Financial Services Commission des

Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 76

FSCO A10-002609

BETWEEN:

JOHN EARL OLESIUK

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Richard Feldman

Heard: July 5 and 6, 2011, in Niagara Falls, Ontario

Appearances: Margaret A. Hoy for Mr. Olesiuk Stanley C. Tessis for Kingsway General Insurance Company

Issues:

The Applicant, John Earl Olesiuk, was injured in an incident on October 24, 2008. He applied for statutory accident benefits from Kingsway General Insurance Company (“Kingsway”), payable under the Schedule.¹ Disputes arose between the parties concerning Mr. Olesiuk’s entitlement to the accident benefits he claimed. The parties were unable to resolve their disputes through mediation, and Mr. Olesiuk applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Amongst other disputes, the Insurer takes the position that Mr. Olesiuk’s injuries did not result from an “accident” as that term is defined in section 2(1) of the Schedule (as it read at the relevant time). A preliminary issue hearing was conducted by me on July 5 and 6, 2011 to deal exclusively with this issue.

The preliminary issue is:

1. Was Mr. Olesiuk involved on or about October 24, 2008 in an “accident” as defined in the Schedule?

Result:

1. Mr. Olesiuk was not involved on or about October 24, 2008 in an “accident” as defined in the Schedule.

EVIDENCE AND ANALYSIS:

Facts

The only evidence on this issue was presented by the Applicant and consisted of his testimony, the testimony of his wife, a copy of the Welland Hospital Emergency Department Chart² dated October 25, 2008 (Ex. 1) and a copy of clinical notes and records from Dr. Alphie Pallen, psychiatrist (Ex. 2). The Insurer introduced no evidence. Thus, subject to questions put to the witnesses in cross-examination, the evidence presented on behalf of the Applicant was essentially unchallenged and the facts are really not in dispute (although there is a dispute over the inferences I am being asked to draw from those uncontested facts). The relevant facts, as I find them, follow.

At the time of the accident, Mr. Olesiuk was 56 years old. A few years earlier, Mr. Olesiuk retired after working for CP Rail for about 30 years, doing general track maintenance. After retiring from CP Rail, Mr. Olesiuk picked up a job driving a large truck for Hilltop Water (a business run by Charlie and Shelley Vaughan), delivering drinking water. The truck belonged to the company and it was stored in a garage at the home of the Vaughan’s. When Mr. Olesiuk was working as a driver, his compensation was based on a percentage of the gross charge for the water he delivered.

During October 2008, however, Mr. Olesiuk did no driving for Hilltop Water because the truck he normally drove for Hilltop Water was inoperable. It had been in an accident (when operated by a different driver) and the transmission was not working properly. While waiting for the transmission to be repaired, the Vaughan’s decided to have body work done to the vehicle to repair some of the damage that resulted from the recent accident. Since Mr. Olesiuk was not earning any income as a driver, he was asked by the Vaughan’s if he would be willing to do some body work on the truck (sanding and so forth) in order to get it ready for re-painting. Mr. Olesiuk had done such work once before for Hilltop Water. Mr. Olesiuk was offered $10 per hour for this work, which was to take place at the garage in which the truck was stored (at the home of the Vaughan’s). Mr. Olesiuk agreed and his work on the vehicle was to commence on October 24, 2008.

On October 24, 2008, Mr. Olesiuk started working on the body of the truck at around 10:00 a.m. He worked all day long and into the night. He took a short break and went to his home (which is near that of the Vaughan’s) around 5:00 p.m. and then returned to work on the vehicle about an hour later. Around 10:00 p.m., Charlie Vaughan said “good night” to Mr. Olesiuk at the garage and then retired to his home. Mr. Olesiuk climbed onto the hood of the truck so that he could reach the roof of the cab. He only had a little more work to do on the roof of the cab which he expected to complete quickly and then go home to bed. Mr. Olesiuk’s last memory from the night of October 24, 2008 is standing on the hood of the truck, working on the roof of the cab. Mr. Olesiuk’s next memory is waking up several days later in a hospital in Toronto.

Mr. Olesiuk was found around 6:00 a.m. on the morning of October 25, 2008, lying on the concrete floor of the garage, next to the truck, in a pool of blood. Neither Mr. Olesiuk nor Mrs. Olesiuk know exactly where Mr. Olesiuk was found or how the scene appeared when Mr. Olesiuk was first discovered. Mr. Olesiuk cannot recall anything until several days later. Mrs. Olesiuk did attend the scene of the incident but, by the time she arrived, Mr. Olesiuk had already been moved and, for obvious reasons, she was focusing on the condition of her husband, not on the location of objects in the garage. She does recall seeing a pool of blood on the floor near, and perhaps a bit forward of, the passenger-side door (i.e., near the cab of the truck, on the passenger side).

According to Mr. Olesiuk and his wife, Mr. Olesiuk suffered serious injuries, including a brain injury, a shattered right ear drum, a broken right clavicle, three or four broken ribs and a fracture of his right shoulder blade.

The Emergency Department records from Welland Hospital state as follows:

Pt brought by EMS. Presumably fell off a height of 6 feet (most likely of [sic] the top of his truck). Found on the floor @ 6 a.m. in pain. Last seen @ 22:00 last night. Pt found in a closed environment (garage).

The notes of Dr. Pallen states, “… he [Mr. Olesiuk] fell down off the truck and had head injuries.”

No one actually witnessed the incident, however, and Mr. Olesiuk was unable to speak for several days. When he was conscious and able to communicate, Mr. Olesiuk had (and continues to have) no recollection of how his injuries were sustained. Thus, whoever completed the Welland Hospital Emergency Record was guessing what happened based upon information provided by others (possibly the EMS crew), who also did not actually witness the incident. Similarly, it is unknown where Dr. Pallen obtained his information as to what occurred on October 24, 2008 but it is obvious that Dr. Pallen is relying on information provided to him by Mr. Olesiuk or by others.

Only “Accidents” Covered

To be able to claim statutory accident benefits, a person must have been involved in an “accident” (i.e., a motor vehicle accident), as that term is defined in the Schedule. Thus, for Mr. Olesiuk to be entitled to any accident benefits, he must prove that he was involved in an “accident”. “Accident” is defined in the Schedule as “an incident in which the use or operation of an automobile directly causes an impairment …” The Insurer does not dispute that the term “automobile” includes the truck in question. The real question in this case is whether the Applicant has proven, on a balance of probabilities, that his injuries and impairments were caused directly by the use or operation of the vehicle in question.

Arguments on behalf of the Applicant

Based upon the fact that Mr. Olesiuk’s last memory was of standing on the hood of the truck, it is argued that, on a balance of probabilities, he fell from the hood onto the floor, thereby suffering serious injuries. He was repairing the truck at the time. It is argued that repairing a vehicle is part of the ordinary use of a vehicle. He was using the hood of the vehicle to stand upon in order to affect repairs to the roof of the cab. Therefore, it is submitted, Mr. Olesiuk’s injuries directly resulted from the use of a motor vehicle.

Arguments on behalf of the Insurer

The Insurer argues as follows:

1. As a general proposition, repairs such as this are not part of the use of an automobile and impairments that result from such repairs ought not to be covered under standard automobile insurance policies;

2. In the alternative, on the facts of this case, this repair did not constitute a use of truck;

3. In the further alternative, on the facts of this particular case, the Applicant has failed to prove, on a balance of probabilities, that his impairments were caused directly by the use or operation of this vehicle because:

a. The Applicant has not actually proven that his injuries resulted from a fall from the truck; and

b. Even if I find that Mr. Olesiuk fell from the truck, the fall is an intervening event and the Applicant’s injuries were caused by the fall, not by his use of the truck.

Analysis

How did these injuries occur?

The burden of proof rests upon the Applicant. He need only prove his case on a balance of probabilities. While there are some gaps in his evidence, I am entitled to draw reasonable inferences from the evidence presented and the application of the law does not, in my view, preclude the use of common sense.

Based upon the Applicant’s last memory on the night of incident, the location where he was found the next morning, the extent of his injuries and the absence of any evidence to the contrary, I find that the Applicant has proven on a balance of probabilities that his injuries were sustained when he fell off the hood of the truck and that his reason for being on the hood was to effect repairs to the truck.

“Use” of the Vehicle

Neither party is arguing in this case that Mr. Olesiuk’s injuries resulted from the operation of a vehicle. The dispute is, in part, over whether repairs to a vehicle can be included in the term “use” of the vehicle.

To help interpret the term “the use … of an automobile”, Applicant’s counsel makes reference to the definition of “use” in Black’s Law Dictionary: “To make use of, to convert to one’s service, to avail one’s self of, to employ.” I do not find this to be very helpful. Applicant’s counsel also made reference to a number of tort cases arising under provisions of the Highway Traffic Act in which liability turned upon a finding of whether loss or damage was “occasioned by a motor vehicle”. Again, given the different wording and context, I find these cases to be of little assistance.

Of greater assistance is the case of Amos v. Insurance Corp. of British Columbia (“Amos”).³ In Amos, a driver was shot in an attempted hijacking of his van. In the context of a no-fault accident benefit scheme, the Supreme Court of Canada was called upon to determine whether the driver’s injuries were “caused by an accident that arises out of the ownership, use or operation of a vehicle”. A previous version of the British Columbia legislation under consideration extended coverage only to those whose injuries were caused by an accident that arose out of the operation of a vehicle. The Supreme Court was therefore convinced that the addition of the terms “use” and “ownership” signalled a legislative intent to expand the scope of coverage. The Supreme Court also stressed that coverage provisions in insurance policies ought to be construed widely, in favour of insured persons (whereas exclusionary and limitation provisions ought to be construed narrowly). The Court recommended a common sense, purposive approach rather than a narrow, technical interpretation. The Court created a two-part test:

1. Did the accident result from the ordinary and well-known activities to which automobiles are put (the purposive test)? and, if so,

2. Was the relationship between the appellant’s injuries and the ownership, use or operation of his vehicle, causal or was it merely incidental or fortuitous?

Of course, care should be taken in applying the Amos test to modern no-fault cases in Ontario (like the one currently before me) for the following reasons:

1. The language of the British Columbia statute under consideration in Amos is more inclusive than the relevant provisions of the Schedule in Ontario (i.e., the B.C. statute includes injuries related to ownership as well as use or operation); and

2. The causation threshold is set lower in British Columbia. The Supreme Court acknowledges that the words “arising out of” have been viewed as words of much broader significance than “caused by”. Also, in Amos it was held that, under the British Columbia legislation, causation need not be direct or proximate; in Ontario, the use or operation of an automobile must be the direct cause of an impairment.

In Vytlingam (Litigation Guardian of) v. Farmer (“Vytlingam”),⁴ the Supreme Court of Canada revisited the test set out in Amos and concluded that the first part of the test (the purpose test) was merely meant to screen out injuries that resulted when a vehicle was put to a use for which it was not intended (like a diving platform or as an explosive device) or where, at the relevant time, the vehicle was not being used as a vehicle. According to the Supreme Court of Canada, in most cases, the real issue will be that of causation and, in at-fault (tort) cases, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made.

In Vytlingam (at para. 21), the Supreme Court makes reference to a repair case that arose from the Alberta Court of Queen’s Bench: Continental Stress Relieving Services Ltd. v. Canda West Insurance Co. of Canada (“Continental”).⁵

In Continental, damage was caused by a vehicle repairman whose careless use of a cutting torch caused gasoline fumes to ignite damaging the building and disrupting the businesses carried on there. The insurers of the businesses sought to recover against the motor vehicle insurers but it was held that the careless repairman could not be considered to be an at-fault motorist. Like Vytlingam, this was an action founded in negligence, not a no-fault claim for accident benefits. Under Alberta’s standard automobile policy third party liability, the automobile insurer must indemnify not only the insured person for loss or damage arising from the ownership, use or operation of the automobile but also every other person who with the insured person’s consent “personally drives the automobile, or personally operates any part thereof.” On the day of the explosion, the person who caused the explosion had not personally driven or operated the vehicle. He was merely working on a part of the vehicle (a rear axle) that was not even attached to the vehicle at the relevant time.

As I read the Supreme Court’s brief reference in Vytlingam to the Continental decision (and in the context of the surrounding paragraphs), I conclude that the Supreme Court is merely citing with approval a case in which it was held that a repairman could not be considered to be an at‑fault motorist. This does not conclusively answer the question of whether, for no-fault accident benefit purposes in Ontario, repair of a vehicle can be considered to be a use of a vehicle.

There are very few no-fault cases from Ontario directly on point. In Umer and Non-Marine Underwriters, Mbrs. of Lloyd’s,⁶ the applicant was injured when gasoline spilled from the gas tank of his vehicle and ignited, during the repair of his vehicle at a garage. In that case, the Insurer did not dispute that repair of an automobile at a garage falls into the category of uses to which automobiles are normally put. The real issue in that case was whether the cause of the injuries was too remote to permit the applicant from successfully claiming no-fault benefits under the Schedule. Arbitrator Sapin found that these injuries were directly caused by the repair of the vehicle (i.e., there was no break in the chain of causation).

In Khan and Certas Direct Insurance Co.,⁷ the applicant was attempting to repair his wife’s van inside his garage. In the process, he removed the van’s gas tank to access the fuel pump. An arc from an air compressor inside the garage ignited the gasoline vapours and resulted in the applicant receiving burns to his head and body. Arbitrator Richards found that this did not constitute an “accident” within the meaning of the Schedule both because the repair being done by the applicant to the vehicle was not a “use” of that vehicle and also because he found that the applicant’s injuries were not caused directly by the repairs (the faulty air compressor igniting the fumes being an intervening event that broke the chain of causation).

It is widely accepted that coverage provisions in insurance policies ought to be read widely. As pointed out by Arbitrator Richards in Khan, however, the Supreme Court of Canada and the Ontario Court of Appeal have made relatively recent statements to the effect that, in deciding how to interpret coverage provisions, common sense should be used and interpretation must give effect to the reasonable expectations of the insured and the insurer.

The Insurer argues that repairing a vehicle cannot be considered to be a use of that vehicle. It is submitted that there have been a number of changes to the Schedule (such as imposing a stricter causation test⁸) which signal that the Legislature is seeking to restrict coverage and benefits in order to stabilize insurance premiums and that a narrow interpretation of the term “use” is therefore warranted. The Insurer also raises a “floodgates” argument: if Mr. Olesiuk’s injuries are found to be covered in this case (i.e., if this is found to have been an “accident”), virtually all car hobbyists and amateur and professional repairpersons will be entitled to claim accident benefits if they are hurt in the process of working on a motor vehicle.

According to Driedger’s oft cited “modern rule” of interpretation, “courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation...”⁹ Giving the phrase “use of the vehicle” its plain and ordinary meaning and considering this phrase in the context of the Schedule as a whole, how ought it to be interpreted?

Vehicles are used primarily to transport people and things from one place to another. They can also be used to store goods. They can be used to tow another vehicle or a trailer. Some vehicles are intended to be used as a temporary place in which to sleep. As vehicles and technologies change, the types of uses to which vehicles may be put will no doubt expand.

When one is repairing a vehicle, however, he or she is not actually using the vehicle. While repairs and maintenance may be integral to one’s ability to safely use and operate a vehicle, such activities are not, in and of themselves, a use of the vehicle.

Counsel for the Applicant submits that he was using this truck’s hood as a platform upon which to stand. While this is true, it does not answer the question that must be addressed by the purpose test. Why was Mr. Olesiuk standing on the truck? If he were standing on the vehicle so that he could dive into a pool, that would not be “use” of the vehicle within the meaning of the Schedule. Mr. Olesiuk was standing on the vehicle in order to repair the vehicle. Applying the purpose test as enunciated in Amos,¹⁰ repairing a vehicle is something that is done to an automobile, not an activity to which an automobile is put. I find that repairing a vehicle, in general, will not constitute a use of the vehicle and cannot be converted into a “use” merely by standing upon the vehicle while effecting those repairs.

For the foregoing reasons, I find that Mr. Olesiuk was not “using” the truck at the time of this incident.

Causation

To be successful, Mr. Olesiuk must prove that his injuries and impairments directly resulted from his use of the truck.

Since I have found that the repairs themselves did not constitute a “use” of the truck (and since the Applicant concedes that the repairs did not constitute “operation” of the truck), it might seem unnecessary for me to rule on the causation issue. That is not the case. It is conceivable that the use or operation of a vehicle could start a chain of events that led to necessary repairs that then result in an impairment. Imagine, for example, a driver, en route to some destination, who suddenly “blows” a tire. He stops at the side of the road, turns off the engine and exits the vehicle. He begins to remove the flat tire in order to replace it with the spare “donut”. In the process, he gets injured. At the exact moment of the injury, it is difficult in a strict sense to say that the driver was either operating or using the vehicle but his use or operation of the vehicle started a chain of events that led to the repair of the tire. Without deciding the issue, it is at least arguable, even under the stricter “direct causation” test, that this might constitute an “accident” under the Schedule. Similar situations might arise where a person sustains impairments as a direct result of other routine activities that flow uninterrupted from the use or operation of a vehicle (such as pumping gas, putting air in tires, topping up the fluids and so forth). Every such case will have to be decided upon its particular facts.

No such unbroken chain of events exists in this case. I have found that Mr. Olesiuk’s activities on October 24, 2008 did not constitute a use of the vehicle. In fact, Mr. Olesiuk had not used or operated the vehicle for at least three weeks. His only involvement on October 24, 2008 was as a labourer doing body work on what was apparently a still inoperable vehicle. On these facts, I find that Mr. Olesiuk has not proven that his impairments were caused directly by the use or operation of the truck in question.

CONCLUSION:

For all of the foregoing reasons, I find that Mr. Olesiuk has failed to prove, on a balance of probabilities, that he was involved on or about October 24, 2008 in an “accident” as defined in the Schedule.

September 7, 2011

Richard Feldman Senior Arbitrator

Date

Financial Services Commission des

Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 76

FSCO A10-002609

BETWEEN:

JOHN EARL OLESIUK

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is determined that:

1. Mr. Olesiuk was not involved on or about October 24, 2008 in an “accident” as defined in the Schedule.

September 7, 2011

Richard Feldman Senior Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Mr. Olesiuk was originally transported to the Welland Hospital but was subsequently transported to a hospital in Toronto, where he remained for almost two weeks.
3. 31995 CanLII 66 (SCC), [1995] 3 S.C.R. 405 (S.C.C.).
4. 42007 CarswellOnt 6626 (S.C.C.).
5. 5(1998), 1998 ABQB 387, 221 A.R. 160, 1998 CarswellAlta 408 (Alta. Q.B.).
6. 6(FSCO A02-000721, April 3, 2003).
7. 7(FSCO A06-002205, July 18, 2008).
8. 8For example, when Bill 59 was introduced, the test for causation was changed so that no-fault accident benefits were only available if an impairment (or damage to clothing, etc.) was directly caused by the use or operation of the vehicle whereas earlier versions of the Schedule only required that the applicant prove that an impairment (or damage to clothing, etc.) was caused directly or indirectly by the use or operation of the vehicle.
9. 9Ruth Sullivan, Driedger on the Construction of Statutes, 3^rd ed, Toronto and Vancouver: Butterworths Canada Ltd., 1994), at p. 131.
10. 10“Did the accident result from the ordinary and well-known activities to which automobiles are put?” -- Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405 (S.C.C.) at para. 17. The Ontario Court of Appeal has suggested that this test is still useful in weeding out those cases where the use to which a vehicle is put is not an ordinary and well-known activity that ought to be covered by a standard automobile insurance policy: Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045, [2004] O.M. No. 3485, 72 O.R. (3d) 338, 243 D.L.R. (4^th) 635 at para. 24.