M.B. v. Aviva Insurance Canada, 2019 CanLII 101465

M.B. v. Aviva Insurance Canada

Citation: M.B. vs. Aviva Insurance Canada, 2019 ONLAT 18-003303/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:

M.B.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Derek Grant

For the Applicant: Yasar Saffie, Counsel

For the Respondent: Michelle Freidman, Counsel Andy Smith, Counsel

HEARD: Written Hearing: March 11, 2019

OVERVIEW

1The applicant, (“M.B.”), was involved in an incident on October 6, 2017 wherein he was injured. He sought benefits pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). M.B.’s claim for accident benefits was denied by the respondent (“Aviva”) and M.B. brought forth an appeal to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

2The dispute in this case is whether the M.B. was involved in an “accident” as defined by the Schedule. If M.B. 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 October 6, 2017.

ISSUES

3The issues to be decided at this hearing are:

(i) Was M.B. involved in an “accident” on October 6, 2017 as per s. 3(1) of the Schedule, and if so, entitled to apply for accident benefits?

(ii) If M.B. was involved in an “accident” as per s.3(1) of the Schedule,

a. Is M.B. entitled to payment in the amount of $2,943.13 for physiotherapy services as set out in a treatment and assessment plan by Justine Wong of Work Fit Oakville dated January 15, 2018, denied by Aviva on January 29, 2018?

b. Is M.B. entitled to interest for the overdue payment of benefits?

RESULT

4M.B. was not involved in an “accident” as defined by section 3(1) of the Schedule. M.B. is not entitled to accident benefits under the Schedule.

FACTS

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

6On October 6, 2017, M.B. crashed while driving a Yamaha YZ450F motocross bike (“the motocross bike”) at a training and racing facility [ ]. This facility has multiple tracks and hosts racing events throughout the year.

7At the time of the crash, M.B. was a member of a motocross team [ ]. The motocross bike was owned by one of [the team]’s sponsors, Yamaha Canada.

8The motocross bike was not listed under any insurance policies with Aviva, and it was not registered or plated with the Ontario Ministry of Transportation.

9On the day of the incident, M.B. paid a fee and signed a waiver which permitted him to use the [ ] facility as part of an open practice day.

10While driving on a portion of the track used for races, M.B. lost control of the motocross bike after driving off of a jump. After failing to properly eject from the motocross bike, M.B. fell to the ground and the motocross bike fell on him, 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 M.B. 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 to determine if a vehicle is considered an “automobile”. The three questions are:

(i) Is the vehicle an “automobile in the ordinary parlance? If not, then,

(ii) Is the vehicle defined as an “automobile” in the wording of the insurance policy? If not, then,

(iii) 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:

(i) A motor vehicle required under any Act to be insured under a motor vehicle liability policy; and,

(ii) A vehicle prescribed by any regulation to be an automobile.

16Based on the parties’ submissions, it appears they agree that the motocross bike 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 motocross bike was required to be insured under a motor vehicle liability policy.

The motocross bike was not required to be insured

17In cases determining whether insurance is required, there are two statues to consider, the Compulsory Automobile Insurance Act (“CAIA”) and the Off-Road Vehicles Act (“ORVA”).

18The CAIA is applicable when a 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 motocross bike was being operated, was not occupied by the owner of the motocross bike.

21Generally, vehicles subject to the requirements 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:

(i) Golf Carts;

(ii) Road- building machines;

(iii) Self-propelled implements of husbandry;

(iv) Wheelchairs; and

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

22Aviva submits that the motocross bike falls within the designated class of vehicles which are exempt and therefore do not require insurance. The parties agree that the motocross bike, in this case does not fall under the first four exemptions. The question turns on whether the motocross bike was driven at a “closed course competition” and falls within designated class of vehicles which are exempt from requiring insurance.

23M.B. 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:

“…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”

24M.B. submits that the same is applicable to regulations, as per the Court’s decision in Charway v. TD Insurance Company et al.³

25The parties agree that M.B. was riding his motocross 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 subject proceeding.

27For the reasons below, I find that the motocross bike 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

28Aviva asserts the following:

(i) Off-road vehicles driven or exhibited at any and all closed course competitions do NOT require insurance; and

(ii) Off-road vehicles driven or exhibited at a rally sponsored by a motorcycle association do NOT require insurance.

29This approach is supported by the 1983 Hansard⁴ matter submitted by M.B. where the legislature was discussing the passing of the ORVA. The legislature summarized the intent of the ORVA as to “encourage the safe driving of these recreational vehicles and provide a method of control and identification”.

30I agree with Adjudicator Kowal, in M.B. and Traveller’s⁵ where she concludes:

I find this interpretation is also consistent with the intent of the ORVA from a policy perspective as vehicles driven on private property, with little risk to the public do not require insurance, (e.g. a closed course). If a vehicle is in a rally driven on public property, and it is sponsored by an organization, the risk is controlled, and the driver is also exempt from insurance. The only situation in which the driver is required to possess insurance is in the event of an unsponsored rally, on public property.

31Adjudicator Kowal rightly concludes that insurance is not required for off-road vehicles driven on private property. The event where the subject incident occurred was not a rally. In addition, [training and racing facility] is the owner of the property M.B. was injured at, thus, it is private property. As such, Aviva asserts that this statute excludes M.B. from the requirement of insurance and in turn, his eligibility to receive accident benefits. Despite this, I must still determine if a practice run, completed as a requirement of participation in a competition, falls under the definition of competition.

32I 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, with the intent of preparing for a competition. Therefore, 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. It must be read within in the entire context of the section and Act as well as its grammatical and ordinary sense.

M.B.’s Signed Statement

33In my view, M.B. paying, signing a waiver and riding on a track on a practice day in preparation for a competition, would fall into the related activities of a “competition”. In his affidavit⁶, M.B. states he “was practicing for the next day’s race and I was fully on the track used for racing”. M.B. further states “the track is solely for motocross racing, that is all they do there”.

34In his submissions, M.B. contends that in no way was the motocross bike driven that day for any form of competition, event or sanctioned race. Further, M.B. was not practicing for a competition. M.B submits he 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.

35I find this approach contradicts the facts of this proceeding.

36By his own admission, M.B.’s sole purpose of being at the track was to prepare for a competition, further confirming the intended interpretation of “competition” to include practice runs. In addition, M.B.’s statement indicated “they have some flagmen to stand there in case of a crash”, also contrary to what was stated in M.B.’s submissions. It should be noted that the Canadian Motocross Association Rulebook requires riders to have a minimum of two practice sessions in preparation for a competition event.⁷

“Competition” includes practice runs

37M.B. relies on the case of Haliburton County v. Gillespie⁸. I am not 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 motocross bike was in a “closed course competition” and the interpretation of “competition”.

38On the other hand, Aviva 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.

39Aviva 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 been to provide a definition similar to that of “race”, they would have used that term instead.

40I agree with Aviva in that, the specific and 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”. Further, I find that a competition has a broader meaning than to be limited to a single race. It may involve multiple races as well as practice runs in preparation of a race.

41I further agree with Aviva’s position, that a strict interpretation of the term “competition” 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.

42Further, it would mean having to switch between insuring and cancelling coverage on a frequent basis, for an off-road vehicle that is frequently used for practices and competitions. That would be an unintended use of the Insurance Act legislation.

43The narrow definition of the term “competition”, which M.B. puts forth, does not provide a sound interpretation of this term, within the ORVA. If 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 not serve the purpose of the legislation.

44I agree with Adjudicator Daoud on this point, where she concludes in B.M.,⁹ “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””.

45M.B.’s intention and use of the motocross bike and the track was in preparation of participating in a competition at the same track, on the same bike, the next day. To conclude that the practice run was separate from the competition he was preparing for, would create a narrowing of interpretation that would cloud the central issue in this proceeding. M.B.’s use of the motocross bike, at the track, in preparation for a race, was action I find to be part of the competition he was to be involved in the next day. As such, the motocross bike did not require insurance.

The incident was not an accident within the meaning of section 3(1) of the Schedule

46Based on the analysis and reasoning above, the motocross bike is not an “automobile”, as it was not required under any Act to be insured under a motor vehicle accident policy.

47Considering that the motocross bike involved in this incident does not meet the definition of an “automobile”, therefore M.B. was not involved in an accident as defined in section 3(1) of the schedule.

ORDER

48For the foregoing reasons, the application is dismissed.

Footnotes

1. 12007 ONCA 844
2. 2ORVA, R.R.O.1990, Regulation 863; General
3. 3Charway v. TD General Insurance Company et al., 2017 ONSC 4593
4. 4Official Hansard Transcript, Parliament 32, Session 3, June 7, 1983: Off-Road Vehicles
5. 517-006174 v. Travellers Insurance Company, 2018 CanLII 115647 (ON LAT) par. 58
6. 6Signed Statement to Gillian Dronyk of Aviva dated November 23, 2017
7. 7Canadian Motorcycle Association, Rule Book 2 - 2018 (CC/Enduro, CC/Hare Scrambles, CC/Traditional, Trial, Motocross, Stadium Motocross/Arenacross/Supercross, Snowmobile Cross Country, Supermoto), (2018), section Q-507, pg. 26.
8. 82013 ONCA 40 (Ont. C.A.)
9. 917-000907 v Aviva Insurance Canada, 2017 CanLII 69451 (ON LAT)