B.M. v. Aviva Insurance Canada, 2017 CanLII 69451

Tribunal File Number: 17-000907/AABS

Date: 2017-10-13

Case Name: 17-000907 v Aviva Insurance Canada

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

B.M.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Meray Daoud

APPEARANCES:

For the Applicant: Ric Thomson, paralegal

For the Respondent: Megan Murphy, counsel

HEARD: Written Hearing: June 27, 2017

Overview:

1The minor applicant, B.M., was involved in an incident on July 9, 2016 wherein he was injured. He sought benefits pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant’s claim for accident benefits was denied by the respondent and the applicant brought forth an appeal to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

2This is a preliminary issue hearing. If the applicant is unsuccessful at this hearing, he will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident on July 9, 2016.

Issues in Dispute:

3The issues to be decided at this hearing are:

1. Is the motorcycle that the applicant was operating an automobile within the meaning of section 224(1) of the Insurance Act?

2. Was the motorcycle required to be insured under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (“CAIA”) or the Off-Road Vehicles Act (“ORVA”)?

3. Was the incident an accident within the meaning of section 3(1) of the Schedule?

Result:

4The motorcycle, which was involved in the incident on July 9, 2016, is not an “automobile” as defined, and as such, the applicant was not involved in an “accident” as defined by section 3(1) of the Schedule. The applicant is not entitled to accident benefits under the Schedule.

Facts:

5The parties, in essence, agreed on the facts of this case.

6On July 9, 2016, the minor applicant was riding his 2009 Honda CRF250R motorcycle (“the motorcycle”) at a privately owned and operated training and racing facility called Runway Park. This facility has multiple tracks and hosts racing events throughout the year.

7According to the owner’s manual of the motorcycle, the motorcycle is designed, manufactured and sold for close course competitions only.

8The motorcycle was not listed under any insurance policies with the respondent, and it was not registered or plated with the Ministry of Ontario.

9On the day of the incident, the applicant paid a “drop-in fee” on a practice day, to access the tracks. He also signed a waiver.

10As he was riding his bike along the outdoor dirt track, he made an unsuccessful jump and fell off his motorcycle. As he was recovering from the fall, another rider came over that same jump and struck the applicant, causing him to sustain injuries.

Discussion:

“Accident” defined:

11Section 3(1) of the Schedule provides the meaning of an “accident”:

“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.

12In order for the applicant to have been involved in an accident, it must have involved the use or operation of an automobile.

“Automobile” defined:

13In the case of Adams v. Pineland Amusements Ltd.,¹ the Ontario Court of Appeal endorsed a 3-prong test to determine if a vehicle is considered an “automobile”. The three questions it poses are:

a. Is the vehicle an “automobile in the ordinary parlance?, if not then,

b. Is the vehicle defined as an “automobile” in the wording of the insurance policy? If not, then,

c. Does the vehicle fall within any enlarged definition of an “automobile” in any relevant statute?

14The parties are in agreement, based on their submissions, that neither prong 1 or 2 of this test could be answered in the positive, for this application. Therefore, the analysis is to be focused on the third question, namely, does the vehicle fall within any enlarged definition of an automobile in any relevant statute?

15Although the Schedule does not provide a definition of an “automobile, one can be found in the Insurance Act, R.S.O.1990, c. I.8, s.224(1) (Insurance Act) which states that an “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 any regulation to be an automobile.

16Based on the parties’ submissions, it appears they agree that the motorcycle involved in this case was not one that was prescribed by any regulation to be an automobile and as such, does not fit under the second part of this definition. Therefore, s.224 (1)(a) is what remains to be determined; whether the motorcycle was required to be insured under a motor vehicle liability policy.

Was the motorcycle required to be insured?

17There are two statues to consider, the Compulsory Automobile Insurance Act (“CAIA”) and the Off Road Vehicles Act (“ORVA”).

18The CAIA is applicable when the vehicle is being driven on highways. The ORVA is applicable to vehicles driven off of highways, unless these vehicles are operated on land occupied by the owner of the vehicle.

19The parties agree that the incident did not occur on a highway, but on a privately owned track, therefore the ORVA is the applicable statute in this case.

20The parties are also in agreement that the land which the motorcycle was being operated, was not occupied by the owner of the motorcycle.

21Generally, vehicles under ORVA are required to be insured, however there are exemptions to the requirement of insurance under the ORVA Regulation 863,² for a designated class of vehicles, namely:

a. Golf Carts

b. Road- building machines

c. Self-propelled implements of husbandry

d. Wheelchairs

e. Off road-vehicles driven or exhibited at a closed course competition or rally sponsored by a motorcycle association.

22The respondent submits that the motorcycle falls within the designated class of vehicles which are exempt. The parties agree that the motorcycle, in this case does not fall under the first four exemptions. The question turns on whether the motorcycle was driven at a “closed course competition”

23The respondent relies on Rizzo & Rizzo Shoes Ltd., Re, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para.21, regarding statutory interpretation, which states:

“Today there is only one principle or approach, namely the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament”

24The respondent submits that the same is applicable to regulations, as per the Court of Appeal case of Ayr Farmers Mutual Insurance Co. v Wright.³

25The parties agree that the applicant was riding his bike on a closed course, as this was a specialized track that was only accessible by payment of a fee and execution of a waiver.

26The main issue at hand is the interpretation of the term “competition” as it relates to the case at hand.

27For the reasons below, I find that the motorcycle was being driven within a closed course competition, and as such, falls within the fifth designated class of vehicles which are exempt from the requirement of being insured, under the ORVA.

Analysis:

28The applicant submits that the definition of “competition” according the Black’s Law Dictionary- Fifth Edition, is a “contest between two rivals”. Hence, applying a narrow definition of the term.

29The applicant further submits, that in no way was the bike driven that day for any form of competition, event or sanctioned race. Further, the applicant was not practicing for a competition, nor enrolled in lessons or in the Academy.

30As the applicant is a minor, an affidavit of the applicant’s father was entered into evidence, echoing the above, as well as stating that there was no competition between the three riders, including the applicant, who were on the track that day.

31Put simply, the applicant submits that M.B was only using the track for recreational purposes on an open course day with no timers, scorers, flagmen or someone monitoring the track and that since M.B. was not engaged in a “competition”, it does not fall under the exemptions.

32The applicant relies on the FSCO case of Therrien v. Motor Vehicle Accident Claims Fund (February 24, 2011), FSCO A10-000094. FSCO cases are not binding on the Tribunal, nor am I persuaded that it sheds light on the narrow issue I have before me. It does not deal with the exemptions within the ORVA and whether the operation of the motorcycle was in a “closed course competition” and the interpretation of “competition”.

33On the other hand, the respondent submits that a broader definition of the term “competition” is to be applied and that that the legislature purposefully used the wider term, “competition” and not “race” which is defined as “a test between rivals”. Further, had the intention been to require off-road vehicles to be insured only for practice and not for a race, they would have used the word race within the exemptions.

34The respondent points out that the term “race” is one that is well-established within the context of motor vehicle insurance, and had the intention of the legislature was to provide a definition similar to that of “race”, they would have used that term instead.

35I must agree with the respondent in that, the intentional use of the word “competition” was to extend the scope beyond a “race”, to include other forms of related activities that occur on “closed courses”. This would include practice runs.

36This interpretation would be consistent in furthering the purposes of the ORVA, which is to identify off-road vehicles and control the potential damage to public property.

37I believe the intent of the legislature was to include other forms of related activities that occur on closed courses, including riding on a track on a non-race day. This is why the word “competition” rather than “race” was used. To imply a broader definition, one must look at the ORVA as a whole, along with its purpose and intent. Looking at the term in its plain definition alone is not sufficient to extract the true intention of the legislature.

38In my view, the applicant paying, signing a waiver and riding on a track on a practice day, would fall into the related activities of a “competition”. The intent of the other riders, is not known, and whether the intention of the applicant was to engage in some sort of “contest between rivals” or not, does not change the fact that he was operating his motorcycle in a “closed course competition”.

39I strongly agree with and highlight the respondent’s position, that a strict interpretation of the term would produce an absurd result, namely, that the same bike, on the same track, driven by the same rider, would only be required to be insured if it were a practice run, but not for a race. This would in no way further the purpose of the ORVA, on the contrary, it would cause further confusion in identifying off road vehicles, defeating one of its purposes.

40The narrow definition of the term “competition”, which the applicant puts forth, does not provide a sound interpretation of this term, within the ORVA. Limiting the contest to “two rivals” creates ambiguity as to whether the same definition applies where there are more than “two rivals”. I am in agreement with the respondent that this would lead to an absurd consequence, cause increased confusion and not further the purpose of the ORVA.

41If the purpose and intent of the ORVA is to identify off-road vehicles and control the potential damage to public property, it would only make sense for the term “competition” to be interpreted broadly, as limiting the exemption to races only would provide no benefit to the legislation. It does not flow that the same vehicle, driven by the same driver, on the same course is not covered under the same term, solely because it was not a “race”.

42In addition to the above, I am also inclined to highlight the fact that the owner’s manual of this motorcycle clearly and unequivocally states that it is designed, manufactured and sold for closed course competitions only.

Was the incident an accident within the meaning of section 3(1) of the Schedule?

43Based on the analysis and reasoning above, the motorcycle is not an “automobile”, as it was not required under any Act to be insured under a motor vehicle accident policy.

44Considering that the motorcycle involved in this incident does not meet the definition of an “automobile”, therefore the applicant was not involved in an accident as defined in section 3(1) of the schedule.

Order:

45For the foregoing reasons, the application is dismissed.

Footnotes

1. 12007 ONCA 844
2. 2ORVA, R.R.O.1990, Regulation 863; General
3. 32016 ONCA 789, at para.27.