Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 225

FSCO A14-003622

BETWEEN:

ELEANOR CARR

Applicant

and

TD GENERAL INSURANCE COMPANY

Insurer

Before:

Arbitrator Ellen Fry

Heard:

By written submissions due September 4, 2015

Appearances:

Mrs. Siona Sullivan for Ms. Eleanor Carr, a minor, by her representative, Ms. Amy Thomson

Mr. Robert Garay for TD General Insurance Company

Issues:

The Applicant, Ms. Eleanor Carr, was injured in an incident on June 18, 2011 and sought accident benefits from TD General Insurance Company (“TD”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Ms. Eleanor Carr, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issue in this Hearing is:

Is the June 18, 2011 incident an “accident” within the meaning of Section 3(1) of the Schedule?

Result:

The June 18, 2011 incident is not an “accident” within the meaning of Section 3(1) of the Schedule.

EVIDENCE AND ANALYSIS:

Eleanor Carr, a five year old child, was injured on June 18, 2011 when she fell out of a fire truck, hitting her head on an asphalt driveway. The Applicant filed an application for accident benefits on December 6, 2012 with TD, under a policy issued to her father, Mr. Timothy Carr. TD denied the application on the basis that the incident was not an “accident” within the meaning of Section 3(1) of the Schedule.

The incident occurred while Eleanor Carr was attending a birthday party for a classmate at her classmate’s home. Her classmate’s father and grandfather were volunteer firefighters for the Town of Niagara-on-the-Lake. After obtaining the necessary permission, they brought a fire truck owned by the Town to the birthday party.

The evidence submitted by the parties concerning the incident is in their joint documents brief and consists of transcripts of examinations for discovery of Ms. Carr’s father and grandfather, conducted on March 24, 2015. The parties did not submit evidence from anyone who witnessed the incident.

The children attending the birthday party were invited to tour the fire truck. Throughout the period when the children were touring the truck, the truck was stationary, and the evidence submitted by the parties indicates that the engine was off. As the children toured the fire truck, the grandfather of Eleanor’s classmate walked around talking to their parents and educating them on the use of the truck. The transcripts of examinations for discovery submitted by the parties indicate that Eleanor apparently misstepped and fell as she went down the steps getting off the truck.

Section 3(1) of the Schedule defines “accident” as follows:

3(1) In this Regulation,

“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 case law establishes that the incident must satisfy both parts of a two-part test in order to fall within this definition:

Did the incident result from the ordinary and well-known activities to which the fire truck was put (the purpose test); and
Is there a direct causal relationship between Eleanor Carr’s injuries and the use or operation of the fire truck (the causation test).

The Applicant submits that the purpose test is met, for two reasons. First, the Applicant submits that getting out of a fire truck is the normal use or operation of a vehicle. Second, the Applicant submits that the fire truck was normally used as a display for members of the public for safety and education purposes and therefore the activity at the birthday party that day constituted normal use or operation in the circumstances. The Applicant cites Whipple and Economical Mutual Insurance Co.² for the proposition that in determining normal use and operation, the individual characteristics of a vehicle must be taken into account, including in this instance its use at private events for education and safety demonstration purposes. The Applicant also cites several cases in which a parked vehicle was determined to meet the purpose test.

The Insurer submits that the purpose test is not met. In the Insurer’s view the fire truck was not being used or operated as an “automobile” at the time of the incident. It was being used for amusement and entertainment purposes only, whereas the normal use and operation of fire trucks is to transport firefighters to fires. The Insurer also submits that because the engine was off and the truck was being used for non-motoring purposes, it was not being used or operated as an “automobile” at the time of the incident. The Insurer submits that “SABS is automobile legislation [sic]” and therefore that “Someone who uses a vehicle for non-motoring purposes cannot expect to receive benefits from a motor vehicle insurance policy”.³

In Amos v. Insurance Corp. of British Columbia⁴ and Citadel General Assurance Co. v. Vytlingam,⁵ the Supreme Court of Canada considered the interpretation of the phrases “use or operation of a vehicle” and “use or operation of [an] automobile”. Although these cases did not address Section 3(1) of the Schedule, each addressed essentially the same wording, in an automobile insurance context. In Vytlingam, the court stated as follows:

While no-fault insurance and indemnity insurance rest on different statutory provisions, both fall to be interpreted in the context of a motor vehicle policy. When Major J. said in Amos that it was a condition of no-fault coverage that the claim relate to “the ordinary and well-known activities to which automobiles are put” (para. 17), he was simply signalling that someone who uses a vehicle for a non-motoring purpose cannot expect to collect motor vehicle insurance. If, for example, a claimant got drunk and used her car as a diving platform from which to spring head first into shallow water, and broke her neck, she could not reasonably expect coverage from her motor vehicle insurer, even though, in a sense, she “used” her motor vehicle. The same conclusion is compelled under s.239(1)(a)⁶ because an injury resulting from such an off-beat use could not sensibly be said to arise “directly or indirectly from the use or operation” of the motor vehicle as a motor vehicle.

The “ordinary and well-known activities to which automobiles are put” limits coverage to motor vehicles being used as motor vehicles.⁷

It is appropriate to use the same approach in determining whether this incident involves the “use and operation” of the fire truck within the meaning of Section 3(1) of the Schedule.

As submitted by the Applicant, getting out of a fire truck is the normal use or operation of a vehicle, and in determining normal use and operation, the individual characteristics of the truck must be taken into account. In this regard, the evidence does indicate that the use of the fire truck at the birthday party was a normal use or operation of the truck in the circumstances. However, the use or operation of the truck in this instance did not involve the fire truck being used as a motor vehicle. Rather, it was a use of the truck as a display for entertainment and/or educational purposes. Although the evidence indicates that this was a legitimate use of the truck, it was not a type of use or operation contemplated by Section 3(1).

In coming to this conclusion, the fact that the truck was stationary, with its engine off, is not in itself determinative. The Applicant has cited several cases in which an incident was found to be covered by Section 3(1) even though the vehicle in question was parked at the time of the incident. However, in those cases the vehicle was being used as a motor vehicle, and was parked as part of that use. The distinguishing factor is that in the current case the vehicle was not being used as a motor vehicle, and was parked as part of its use as a display.

Accordingly, this incident does not meet the purpose test. Given this conclusion, it is not necessary to consider whether the incident meets the causation test.

EXPENSES:

I award expenses of this Hearing to the Insurer. If the parties are unable to agree on the quantum of the expenses, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 30, 2015

Ellen Fry

Arbitrator

Date