Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 135
FSCO A05-001372
BETWEEN:
SHAWN ASH
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: John Wilson
Heard: By written submission and telephone conference call on July 21, 2006.
Appearances:
Ric Thomson for Mr. Ash
Stephen B. Macaulay for Wawanesa Mutual Insurance Company
Issues:
The Applicant, Shawn Ash, was riding his bicycle on a Case Road in Sault Ste. Marie at about 10:00 p.m. on October 29, 2003. Given the hour, the time of year, and the absence of street lights, it would have been dark on Case Street. Although Mr. Ash wore leg reflectors to warn other vehicles of his presence, neither he nor his bicycle had lights. Mr. Ash, as well, was not wearing a bicycle helmet.
While riding southbound, Mr. Ash hit a trailer parked at the side of the road, facing in the same direction. The trailer was attached to an automobile, and carried a snowmobile and an all-terrain vehicle. He was thrown from his bicycle and suffered serious injuries.
Mr. Ash had apparently heard barking dogs prior to the contact with the trailer. As a result, he had moved closer to the centre of the roadway. Hearing a shout from an unidentified individual, he "leaned his bicycle to the right, and subsequently rode it into the rear of the trailer." He applied for accident benefits from Wawanesa Mutual Insurance Company ("Wawanesa"), payable under the Schedule.1
Wawanesa declined to pay accident benefits on the basis that "it determined that the injuries sustained by Mr. Ash were not caused by an accident as defined in Section 2(1) of the Statutory Accident Benefits Schedule."
The parties were unable to resolve their disputes through mediation, and Mr. Ash 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 issue is:
- Was Mr. Ash injured as a result of an "accident" as defined in section 2(1) of the Schedule?
Result:
- Mr. Ash was injured as a result of an "accident" as defined in section 2(1) of the Schedule.
EVIDENCE AND ANALYSIS:
This preliminary issue is being decided on the basis of an agreed statement of fact, documentary evidence and the submissions of both parties.
The issue at the heart of the dispute is not unusual in this forum. "Statutory Accident Benefits" as provided for by the Schedule potentially give access to a wide range of important benefits such as income replacement benefits, rehabilitation, medical treatment, and attendant care that may not be available to an injured person involved in an accident involving other than an automobile. Consequently, there is a tendency for insureds to view liberally the definition of a qualifying accident, while insurers, with their eyes on the bottom line, must necessarily take a restrictive approach to the availability of statutory accident benefits.
Access to benefits being a statutory right, the starting point in any analysis should be to revisit the wording of the legislative provisions themselves.
"Accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
The Schedule does not define "automobile." The Insurance Act under whose authority the regulations which make up the Schedule are issued, 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.
Neither legislation defines "use or operation".
It is important to note however that the phrase used is in the alternative. The use of "or" to join the two words suggests that either use or operation will suffice to trigger liability. In addition the rule against tautology2 would suggest that "use" and "operation" have two separate and definite meanings in this legislative context. If "use" were to mean the same as "operation" at least one of the words would be redundant, and would have not been included.
In this matter there is no question that Mr. Ash collided directly with a trailer attached to a road vehicle in a state of rest. It follows that any injuries arising from that impact would have arisen "directly" from contact with the trailer, as well as presumably contact with the ground or anything else in his way when he landed after the initial contact.
Likewise, no-one is suggesting that the bicycle was a motor vehicle. The issue is whether the trailer constituted an automobile under the Schedule and the policy of insurance, and whether its "use or operation" resulted in the accident.
In this matter, the cryptic notation on the police report that the vehicle was "parked legally" along with the remark under "Descriptions of Code(s)" "D1-drive not in safety - no light" suggests that the only infraction noted by the investigating officer was Mr. Ash's riding a bicycle after dark without lights. There appear to be none relating to the trailer or attached car.
It is possible to draw an inference from the police report that the car/trailer combination was legally on the road. No remark is made by the absence of a valid licence on the trailer.3 It was also presumably insured as a road vehicle since the report contains the details of insurance in the name of Mr. George Johnstone, who was presumably its owner.
Consequently, it is fair to draw the inference that the trailer in question was designed for, and licenced to be used on the road. It is in all likelihood exactly the sort of trailer identified by section 2(1) of the Insurance Act: one that can be included in the definition of an automobile.
The position taken by Wawanesa is that the act of parking and leaving a trailer, even one intended for use on the highway, is not necessarily "use or operation" of an automobile. On the face of it, there was no operator on board the car/trailer combination. It was not in motion. It is consequently hard to imagine that the trailer was being operated.
The key words in the Schedule are however "use or operation of an automobile (that) directly causes an impairment." I do not accept that parking an automobile and its ancillary trailer is necessarily outside the parameters of the word "use".
As Rand J. noted in Stevenson v. Reliance Petroleum Ltd.4 the phrase "use or operation" has a wide definition.
An analogous "use" as distinguished from "operation" is exemplified in the case of a bus. The undertaking in such a case includes the entrance and exit to and from the bus of passengers. If the steps are defective and a passenger is injured, could it be said that injury did not arise out of the "use"? The expression "use or operation" would or should, in my opinion convey to one reading it all accidents resulting from the ordinary and well-known activities to which automobiles are put, all accidents which the common judgement in ordinary language would attribute to the utilization of an automobile as a means of different forms of accommodation or service.
Given the date of Rand J.'s decision interpreting "use and operation" in the automotive insurance context, it is likely that the legislators used these same words in the Schedule as a term of art, or judicially defined words to give clarity to the Schedule.
A later court took Rand J.'s analysis and devised a two part test for deciding whether an accident involved the use or operation of an automobile. While the Amos5 test now has limited direct application to Ontario accident benefit law with the change of wording to the present "directly causes an impairment", the protocol established by the Supreme Court still provides a useful framework for analysis of an automotive-related incident.
Amos put forward a two-part test, involving purpose and causal link. The first part of the test is whether the incident resulted from the ordinary and well-known activities to which automobiles are put. The second (with modifications for the Ontario scheme) would be "was the relationship between the injuries of the claimant and the use or operation causal (directly causes an impairment), or was it merely incidental or fortuitous."
Labrosse J.A. in Greenhalgh6 speaking of the decision of his court in Chisholm observed:
There is good reason in favour of retaining the Amos purpose test. First, while the language of the Amos causation test clearly reflects the express legislative language in that case, the Amos purpose test is drawn by inference from that language which broadly parallels the language at stake in this case.
Labrosse J.A. went on to conclude that while the Amos purpose test applied, the Chisholm7causation test comprised the second stage of the enquiry. Essentially this was whether there was an intervening act that resulted in the injuries, or whether the use or operation was a direct cause of the injuries.8 Essentially, as noted above, it is a modification of Amos to deal with the "direct cause" wording of the Schedule.
On the first question, one need not go far to accept that parking a vehicle constitutes a normal part of the use of an automobile. Indeed, with the possible exception of taxis and long distance trucks, most automobiles spend the vast majority of their useful lives at rest, waiting to be put in motion or "operated", but still in "use", if only on standby as a road vehicle.
Other arbitration decisions have accepted that "use" may have a significantly less active sense than "operation." I note Director's Delegate Makepeace's comments in Kumar9 concerning this issue:
Arbitrator Bayefsky (in Overley and Co-Operators General Insurance Company10) held that neither the purpose test nor the chain of causation test required the vehicle to be in operation at the time of the incident.
The trailer in this matter is not at all analogous to a "tomato wagon"11 whose primary use is moving tomatoes on a farm, or an unlicenced vehicle, unintended for service on the roads.12This trailer was a vehicle whose dominant feature was venturing on the public highways. Connected to its towing vehicle and stopped, it still retained that characteristic. It was not inoperable.13
Had Mr. Johnstone (the owner of the trailer) been asked if his liability insurance covered him when his car and trailer were parked on the roadway, he would have likely stated that it would be his expectation. That is the nature of automobile insurance. It covers activities relating to road vehicles.
In Copley et al. v. Kerr Farms Limited, Doherty J.A. commented:
Mr. Copley's transport truck was clearly a motor vehicle as defined in the Compulsory Automobile Insurance Act. The tomato wagon was not, however, fully attached to the transport truck when the accident occurred. It could not be drawn by the transport truck and was not under the power and control of the truck. Consequently, it was not a trailer "of a motor vehicle" within the meaning of the Compulsory Automobile Insurance Act when the accident happened.14
The logical corollary of this would be that a trailer properly attached to a Buick motor vehicle, and parked on a public road, would constitute a trailer of a motor vehicle.
Indeed Mr. Johnstone would have been in breach of the Compulsory Automobile Insurance Act if he did not obtain motor vehicle insurance for his car/trailer unit the moment that he took it on the road. It had to be driven on the road to be parked there. Even once parked it still had to be insured as a motor vehicle.15 In addition his household insurance would likely decline to indemnify him for any losses related to the use of the trailer, precisely because it was a road vehicle.
The reasonable expectations of Mr. Johnstone and his automobile insurer when they contracted for insurance on his vehicles, would be that the vehicles were covered as road vehicles whether they were parked or in operation. To say that those road vehicles take on a different character when they are in collision with a bicycle is a bit odd.
I note as well, that the fact that Mr. Ash was riding a bicycle is of no import in this matter, provided that his injuries arose from his unexpected contact with an "automobile". Had he even been a pedestrian in collision with a parked vehicle, the injuries may have been of a different scale, but the potential liability for accident benefits under the Schedule would remain. Liability requires at least one actor in the incident to have been in an "automobile" within the category of operation or normal usage. In this case that would be the trailer, with which Mr. Ash had the misfortune of colliding.
Counsel for Wawanesa has made much of Mr. Ash's account of responding to the sound of barking dogs, and a voice shouting. It is hard however to conceive of these as intervening acts. They may have played some small role in Mr. Ash being positioned to hit the parked trailer. He may well have altered course slightly in response to these stimuli.
From a strictly chronological viewpoint they could not be intervening acts. They happened before Mr. Ash was in contact with the automobile. They did not occur between the contact and the injuries that arose from that contact. Patently, there was no intervening act sufficient to break the chain of causation between the collision and the injuries.
Likewise Mr. Ash's oversight in riding a bicycle after dark without lights does not take away from his right to access accident benefits. While it may have been a contributing cause to the accident, as may have been the barking dog, and the unknown person shouting, the dominant and direct cause of his injuries was the unintended contact with the parked trailer.
I find, therefore, that Mr. Ash was involved in an accident as defined by section 2(1) of the Schedule.
EXPENSES:
I exercise my discretion to award Mr. Ash his expenses incurred in this preliminary issue hearing. If the parties are unable to agree on the amount of the expenses, I may be spoken to.
August 11, 2006
John Wilson
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2006 ONFSCDRS 135
FSCO A05-001372
BETWEEN:
SHAWN ASH
Applicant
and
WAWANESA MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Ash was injured as a result of an "accident" as defined in section 2(1) of the Schedule.
I award Mr. Ash his expenses incurred in this preliminary issue hearing. If the parties are unable to agree on the amount of the expenses, I may be spoken to.
August 11, 2006
John Wilson
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
- Sullivan, Ruth - Sullivan and Driedger on the Construction of Statutes, Fourth Edition by Ruth Sullivan
- Indeed under "trailer" on the form, a licence number is listed, presumably a valid road permit for the trailer.
- Stevenson v. Reliance Petroleum Ltd., 1956 CanLII 27 (SCC), [1956] S.C.R. 936
- Amos v. Insurance Corporation of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405
- Greenhalgh v. ING Halifax Insurance Company, 12 O.R. (3d) 338 CA
- Chisholm v. Liberty Mutual Group (2002), 60 O.R. (3d) 116 CA
- Laskin J.A. in Chisholm referred to "direct causation" as being reminiscent of the case of Re Polemis and Furness., Withy & Company [1921] All E.R. Rep. 40, [1921] 3 K.B. 560 a decision by the English Court of Appeal. Although framed in negligence, the case found clearly that a party could be held responsible for even a remote, unforeseen event, provided that the loss was the direct consequence of the negligent act.
- Kumar and Coachman Insurance Company, (FSCO P01-00026, August 9, 2002) Appeal Order
- Referring to Overley and Co-operators General Insurance Company, (OIC A-015623, April 3, 1996)
- Copley et al. v. Kerr Farms Limited, 2002 CanLII 44900 (ON CA), 59 O.R. (3d) 346 C.A.
- Pinto v. Allstate Insurance Company of Canada [2002] O.J. 2741 Ontario Supreme Court; Beacham v. Sheils [1981] O.J. Ontario Supreme Court, Regele v. Slusarczyk 33 O.R. (3d) 566 C.A.
- Wiiliams v. Di-Carlo [2006] O.J. No. 1415 Div. Ct.
- Copley et al. v. Kerr Farms, 59 O.R. 3d. 346 C.A.
- White J. In Faria v. Ferreira 1995 CanLII 10632 (ON CTGD), 22 O.R. (3d) 737 Div. Ct. stated: "It is my opinion that, having regard to the mischief and objects and policy related to both the Compulsory Automobile Insurance statute and the Insurance statute that the plaintiff's motor vehicle was a motor vehicle that was required to be insured in its parked position, having regard to s. 2(1) of the Compulsory Automobile Insurance Act."