance Company, (OIC P-012264, February 10, 1997).
4. 4Leave to appeal refused, May 31, 1999, Doc. 27129 (S.C.C.).
5. 5Morton v. Rabito, p.172.
6. 6[Footnote in the original] Evidence of Richard Turner, Jr.
7. 7[Footnote in the original] For references to “truck” see footnote six of the Morton decision. For references to “motorcycle” see Walker v. Allstate Insurance Company of Canada, (1986) 1986 CanLII 2698 (ON HCJ), 19 CCLI 6 (Watt, J., Ont. H.Ct.), and TWA v. Co-op Fire & Casualty Co. 1973 CanLII 1665 (BC SC), [1974]1 W.W.R. 476 (SCC), as cited in the MacPhail and AXA Insurance Canada appeal decision, (OIC P96-00053, February 7, 1997). For all-terrain vehicles see Thériault v. General Accident Assurance Company of Canada, (1989) 1989 CanLII 7747 (NB QB), 106 NBR (2d) 361 (NBTD), upheld (1990) 1990 CanLII 11415 (NB CA), 110 NBR (2d) 4 (NBCA), Wellington Insurance Company v. Wawanesa Mutual Insurance Company et al., 1993 CCLI ¶ 1-3000 (NSCA).
8. 8Arbitration exhibit 2, Tab 2, is four photographs of the Cushman turf-truckster. The parties agree that the top shown in the photographs was added sometime after Mr. Turner’s accident.
9. 9In his decision, McRae J. highlighted the word “in” in the policy, suggesting that the specific wording also influenced the outcome.
10. 10Neither party relied on the wording in the policy.
11. 11For example, see Walker v. Allstate, cited above.
12. 12The definition of “motor vehicle” excludes “road-building machines,” defined in s.1(1) to include backhoes. Farm tractors and backhoes are included under a separate, broader definition of “vehicle” in s.1(1) of the HTA.
13. 13For example, see Caldarola and Royal Insurance Company of Canada, (OIC P96-00076, July 15, 1997).
14. 14Now the Workplace Safety and Insurance Board.
15. 15Arbitration exhibit 3.
16. 16Now the Workplace Safety and Insurance Act, S.O. 1997, c.16.