Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2016 ONFSCDRS 256
FSCO A15-000850
BETWEEN:
LARISA RUBIN SIMONOV
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
Arbitrator Paulina Gueller
Heard:
By written submissions due July 18, 2016
Appearances:
Ms. Alyson Toms did not participate Ms. Danielle Koehn participated for TD Home and Auto Insurance Company
Issues:
The Applicant, Mrs. Larisa Rubin Simonov, was injured in a motor vehicle accident on September 12, 2012 and sought accident benefits from TD Home and Auto Insurance Company (“TD”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Mrs. Rubin Simonov, through her representative, applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
The issues in this Preliminary Issue Hearing are:
Was the cart being used by Mrs. Rubin Simonov on September 12, 2012 within an airport terminal building a motor vehicle within the meaning of the Schedule?
Should this Application for Arbitration be dismissed?
Is TD entitled to its expenses of this proceeding?
Result:
The cart used on September 12, 2012 within the airport terminal building is not a motor vehicle within the meaning of the Schedule.
Mrs. Rubin Simonov is precluded from proceeding to Arbitration. This Application for Arbitration is dismissed.
TD is entitled to its expenses of this Preliminary Issue Hearing and Arbitration proceedings in the amount of $1,500.00, inclusive of all fees, disbursements and HST.
EVIDENCE AND ANALYSIS:
The Insurer submitted that, as set out in the Pre-Hearing letter, dated December 3, 2015, the parties agreed on the facts that Mrs. Rubin Simonov suffered her injuries when she was riding in a cart, as a passenger, in the terminal at Pearson International Airport.
However, the Insurer submitted that Mrs. Rubin Simonov's injuries as a result of falling off the cart are not eligible for accident benefits because the cart was not an automobile/vehicle for the purposes of accident benefits. It asserts that there is no legislation or case law that supports that a cart being used in an airport terminal qualifies as a motor vehicle within the meaning of the accident benefits legislation, and that Mrs. Rubin Simonov has no entitlement under the Schedule and cannot proceed to Arbitration before FSCO.
The Insurer submitted that the following legislation is relevant in this case:
- Section 224(1) of the Insurance Act, R.S.O. 1990, c. I. 8. defines "automobile” as:
(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.
Section 268(1) of the Insurance Act provides that every motor vehicle liability policy shall be deemed to provide for the statutory accident benefits set out in the SABS.
The requirement that a motor vehicle be insured under a motor vehicle liability policy is imposed by the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C. 25.
Both the Compulsory Automobile Insurance Act and The Highway Traffic Act, R.S.O. 1990, c. H.8. define "motor vehicle" in s.1(1) as any vehicle that is propelled or driven otherwise than by muscular power.
Section 2 of the Compulsory Automobile Insurance Act prohibits the operation of a motor vehicle on a highway unless the motor vehicle is insured under a contract of automobile insurance.
The Off-Road Vehicles Act, R.S.O, 1990, c.O.4 exempts golf carts when not driven on a highway, or only crossing a highway.
Benefits are only payable under the Statutory Accident Benefits Schedule – Effective September 1, 2010, Insurance Act Regulation 34/10 if, the claimant was involved in an accident as defined in Section 2(1) of the SABS as "an incident in which the use or operation of an automobile directly causes an impairment…".
The Insurer also provided me with case law from the Ontario Court of Appeal that dealt with the issue of what constitutes a motor vehicle for the purpose of insurance in Adams v. Pineland Amusements Ltd., 2007 ONCA 844. In the case mentioned above, a go-kart operated on a private track was not considered an "automobile" within the meaning of the standard Ontario Automobile Insurance Contract, because it can only be considered an automobile if it required insurance.
The Court of Appeal approved a three-part test to determine if something is considered a vehicle:
Is the vehicle an automobile in the ordinary parlance? If not, then;
Is the vehicle defined as an automobile in the wording of the insurance policy? If not, then;
Does the vehicle fall within any enlarged definition of "automobile" in any relevant statute?2
The Insurer suggested applying the three-part test from Adams to determine if the airport cart is considered a vehicle, as follows:
a golf cart or go-kart as a vehicle is not an automobile in ordinary parlance;
the cart is not defined as an automobile in any wording of the insurance policy available to the parties;
like in Adams and Buckle, this case must look at the enlarged definition of "automobile" in any relevant statute.
The Insurer also submitted that the definition of automobile done by Arbitrator Kominar in the Buckle decision and Director's Delegate Evans (who upheld the original Buckle decision),3 concluded that a golf cart, until it was driven onto the highway, did not need to be insured under a motor vehicle liability policy, and so at least until it was driven on the highway it was not an “automobile”.
I am persuaded that there are no significant differences between the cart in which Mrs. Rubin Simonov was a passenger and the golf cart referred to in the Buckle decision. Both are four-wheeled, motorized, and designed to transport people on private property for convenience. Conversely, in the Buckle case, the golf cart was driven on a highway, and until it was driven on the highway, it was not considered an 'automobile', and did not require insurance.
Mrs. Rubin Simonov provided no evidence in this matter. The Applicant has the onus to prove her claim. However, she did not submit any materials supporting that the use or operation of a cart within an airport terminal meets the definition of motor vehicle within the meaning of the Schedule, or that the cart in this case would be required to have automobile insurance according to the Insurance Act.
For all of the above reasons, I find that the cart used on September 12, 2012, within the airport terminal building, is not a motor vehicle within the meaning of the Schedule. Therefore, I find that the Applicant is precluded from proceeding to Arbitration and this proceeding is dismissed.
EXPENSES:
TD requested the expenses of the Preliminary Issue Hearing and for the previous proceedings, but did not provide a Bill of Costs or detail of its disbursements.
The relevant criteria for an Arbitrator when awarding expenses to a party, if the Adjudicator is satisfied that the award of expenses is justified, is set out in Rules 75.1 and 75.2 of the Dispute Resolution Practice Code as follows:
The Adjudicator will only consider the criteria referred to in the Expense Regulation found in Section F of the DRPC. These criteria are:
(a) each party's degree of success in the outcome of the proceeding;
(d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;
(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.
In awarding expenses, I am taking into consideration the relevant criteria, which includes the party’s success in the proceedings and the conduct of the party. Mrs. Rubin Simonov attended the Pre-Hearing but failed to provide any evidence to support her claim.
TD is the successful party and is entitled to its expenses. I consider the time that TD’s counsel spent in preparing the responses to the Application for Arbitration, consulting with their client, attending one Pre-Hearing and the preparation of the Preliminary Issue Hearing.
Accordingly, I exercise my discretion pursuant subsection 282(11) of the Insurance Act, and order that Mrs. Rubin Simonov pay TD expenses in the amount of $1,500.00, inclusive of all fees, disbursements and HST.
This amount is payable forthwith.
September 26, 2016
Paulina Gueller Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2016 ONFSCDRS 256
FSCO A15-000850
BETWEEN:
LARISA RUBIN SIMONOV
Applicant
and
TD HOME AND AUTO INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
The cart used on September 12, 2012 within the airport terminal building is not a motor vehicle within the meaning of the Schedule.
Mrs. Rubin Simonov is precluded from proceeding to Arbitration. This Application for Arbitration is dismissed.
TD is entitled to its expenses of this Preliminary Issue and Arbitration proceedings in the amount of $1,500.00, inclusive of all fees, disbursements and HST.
September 26, 2016
Paulina Gueller Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- Ibid., paras. 7-8 from the Insurer’s Submissions.
- Insurer’s Submissions - Buckle and Motor Vehicle Accident Claims Fund (FSCO A10-000010, February 3, 2011), pg. 10.