Neutral Citation: 2004 ONFSCDRS 27
FSCO A03-000919
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
DAVID KILLAM
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Catherine Skinner
Heard:
December 23, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Patrick Lennon for Mr. Killam
Matt Duffy for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, David Killam, was injured in an incident on August 19, 2002. State Farm Mutual Automobile Insurance Company ("State Farm") denied payment of accident benefits on the basis that Mr. Killam was not involved in an accident as that term is defined in the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mr. Killam applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issues are:
Was Mr. Killam injured as a result of an "accident" as defined in section 2(1) of the Schedule?
If Mr. Killam was injured as a result of an accident, as defined, is he excluded from entitlement to weekly benefits pursuant to paragraph 30(1)(b) of the Schedule on the basis that he was driving a motor vehicle without a valid driver's licence?
Result:
Mr. Killam was injured as a result of an "accident" as defined in section 2(1) of the Schedule.
Mr. Killam is not excluded from entitlement to weekly benefits pursuant to paragraph 30(1)(b) of the Schedule on the basis that he was driving a motor vehicle without a valid driver's licence.
EVIDENCE AND ANALYSIS:
Facts:
My findings of fact are based on the evidence set out in the four transcribed statements given to State Farm by Sanjev Kapur, who gave two statements, David Killam and Kevin Rachette. These transcribed statements are found in Exhibit 1. No viva voce evidence was tendered at the arbitration hearing.
On August 19, 2002, David Killam was injured when eight to ten heavy windows fell on him as they were being unloaded from a flat bed trailer. Sanjev Kapur, who shared a residence with Mr. Killam, had arrived home with a load of windows secured on a trailer which was attached to a half ton truck. Mr. Kapur had purchased the windows in Toronto and had driven the truck and trailer back to Brantford, where he lived. Mr. Killam had not accompanied Mr. Kapur on the trip to Toronto, but was at the residence in Brantford when Mr. Kapur returned. Mr. Kapur asked Mr. Killam to back the truck and trailer from the street into the driveway because of his experience driving large trucks. Mr. Killam reversed the truck and trailer into the driveway. It is agreed that Mr. Killam was not in possession of a valid driver's license on August 19, 2002.
The windows are described as being 4 feet by 6 feet, weighing between 100 and 130 pounds each. They were packed into special moving cartons, secured on the top and bottom by boards, and secured to the trailer with ropes.
The trailer is described as a home-made, flat landscape style trailer. It was approximately six feet by ten feet and approximately two feet off the ground. There was a metal railing around the perimeter of the trailer which was approximately two feet in height.
Once the truck and trailer were backed into the driveway, Mr. Kapur, his stepson Kevin Rachette and Mr. Rachette's friend Steven, undid the ropes that secured the windows and began unloading the windows. Mr. Kapur stood on the trailer steadying the windows while Mr. Rachette and Steven unloaded them from the trailer, using specially designed suction cups. The windows were removed from the trailer one at a time. After two windows had been unloaded from the trailer,