Tribunal File Number: 18-001929/AABS
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:
O. M.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
PANEL:
Brian Norris, Adjudicator
Matthew Letourneau, Adjudicator
APPEARANCES:
For the Applicant:
Jordan Palmer, Counsel
For the Respondent:
Andrew P. Smith, Counsel
HEARD: In Person on:
September 4, 2018
OVERVIEW
1The applicant was injured in an incident which occurred on a city bus on December 17, 2017, and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2016, O. Reg. 34/10 (the “Schedule”). The respondent refused accident benefits coverage to the applicant in relation to the injuries sustained in the incident. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUE
2Is the applicant entitled to receive accident benefits?
RESULT
3The applicant is not entitled to receive accident benefits pursuant to ss. 268(1.1) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Insurance Act”).
BACKGROUND
4The incident occurred after the applicant boarded a city bus. The bus was operating on a regularly-scheduled route. The applicant boarded the bus and proceeded to the marked priority seating area of the bus. All priority seats were occupied, so the applicant proceeded to the next available seat, which was a regular seat. The bus accelerated before the applicant was seated and, as a result, the applicant lost her balance and fell, causing her injury.
5At the time of the incident, the applicant used a walker and had pre-existing medical issues, including lost vision in one eye, COPD, emphysema, and a previous work-related injury to her knee.
“NO CRASH, NO CLAIM” POLICY
6The parties agree that the incident did not involve the bus having a collision. The respondent denied accident benefit coverage by operation of ss. 268(1.1) of the Insurance Act, which reads as follows:
(1.1) Despite subsection (1) and the Statutory Accident Benefits Schedule, no statutory accident benefits are payable in respect of an occupant of a public transit vehicle, in respect of an incident that occurs on or after the date this subsection comes into force, if the public transit vehicle did not collide with another automobile or any other object in the incident.
7That section creates an exception to entitlement to accident benefits where accident benefit coverage to an injured occupant of a public transit vehicle is denied, unless the vehicle collided with another automobile or object. This policy is colloquially referred to as the “no crash, no claim” policy of the Schedule.
8There are a few exemptions found under the definition of “public transit” at subsection 224(1) of the Insurance Act that apply to the “no crash, no claim” exception. Specifically, ss. 224(1) provides as follows:
‘Interpretation, Part VI
224(1) In this part, […]
public transit means,
(a) any service for which a fare is charged for transporting the public by automobiles operated by or on behalf of a municipality […]but does not include special transportation facilities for persons with disabilities or transportation by special purpose facilities such as school buses or ambulances […] (“transport en commun”)’.
9The applicant claims entitlement to accident benefits on the basis of her interpretation of the exemption outlined in the definition of “public transit” in two ways. First, the applicant was using a part of the bus which ought to be considered “special transportation facilities for persons with disabilities”. Second, the applicant claims she was using a special service provided to persons with disabilities.
10The respondent disagrees with this interpretation and submits that the priority seating area is not considered “special transportation facilities for persons with disabilities”. Similarly, the respondent holds that the service provided to the applicant is not a special service provided to persons with disabilities.
11The respondent’s position is that the applicant is not entitled to accident benefits as this incident is not exempt from the exclusion provided for under subsection 268(1.1) of the Insurance Act.
INTERPRETATION OF THE INSURANCE ACT
12The parties are at odds at how to interpret ss. 268(1.1) of the Insurance Act. However, both parties agree that the correct approach is for the Tribunal to undertake a contextual and purposive approach.1
13The Tribunal finds that, in this case, this approach consists of reading the words of the Insurance Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Insurance Act and the intention of the legislature. Also, this interpretation must be broad and generous. If any doubt arises, the Tribunal can take its interpretation further, keeping in mind that difficulties of language should be resolved in favour of the claimant.
14The French version of the Insurance Act can also assist in statutory interpretation. The parties did not make submissions on how to approach bilingual interpretation. However, to the extent it is helpful for this and for future cases of statutory interpretation of the Insurance Act, the Tribunal finds that it can read the plain and ordinary meanings of both French and English versions side-by-side to see if there is a common meaning, conflict, or ambiguity. When both meanings are the same, the Tribunal takes this to mean that this is the ordinary meaning and relying on both versions adds further weight to the presumption in favour of the ordinary meaning.2
ARE PRIORITY SEATS SPECIAL TRANSPORTATION FACILITIES FOR PERSONS WITH DISABILITES?
15The applicant submits that the priority seating area in a public bus is exempt from the definition of public transit because priority seating areas are “special transportation facilities for persons with disabilities”. The applicant submits facilities can mean both an entire vehicle and part of a vehicle because ss. 224(1) of the Insurance Act uses the term facilities in these two ways. On a plain reading of the phrases “special transportation facilities for persons with disabilities” and “transportation facilities such as school buses or ambulances”, the Tribunal ought to consider the absence of any mention of a type of vehicle in the first phrase as an indication that the word “facilities” should be interpreted more broadly.
16The applicant submits that the French version of the definition of “public transport” under the Insurance Act, or “transport en commun”, bolsters her argument. The applicant submits that the French language version avoids the use of “vehicle” and instead refers to “moyens” or “means” and leads to a broader interpretation. At the hearing, the applicant conceded this translation was not found in any dictionary, but was rather a plain language translation. The Tribunal finds that the term “moyens” must not be isolated from the rest of the provision. This term is to be read more completely as “moyens de transport”, which according to the Office Québécois de la langue française, 2017, means “[e]nsemble du matériel utile au transport de personnes ou de marchandises pour un type de véhicule ou d'installation donné. The Tribunal understands the plain and ordinary meaning of “moyens de transport” to be the ensemble of materials used for transportation of people for a type of vehicle or building.
17The respondent interprets “special transportation facilities” differently. First, the respondent suggests that the priority seats on a public bus cannot be said to be “special transportation facilities” because they are common to every public bus and are not set aside for persons with disabilities. Also, the respondent states that ss. 224(1) of the Insurance Act uses the term “public transit” – as in a type of service provided by a “public transit vehicle.”
18Although the Tribunal does not rule out the possibility that a public transit vehicle or part of it can be included in special transportation facilities for persons with disabilities, the panel finds priority seating is not a special transportation facility for persons with disabilities. Interpreting “special transportation facilities for persons with disabilities” as the applicant suggests does not reflect the plain and ordinary meaning of the provision as a whole. As the respondent argues, the disputed section refers to public transit in terms of a service and not as a vehicle. The exemption does not apply to “persons with disabilities” as the applicant suggests, but instead to a special service for persons with disabilities.
19Considering the above, the applicant is not entitled accident benefits on the basis that the portion of the vehicle the applicant was attempting to use, the priority seats, are not exempt from the exception outlined in ss. 268(1.1).
ARE PRIORITY SEAT USERS RECEIVING A SPECIAL SERVICE?
20Although the panel has found the priority seats, on their own, do not create an exemption to the exception in ss. 268(1.1), it is possible the applicant may still be exempted from the exception on other grounds. Considering the finding that the exception describes a service, the applicant would be exempt from the exception on a finding the applicant was receiving a special service for a person with a disability.
21The applicant submits that, by using or attempting the use the priority seats, the applicant is receiving a special service for a person with a disability. The applicant submitted the intention of the exception was to combat insurance fraud and considering both sides agree the applicant was injured, fraud is not an issue and the exemption to the exception should be broadly interpreted to apply to the applicant. Similarly, the applicant submits the Schedule was created to provide a safety net of guaranteed benefits for victims of automobile accidents and that denying the applicant entitlement to accident benefits leaves the applicant without a safety net, contrary to the intention of the legislation.
22The respondent submits there was nothing special about the service the applicant was receiving at the time of the incident because the applicant paid the same fare and was using the bus like any other user. The respondent holds the applicant is exempted from claiming accident benefits because the bus did not collide with another object.
23The panel finds the applicant’s use or attempted use of priority seating is not a special service provided for persons with disabilities. As a result of this finding, the applicant falls within the exemption outlined in ss. 268(1.1) and is not entitled to claim accident benefits.
24The priority seats do not fall under special transportation facilities for persons with disabilities because priority seats are not limited to persons with disabilities. Any transit rider can use the priority seats. Riders who use priority seating are not engaging in any special services. In other words, all riders are accessing the same service. This is unlike riders who engage special services such as Wheel-Trans in Toronto and DARTS in Hamilton which provide additional safety provisions such as securing riders in the vehicle prior to departure. Exempting priority seat riders in the exclusion, like Wheel-Trans or DARTS riders are exempted, would import an additional and unintended onus on the public transit operator to ensure all priority seat riders are secure before moving from a stopped position. The operator would have to ensure all riders are secure because one cannot determine a person’s ability or disability simply by looking at them. In turn, the driver would have to provide all priority seat users the same level of care afforded to users of special transportation facilities for persons with disabilities. This is an outcome the panel finds to be outside the intention of the legislation.
25The applicant’s submissions on the intention of the legislation - combatting fraud and providing a safety net for accident victims - do not contradict or detract from the ordinary language interpretation discussed above. As the respondent points out in response, these submissions fail to appreciate that there are incidents, such as assaults and slip and falls, in which a person is injured on public transit but is not entitled to accident benefits, which were likely considered by lawmakers when the legislation was crafted. Here, the applicant accessed the service of a transit vehicle that the Schedule makes exempt from entitlement to accident benefits where, as is the case here, the vehicle is not involved in a collision.
CONCLUSION
26The applicant is not entitled to claim accident benefits pursuant to ss. 268(1.1) of the Insurance Act.
ORDER
27The application is dismissed.
Released: December 5, 2018
___________________________
Brian Norris
Adjudicator
___________________________
Matthew Letourneau
Adjudicator
Footnotes
- See e.g. Bell Expressvu v Rex, 2002 SCC 42, [2002] 2 SCR 559 at para 26; Re Rizzo 7 Rizzo Shoes Ltd, 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para 36; and State Farm v Old Republic, 2013 ONSC 3887 at para 36-41.
- See e.g. R v Daoust, [2002] SCJ No 71 at para 27 - 31; and, Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed (Toronto: LexisNexis Canada, 2002) at 20-21.