Neutral Citation: 2000 ONFSCDRS 53

FSCO A99-000585

BETWEEN:

ELIZABETH, AMANDA AND JONATHAN DONOVAN

Applicants

and

CO-OPERATORS GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Judith Killoran

Heard:

January 18, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

A final submission was received on February 14, 2000.

Appearances:

Kevin Wolf for Mrs. Donovan

Philippa G. Samworth for Co-operators General Insurance Company

The Applicant, Elizabeth Donovan, was the spouse of Larry Donovan who died on April 16, 1998 as a result of carbon monoxide poisoning. Mrs. Donovan and her two children, Amanda and Jonathan, applied for death benefits and funeral expenses from Co-operators General Insurance Company ("Co-operators"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Mrs. Donovan applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Insurance Act").

The preliminary issue is:

Did Mr. Donovan's death result directly from an incident involving the use or operation of an automobile as defined by the Insurance Act?

Mr. Donovan's death did not result directly from an incident involving the use or operation of an automobile as defined by the Insurance Act.

Background - Agreed Statement of Facts

The parties filed an Agreed Statement of Facts which I have summarized as follows. Mr. and Mrs. Donovan were employed as superintendents with Greenwin Property Management Inc. at 145 Neptune Drive in North York. In the course of his employment, Mr. Donovan operated a Gravely tractor, which was the property of the building's owners.

Mr. Donovan's body was discovered in a "tractor room" located in the underground parking garage of 145 Neptune Drive. This room housed a Gravely tractor model #8199-KT Professional along with other tools and equipment. Mr. Donovan was found sitting in a chair approximately three or four feet from the tractor, which was running at the time. His death was attributed to carbon monoxide intoxication.

The Co-operators insured Elizabeth Donovan under a Standard Automobile Policy for coverage on a 1991 Plymouth. Mrs. Donovan and her two children filed claims for death benefits and funeral expenses under this policy and the Schedule. The Co-operators denied the claims on the grounds that Mr. Donovan did not die as a result of any injuries sustained directly out of the use or operation of an automobile as defined under the Insurance Act.

The parties agreed that the Gravely tractor had the following automotive features, among others:

(a) an air-cooled engine

(b) a battery 12 volt, BCL group 22f, 42 amp. hr.

(d) a steering wheel

(e) a gear selector

(f) a clutch, brake and accelerator pedals

(g) a fuel gauge

(h) a 4 speed manual transmission with a reverse gear

(i) 4 pneumatic tires (j) headlights

(k) requires the use of regular gasoline, transmission fluid and oil

(l) a maximum operating speed of 13.7 kilometres per hour

The Gravely tractor was designed to allow for the attachment of a rotary mower, a plow or a snow-blower. It was also equipped with a hydraulic lift system which allowed the operator to raise or lower the attachments. Mr. Donovan used the Gravely tractor in the course of his employment primarily for the following:

(a) for garbage removal. Mr. Donovan was required to use the tractor to tow garbage bins to various locations including from the underground garage to the outside parking lot of the building, where the main bins are located, and to transport bins to various locations behind the building underneath balconies in order to clear out garbage from vacant apartments. During this process, on the odd occasion, the tractor would be driven on the City sidewalk in order to allow Mr. Donovan to get to the rear of the building.

(b) for snow removal. In the winter, Mr. Donovan used the tractor to plow snow from the inner walkways of the condominium. When performing this function, it was occasionally driven on the City sidewalks. However, Mr. Donovan did not use the tractor to clear the City sidewalks as this was done by the City. Nor did Mr. Donovan use the tractor to clear the driveway as this was handled by an independent contractor. While the tractor was designed to accommodate lawn mowing equipment, Mr. Donovan was not asked to perform these services as they were sub-contracted out by the property owners.

Analysis

The Applicants' claim turns on the definition of "automobile." Mr. Donovan's dependants are claiming accident benefits on the basis that he was injured in an accident involving an automobile. "Automobile" is not defined in the Schedule but the Insurance Act contains two definitions of "automobile," which are found in section 1 and subsection 224(1) respectively.

Section 1 defines "automobile" as follows:

" automobile" includes a trolley bus and a self-propelled vehicle and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft;

Part VI of the Insurance Act deals with automobile insurance and provides this definition of "automobile" in subsection 224(1):

- (1) In this Part,

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

There is considerable jurisprudence reflecting the struggle of judges and arbitrators to determine the relationship between the two definitions of "automobile" in the Insurance Act. The issue was finally resolved by the Court of Appeal in Regele v. Slusarczyk.² The Court held that the operative definition of "automobile" is found in subsection 224(1) of the Insurance Act, not section 1. This interpretation was confirmed in Morton v. Rabito³ and Grummett v. Federation Insurance Company.⁴ Therefore, the issue in this case is whether the Gravely tractor fits within the definition found in subsection 224(1) of the Insurance Act.

The decisions in Regele, Morton and Grummett provide guidance in analyzing this issue. Three stages 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 stage is to determine whether the vehicle meets the definition of "automobile" in the motor vehicle liability policy. Finally, the third stage is to determine whether the vehicle falls within an expanded definition of "automobile" under the Insurance Act as a "motor vehicle required under any Act to be insured under a motor vehicle liability policy."

Ordinary Parlance

In Regele, the Court of Appeal considered whether a farm tractor was an automobile. The judge did not demand specific evidence about the general use or understanding of the term but exercised his own judgement to conclude that, in ordinary parlance, an automobile does not include a farm tractor. The same sentiment was echoed in the Morton decision when the judge decided that, in ordinary parlance, an automobile does not include a backhoe.

The Court of Appeal's earlier decision in Bergsma v. Canada (Attorney General)⁵ provides some additional direction. The plaintiff claimed she was injured in an accident resulting from the negligence of the drivers of the trucks owned by the Department of National Defence ("DND"). She argued that because DND vehicles were not required to carry insurance, they were excluded from the definition of "automobile" in subsection 224(1). The Court concluded that, in ordinary parlance, a truck is an automobile and the statutory definition should be extended to include this particular truck. The Court of Appeal dismissed the appeal.

In Morton, one of the parties argued that a backhoe was an automobile even though, as in Bergsma, it was not required to be insured under a motor vehicle liability policy. The Court's approach was that, in ordinary parlance, "automobile" is not so narrow as to exclude trucks but not broad enough to include farm tractors or backhoes.

In Grummett, the Court considered whether or not a race car was an "automobile" pursuant to the provisions of the Insurance Act, thereby giving rise to entitlement to statutory accident benefits. The race car was not required to be insured pursuant to the Compulsory Automobile Insurance Act, R.S.O. 1990, c.C.25, and was consequently not required by law to be insured under a motor vehicle liability policy. The plaintiffs argued that since the race car was not insured, Mr. Grummett was entitled to benefits under his standard motor vehicle liability policy. The insurer denied the claim on the basis that the race car which caused Mr. Grummett's injuries was not an "automobile" pursuant to the provisions of the policy, the Insurance Act and the Schedule.

In Grummett, the judge considered it appropriate to determine the purpose and function of the vehicle. He reviewed McFarland v. Storm⁶ where it was determined that a dune buggy was not an automobile under the Insurance Act. An automobile was held to be a "vehicle which was designed for and capable of the transportation of passengers on streets and highways." The judge concluded that race cars were not designed for ordinary vehicular traffic on highways or city streets as they do not have brake lights or doors and they are not capable of carrying passengers other than the driver. Their design is for competitive racing and for no other purpose. The judge also found that there was nothing in the statute or in the particular automobile policy which would be broad enough to include the race car which was involved in the incident. He ruled that the race car causing the injury to Peter Grummett was not an "automobile" pursuant to the provisions of the Insurance Act. Therefore, the accident in question did not give rise to an entitlement to statutory accident benefits.

In CAA Insurance and Turner,⁷ Director's Delegate Draper held that a turf-truckster was not an automobile in ordinary parlance. In his view, the question involved the scope of the common understanding of automobile and he posed it in the following fashion: "Would you consider a turf-truckster, a vehicle with the following features, to be an automobile?"

In this case, while many of the features of the Gravely tractor are common to typical passenger vehicles, there are many features that differ. More importantly, I consider it crucial to look not so much at a compilation of features but at the entire vehicle. The small tractor in question has four wheels, no windows, no top and is not intended for use on roads. It travels at a maximum speed of 13.7 kilometres an hour. The Gravely tractor is not designed to transport passengers on the roads but rather, it is designed to transport material off-road. It does not meet the common understanding of automobile. As a result, I find that the Gravely tractor in question is not an automobile in ordinary parlance. Therefore, I shall proceed to the second stage which is to consider whether the vehicle qualifies as an automobile under the motor vehicle liability policy.

The Motor Vehicle Liability Policy

The motor vehicle liability policy was not filed into evidence and neither party relied on the policy. However, it was referred to in the Agreed Statement of Facts as a Standard Automobile Policy. I was not presented with any evidence or submissions, based on an interpretation of the policy, which established that the Gravely tractor would have satisfied the definition of "automobile" found in the policy. Therefore, I am unable to find that the Gravely tractor could be considered an automobile within the meaning of the applicable policy.

Having found that the Gravely tractor is not an automobile, in ordinary parlance, and does not qualify as an automobile according to the terms of the motor vehicle liability policy in question, the next question is whether it fits within the expanded definition in subsection 224(1) of the Insurance Act as a "motor vehicle required under any Act to be insured under a motor vehicle liability policy." Both the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C. 25 and the Off-Road Vehicles Act, R.S.O. 1990, c.O.4 contain liability policy requirements for motor vehicles.

Compulsory Automobile Insurance Act (the "CAIA")

The principal Ontario legislation requiring motor vehicle liability policies is the Compulsory Automobile Insurance Act (the "CAIA"). Section 2 of the CAIA specifies that any owner or lessee of a "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 subsection 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 Highway Traffic Act, R.S.O. 1990, c.H.8 (the "HTA") is found in subsection 1(1) 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 the Act;

I disagree with the submission from Co-operators that the Gravely tractor does not fit within the definition of "motor vehicle" as it is a "self-propelled instrument of husbandry." Although it has functions similar to some "self-propelled instruments of husbandry", it cannot be said that the Gravely tractor was used for farming or the tillage or cultivation of the ground.

However, the CAIA does not require all "motor vehicles" to be insured. Rather, it restricts the use of uninsured vehicles. Although I accept that the Gravely tractor fits within the definition of "motor vehicle" in subsection 1(1) of the HTA, the issue is whether it is required to be insured under the CAIA. In order for the Gravely tractor to be required to be insured under a contract of automobile insurance, it must be operated or allowed to be operated on a highway.

Highway is defined in subsection 1(1) of the CAIA:

"highway" has the same meaning as in the Highway Traffic Act;

The definition of highway in the HTA is found in subsection 1(1) as follows:

" highway" includes a common and public roadway, 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;

There was no evidence that the Gravely tractor was ever driven on a highway. On the contrary, the videotape filed into evidence demonstrated that the tractor's movements were restricted to the owner's property, except for some occasional passage on City sidewalks. I find, on a balance of probabilities, that the Gravely tractor was not operated or permitted to be operated on a "highway," as defined by the HTA. Therefore, it was not required to be insured under the CAIA. On these facts, the Gravely tractor does not qualify as an "automobile" on the basis that it was required to be insured under the CAIA.

Off-Road Vehicles Act (the "ORVA")

The ORVA regulates the operation of off-road vehicles, defined in section 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;

If the Gravely tractor in question fits within the second branch of the definition, then section 15 states:

No person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act.

However, according to subsection 15(9) of the ORVA, this provision does not apply "where the vehicle is driven on land occupied by the owner of the vehicle." At the time of the accident and at all times, other than on City sidewalks, the Gravely tractor was being driven on land occupied by the owner of the vehicle, Greenwin Property Management Inc. Therefore, the Gravely tractor was not required to be insured under the ORVA and does not qualify as an "automobile" on the basis that it was required to be insured under the ORVA.

CONCLUSION

I find that the Gravely tractor does not meet the ordinary parlance test of an "automobile." Further, it does not qualify as an automobile under an expanded definition of "automobile" in the motor vehicle liability policy or the Insurance Act. Therefore, Mr. Donovan's death did not result directly from an incident involving the use or operation of an automobile as defined in the Insurance Act.

EXPENSES:

If the parties are unable to resolve the issue of expenses, I may be spoken to.

March 15, 2000

Judith Killoran Arbitrator

Date