Wilhelmina Margaret Buckle v. Motor Vehicle Accident Claims Fund, 2011 ONFSCDRS 14

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 14

FSCO A10-000010

BETWEEN:

WILHELMINA MARGARET BUCKLE

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Robert A. Kominar

Heard: July 30, 2010 at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Douglas O'Toole for Mrs. Buckle

Janis P. Criger for Motor Vehicle Accident Claims Fund

Issues:

The Applicant, Wilhelmina Margaret Buckle, was injured in an incident involving a golf cart on June 14, 2003. She applied for and was denied statutory accident benefits from the Motor Vehicle Accident Claims Fund (“MVAC Fund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mrs. Buckle 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 Mrs. Buckle injured as a result of an “accident” as defined in section 2(1) of the Schedule?

Result:

Mrs. Buckle was involved in a motor vehicle accident.

EVIDENCE AND ANALYSIS:

The parties have agreed that the following facts underlie this Application for a determination as to whether Mrs. Buckle’s claims for statutory accident benefits move forward to arbitration on the merits.

On June 14, 2003, Mrs. Buckle was being transported as a passenger on a conveyance which both parties agree is accurately described as a motorized golf cart when an accident occurred. The golf cart, at the time of the accident, was being operated on a public highway. As such, it was illegally being operated on the highway and it was neither licensed nor registered, nor as far as the parties know, insured. Beyond this, the golf cart was not merely crossing the road, as golf carts are commonly known to do in the proximity of golf courses, it was actually driving down the road as other vehicles might. At some point during the golf cart’s trip down a public highway Mrs. Buckle fell off the golf cart and sustained quite serious injuries. There was no other vehicle involved in the accident. The golf cart in question was later determined to have been owned by Earl Malda and/or Peter Malda. It had commenced its journey from a residence owned by one of the Maldas, where Mrs. Buckle was at the time staying as an invited guest. At the time of the accident Mrs. Buckle was not insured under a policy of automobile insurance. She did not own a car, nor was she the spouse of anyone who had coverage under an automobile policy. She was not named as a driver on any automobile policy. The parties believe that, at the time of the accident, Earl Malda was likely insured under an automobile policy issued by Pilot Insurance Company (“Pilot”).

Prior to hearing this preliminary issue motion, I was requested by counsel for both Mrs. Buckle and MVAC Fund to invite Pilot, whom they had reason to believe was Mr. Malda’s automobile insurer at the time, to participate in this hearing in some intervenor capacity, as there are other legal proceedings pending as a result of this accident. Both the Applicant and MVAC Fund believe that it would have been useful to have all interested parties make submissions on the question in issue here in one forum, to preclude, among other things, the possibility of divergent decisions and protracted and expensive proceedings. I did write to Pilot advising them of the nature of the matter before me and invited them to participate if they wished to. However, Pilot did not respond to the request that they participate in the arbitration and so the matter must be decided based solely on the submissions made on behalf of Mrs. Buckle and MVAC Fund.

Given that the parties have stipulated the relevant facts, the only issue to determine is whether the golf cart incident described above was a motor vehicle accident attracting the coverage available under the Statutory Accident Benefit Schedule provisions of the Insurance Act. As such, this becomes purely an exercise in statutory interpretation. As judges and arbitrators have often noted however, it is not a simple or straightforward exercise to interpret automobile accident law. In this case, the complexity arises out of the need to consider a number of different statutes and regulations that may have a bearing on the final decision.

The Supreme Court of Canada has provided general guidelines for the interpretive process. In Ontario (Minister of Finance) v. Placer Dome Canada Limited², Mr. Justice Lebel states at paragraphs 21-23:

Where the words of a statute are precise and unequivocal, those words will play a dominant role in the interpretive process.... On the other hand, where the words of a statute give rise to more than one reasonable interpretation, the ordinary meaning of words will play a lesser role, and greater recourse to the context and purpose of the Act may be necessary.... Where, as in this case, the provision admits of more than one reasonable interpretation, greater emphasis must be placed on the context, scheme and purpose of the Act. Thus legislative purpose may not be used to supplant clear statutory language, but to arrive at the most plausible interpretation of an ambiguous statutory provision.

The guidelines on the surface seem to be very linear and straightforward. But complexity expands as one is required to weave together the meanings of multiple, interacting legislative and regulatory provisions. It is well known that in the common law tradition legislation has not necessarily been drafted with the view of creating a complete and consistent logical code. One can find challenging discord while searching for semantic harmony in the interpretive process.

For Mrs. Buckle to be entitled to claim statutory accident benefits, she has to satisfy on the civil burden of proof, that in falling off the golf cart as it was being driven down a public highway she was in an automobile accident.

A number of statutory provisions need to be considered here.

The Insurance Act provides a definition of “automobile”:

“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.

However, there is another definition of “automobile” in the Insurance Act, in Part VI which deals explicitly with automobile insurance. Section 224(1) provides:

(1) In this Part,

“automobile” includes,

(a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and

(b) a vehicle prescribed by regulation to be an automobile.

The first question that arises is which definition of “automobile” one should work with in this case. In Morton et al. v. Rabito et al.³, Justice Morden of the Ontario Court of Appeal stated:

The operative definition is in s. 224(1) and not s. 1. It is specifically applicable to Part VI and the special provisions that affect no-fault insurance.... This is a case where the specific should override the general. It is clear that s. 224. (1) was intended by the legislature to provide a definition of automobile for the purposes of Part VI. It incorporates by reference the definition of “automobile” in the Highway Traffic Act....

It is not argued by the Applicant that the golf cart falls under any regulation which prescribes it to be an automobile pursuant to section 224(1)(b). And thus the sole residual question is whether a golf cart being driven on a highway is required to be insured under a motor vehicle liability policy in Ontario.

To answer this question one needs to turn to the Compulsory Automobile Insurance Act.⁴ Section 1(1) of this Act stipulates that:

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

This Act further states:

(1) Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle to be operated, on a highway unless the motor vehicle is insured under a contract of automobile insurance.

Section 1(1) of the Highway Traffic Act⁵ defines “motor vehicle” as follows:

“motor vehicle” includes an automobile, a motorcycle, a 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 vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine. [emphasis added]

To summarize thus far, the operative definition of “automobile” for the situation in this arbitration is found in section 224(1) of the Insurance Act. Whether a vehicle is required to be insured is determined by the Compulsory Automobile Insurance Act, which speaks of “motor vehicles” not specifically “automobiles.” This Act incorporates by reference the definition of “motor vehicles” which must be insured from the Highway Traffic Act. This statute specifies that “automobile” is a sub-class of “motor vehicles” and thus it is conceptually possible that conveyances other than those clearly recognizable as “automobiles” may be required to carry “automobile insurance” in Ontario.

Specifically significant to this case, Mrs. Buckle argues, is the clause providing that a motor vehicle encompasses “any other vehicle propelled or driven otherwise than by muscular power.”

So far in the analysis there has been no specific reference to “golf carts.” However, that class of conveyance is mentioned in the Off-Road Vehicles Act.⁶ This Act provides that:

(1) This Act does not apply in respect of off-road vehicles being operated on a highway.

One exception to this general provision is that vehicles covered in section 2(2) of this Act may be driven “across” a highway.⁷ In addition, in section 2(3) certain vehicles are declared in section 3 to be exempt from the Act’s provisions, including a number of vehicles “designated by regulation.” The Regulation⁸ made under the Act states in relevant part:

(1) The following are designated as classes of vehicles that are exempt from the provisions of the Act and this Regulation:
Golf carts. …

Therefore, the ultimate question to be answered is: how do golf carts fit within this maze of statutory provisions?

Further guidance on how to approach the interpretation challenge is set out in a three-part test approved by the Ontario Court of Appeal in Adams v. Pineland Amusements Ltd. et al.⁹ An adjudicator must ask:

(i) Is the vehicle an “automobile” in ordinary parlance?

If not, then,

(ii) Is the vehicle defined as an “automobile” in the wording of the insurance policy?

If not, then,

(iii) Does the vehicle fall within any enlarged definition of “automobile” in any relevant statute?

Mrs. Buckle concedes that she cannot establish that a golf cart is an “automobile” in ordinary parlance, or that there is a policy of insurance in effect which would clearly cover golf carts.¹⁰ Therefore, she concedes that she must demonstrate, on a balance of probabilities, that a golf cart plausibly falls under an “enlarged definition” in another relevant statute.

Her argument essentially is that the Highway Traffic Act is the source of the requisite enlarged definition when it speaks of “and any other vehicle propelled or driven otherwise than by muscular power.” When one combines the definition of “motor vehicle” found in the Highway Traffic Act with the provisions of the Compulsory Automobile Insurance Act, Mrs. Buckle argues, the only logical inference to be drawn is that a golf cart, being a vehicle powered other than by muscular power, and not being one of the exclusions also found in that definition section, cannot operate on a highway unless it is covered by a policy of insurance.

The salient point is not that golf carts are always required to be insured, but, when they operate “on a highway”, as the golf cart admittedly was in this case, they are. Conjoining this conclusion with section 224 of the Insurance Act results in a necessary inference that a golf cart, being driven on a highway, is an automobile for the purposes of automobile insurance in Part VI of the Insurance Act and therefore statutory accident benefits.

According to Mrs. Buckle, this is the plain meaning of all of these statutory provisions. She further argues that they do not give rise to any significant ambiguity and therefore, under the reasoning in Placer Dome, do not require any further interpretation according to the purposes of the statutory scheme. The unambiguous wording of the statutes must be allowed to prevail.

Another point which Mrs. Buckle raised was the fact that the Regulation under the Off-Road Vehicles Act does explicitly reference golf carts, even if only by exempting them from regulation by that Act, that the legislature was aware of golf carts as a specific class of conveyance and that if it intended to treat them differently than other vehicles defined by the Highway Traffic Act, it easily could and would have.

MVAC Fund argues, contrary to the above, that the relevant statutory “scheme” is simpler than Mrs. Buckle claims. The Off-Road Vehicles Act also provides:

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

In addition, there is a Regulation made under the Highway Traffic Act¹¹ requiring off-road vehicles to be insured in situations where they are permitted to be on highways.

But, as noted above, section 2(1) of the Off-Road Vehicles Act explicitly exempts golf carts from the provisions of the Act and its Regulation. It exempts golf carts along with certain other types of conveyances including road-building machinery, farm machinery and motorized wheelchairs.

MVAC Fund’s position is that the explicit exemption of golf carts from a statute that otherwise requires off-road vehicles to be insured ends the inquiry and resolves the issue. The explicit exemption of golf carts in the regulation indicates that the legislature clearly intended that the insurance requirement would not apply to golf carts and therefore, logically, this exemption would imply that a golf cart is not a vehicle contemplated by the provision of section 224(1) of the Insurance Act which speaks of a “motor vehicle required under any Act to be insured under a motor vehicle liability policy.” [emphasis added] In essence, MVAC Fund’s argument is that golf carts, due to the explicit exemption in the Off-Road Vehicles Act and Regulation, an Act where one might naturally expect golf carts to be dealt with, as their typical locus of use is not on highways, are not contemplated at all in the statutory scheme dealing with automobile insurance.

Counsel on both sides acknowledge that they are articulating two distinct views of how to combine the pieces of this legislative jigsaw puzzle into a coherent picture.

The real question is − which of these two interpretive lenses is the most plausible? Both counsel concede that neither interpretation put forward is completely implausible.

Mrs. Buckle’s reading of the legislation is that there is a statutory scheme in Ontario to regulate ground transportation vehicles. It is bifurcated into legislation that regulates travel of certain classes of vehicles “on highways” and “off highways.” The Highway Traffic Act generally regulates such activity when it occurs on public highways. The Off-Road Vehicles Act in turn regulates the activity in other loci. Together these statutes form a complete system of regulating “motor vehicle” activity and, not coincidentally, both share a common definition of what a motor vehicle is.

Since the Off-Road Vehicles Act specifically places golf carts beyond its regulatory reach, golf carts must, due to an exclusive disjunction, be governed by the provisions of the Highway Traffic Act when they drive on highways; since they fit within its definition of what a motor vehicle is and are not explicitly exempted from regulation. This conclusion follows, Mrs. Buckle argues, irrespective of the common sense acknowledgement that golf carts are really not intended to be driven on highways at all. In addition, notwithstanding that the Off-Road Vehicles Act exempts golf carts from its regulatory requirements, it does not purport to do so on the basis that golf carts are not motor vehicles as defined by the Highway Traffic Act. In fact, one has to wonder why the effort was taken by the legislature to exempt golf carts in the first place if they were not, prima facie, conveyances that might reasonably be expected to have been included in the Act’s regulatory scheme. That being said, it remains unclear as to what the specific policy reason was for the exemption of golf carts.

MVAC Fund’s position is that the explicit exemption for golf carts in the Off-Road Vehicles Act does not lead to a necessary inference that golf carts are captured by the definition of “motor vehicle” in the Highway Traffic Act, as that statute is quite clearly only intended to deal with conveyances that travel on highways, which golf carts are not. Therefore, the specific exemption of golf carts in the Off-Road Vehicles Act must be read as expressing the legislature’s intention to leave golf carts completely unregulated. Common sense tells us that golf carts are not intended to operate on highways, thus the definition of “motor vehicle” in the Highway Traffic Act should not be taken to apply to them at all. The Off-Road Vehicles Act explicitly exempts golf carts from its regulatory scheme even though that is the place one would expect to find golf carts regulated, if anywhere, in Ontario law. Thus, MVAC Fund argues, the only compelling inference is that golf carts are not regulated and therefore are not motor vehicles that are required to have automobile insurance and therefore Mrs. Buckle’s accident was not an automobile accident for purposes of the Insurance Act and the Statutory Accident Benefit Schedule.

Faced with these two disparate interpretations it is necessary to decide between them.

Placer Dome mandates that inquiries into legislative purpose only be entered into when the legislative language is “precise and unequivocal.” I find that there is no imprecision in language or equivocation in the statutory and regulatory provisions involved here. Although there is a fairly complex, nested chain of references to various statutes and regulations, when sorted out their meaning is clear.

Even though no specific submissions were made on the point, I find that it is appropriate to take notice of the fact that a golf cart is a “vehicle propelled or driven otherwise than by muscular power.” As such, a golf cart, being driven down a highway, as opposed to simply crossing a highway, is covered by the definition of “motor vehicle” in the Highway Traffic Act. The Compulsory Automobile Insurance Act incorporates by reference the Highway Traffic Act’s definition of “motor vehicle.” Section 2(1) of the Compulsory Automobile Insurance Act requires that all motor vehicles shall be insured by a policy of automobile insurance when operating on a highway. Section 224(1) of the Insurance Act provides that an automobile, for the purposes of automobile insurance, is any motor vehicle required to be insured by a policy of automobile insurance by any Act. By inference, a golf cart being driven on a highway would be required to have automobile insurance according to the Compulsory Automobile Insurance Act.

I do not agree with MVAC Fund’s submission that the exemption of golf carts found in the Off-Road Vehicles Act can be read so broadly as to say that golf carts are completely unregulated modes of conveyance. The Off-Road Vehicles Act in essence deals with various classes of vehicles operating, not on the property of the person who owns them, and not on highways, but on the property of others. Golf carts, from a common sense point of view, are intended to be operated on golf courses and nowhere else. They were not intended to be driven on highways. I note that other classes of exempted vehicles in the Off-Road Vehicles Act are the types of conveyances that have very specific purposes that one would expect to find in only certain situations. For instance, road-building equipment is generally hauled to a construction site and then only works within small areas that are often closed off from access to others. Farm equipment generally travels on highways only to get from one farm location to another. Motorized wheelchairs are not typically seen being driven down public roads.

Even though the legislature deemed it appropriate not to regulate the activities of certain classes of vehicles, including golf carts, when they are operating on property other than highways, it does not follow that “if” those conveyances choose to venture out, illegally, onto highways, that they are also exempt from the insurance requirements which other “motor vehicles” would be subject to in that situation. In fact, it is important to recall that the second part of the test in Adams v. Pineland contemplates that an automobile insurance policy “might” have a definition of “automobile” broad enough to cover golf carts on highways.¹² Thus, it is not the case that a golf cart “cannot” be a motor vehicle covered by an automobile liability policy.

If I am wrong about the language being clear and unequivocal, then I further find that the statutory scheme here consists of the Insurance Act, the Compulsory Automobile Insurance Act and the Highway Traffic Act, along with their associated regulations. The general purposes of this legislation are to provide for safety on the highways and to allocate risk when injuries occur. If golf carts never drove on highways this case would not be before me. The fact that the golf cart ought not to have been on the highway is not the point. Mrs. Buckle was injured in an accident which involved what I have found to be a motor vehicle that was required to have been insured in the circumstances it was in if it was to have been operating legally. Therefore, she was involved in an automobile accident and is entitled to claim statutory accident benefits.

So we are left with the question as to whether golf carts are contemplated by the broad definition of motor vehicles, travelling on highways, because they are propelled other than by muscular power.

The Off-Road Vehicles Act says it does not apply to vehicles operating on a highway. But then the Regulation goes on to further state that the Act does exempt golf carts from its scope. Clearly, golf carts are not regulated by the Off-Road Vehicles Act. Nothing can be clearer than the explicit exemption for them. But that also means that golf carts are not subject to the provision that states that the Act does not apply to off-road vehicles being driven on highways. So, does the exemption in this statute from having motor vehicle insurance apply so broadly as to conclude that for all purposes golf carts are not required to have insurance? That is MVAC Fund’s position.

Mrs. Buckle, on the other hand, argues that the Regulation exempts golf carts from the requirements of an Act that explicitly does not apply to them. In other words, the Off-Road Vehicles Act is irrelevant. Even if it was relevant it only applies when not driving on a public highway, which is not the case here.

Thus, Mrs. Buckle argues that the statutory scheme relevant here is that involving the Insurance Act, the Compulsory Automobile Insurance Act and the Highway Traffic Act. Since those statutes do not exclude golf carts, or carry any language that plausibly suggests that golf carts should not be included, they must be. Mrs. Buckle argued that one should not read exclusions into the scheme, particularly when the overall purpose of these statutes is to provide safety on the highways and to allocate risk in case of accidents.

It is unclear exactly why golf carts were exempted from the Off-Road Vehicles Act. Other vehicles exempted include road-building and farm equipment, which clearly travel on highways, and motorized wheelchairs, which, one assumes, do not often travel on highways.

Mrs. Buckle argues that the exemption in the Off-Road Vehicles Act simply means that exempted vehicles do not need to have insurance or be licensed. The exemption does not mean that their essential nature as motor vehicles is changed.

Thus, Mrs. Buckle’s argument is that, absent the complication of the Off-Road Vehicles Act, the rest of the statutory scheme implies that golf carts, when driven on the road, are required to have insurance and therefore are covered. I agree. The fact that this golf cart did not have insurance is irrelevant; the question is − was it a motor vehicle that ought to have had insurance in the particular circumstances? Even if the Off-Road Vehicles Act applied, it would only do so in cases when the vehicle was operating on property other than that of the owner of the vehicle.

EXPENSES:

I exercise my discretion to award Mrs. Buckle her expenses incurred in this preliminary issue hearing.

February 3, 2011

Robert A. Kominar Arbitrator

Date