PRELIMINARY ISSUE DECISION AND ORDER
Tribunal File Numbers: 18-003343/AABS, 18-001607/AABS
In the matter of Applications pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
C.C.
Appellant
and
Intact Insurance Company
Respondent
R.C.
Appellant
and
Economical Insurance Company
Respondent
VICE CHAIR: Susan Mather
Appearances:
For the Appellant, C.C.: Roelf Swart, Counsel
For the Appellant, R.C.: Siona Sullivan, Counsel
For the Respondent, Intact Insurance: Doug Wallace, Counsel
For the Respondent, Economical Insurance: Gerald George, Counsel
Heard: In Writing: December 3, 2018
REASONS FOR PRELIMINARY ISSUE DECISION AND ORDER
OVERVIEW
1The applicants are brothers who suffered serious life threatening burns as a result of an explosion and a fire that occurred on January 16, 2016. The explosion and fire happened while the applicants were working on changing the fuel pump of a 1998 Monte Carlo car in the garage at R.C.’s (“R”) home.
2R and C. C. (“C”) made applications for benefits pursuant to the Statutory Accident Benefits Schedule- - Effective September 1, 2010 (the ''Schedule'') through their own automobile insurers, respectively Intact Insurance (Intact) and Economical Insurance (Economical).
3The Schedule1 provides that the benefits set out therein shall be provided under every contract evidenced by a motor vehicle liability policy in respect of accidents occurring on or after September 1, 2010.2
4Both Intact and Economical denied the applicants’ claims for benefits on the basis that their injuries were not the result of an accident within the meaning of the Schedule.3
5The applicants disagree. At the case conferences held on August 10, 2018 the parties agreed to have the preliminary issue of whether they are entitled to claim accident benefits under the Schedule heard together based on an agreed statement of facts4.
6For the reasons provided below I find that the applicant’s injuries are not the result of an accident within the meaning of the Schedule. The applicants’ claims for benefits are dismissed.
PRELIMINARY ISSUE
7The preliminary issue to be determined is whether the applicants’ impairments are as a result of an “accident” as defined by the Schedule.
AMENDED AGREED STATEMENT OF FACTS
8In the days and weeks before the accident the applicants’ brother [H’s} Monte Carlo was having issues with stalling and starting. The applicants were aware that these issues were easily remedied by replacing the fuel pump. The applicants had successfully replaced fuel pumps before.
9R moved the Monte Carlo into his garage a few days prior to the incident. On the day of the incident R commenced the process of replacing the fuel pump. He raised the rear of the vehicle by two hydraulic floor jacks and safety stands were installed. The car’s rear ties were removed to provide easier access to the fuel tank. After C arrived he and R prepared to lower the fuel tank.
[10] Prior to lowering the fuel tank the following steps were completed: i. A pressure gauge was used to relieve the pressure within the fuel system. ii. The battery cables were disconnected. iii. Gasoline was syphoned from the fuel tank. iv. The filler hose was disconnected from the fuel tank. v. The electrical connection was disconnected from the fuel pump. vi. The fuel lines to the fuel tank were disconnected. vii. A hydraulic jack and a piece of plywood were placed underneath the fuel tank to support it while it was being lowered.
11Both brothers were underneath the Monte Carlo. They illuminated the bottom of the car with a corded trouble light attached to the bottom of the car.
12As R and C began lowering the fuel tank towards the plywood the fuel tank shifted and gas spilled out of the tank on to the floor.
13R went to grab a pail to collect the spillage. As he returned from getting an oil catch pan and while they were rushing to prevent further spillage of gasoline, one of the brothers caught the extension cord connected to the trouble light. The light fell to the floor. The bulb shattered and ignited the spilled gasoline and vapours.
THE LAW
[14] In the Schedule: “accident” means an incident in which the use or operation of an automobile directly causes and impairment or directly causes damage to any prescription eyewear, denture, hearing aide, prosthesis or other medical or dental device.
15In 1995 decision of the Supreme Court of Canada (“SCC”) decided Amos v. ICBC5 (“Amos”) in which it adapted a two part test to be used to determine whether an incident is an accident covered by no fault statutory automobile benefits. Amos established that in the context of no-fault benefits the expectations of the parties is that no-fault benefits will be available when an accident occurs during the “ordinary and well known uses of their vehicles”.
16The two tests adopted by the SCC in Amos are known as the “purpose” test and the “causation” test.
Amos Purpose Test
- Did the accident result from ordinary and well-known activities to which automobiles are put?
Amos Causation Test 2. Is there some nexus or causal relationship between the appellant’s injuries and the ownership, use or operation of his vehicle or is the connection merely incidental or fortuitous?
17The parties agree that the he causation test established in Amos was narrowed by the Ontario Court of Appeal (OCA) in Chisholm v. Liberty Mutual Group (“Chisholm”)6 . In Chisholm the OCA considered the current definition of “accident” found in the Schedule which differs from the definition of “accident” considered by the SCC in Amos. Ultimately the OCA recognized that the definition of “accident” found in the Schedule is narrower that the definition of accident considered in Amos.
18The OCA concluded that definition of accident in the Schedule requires not just that the use or operation of a motor vehicle be a cause of the injuries it must be a “direct cause”.
19The OCA considered the causation test again in Greenhalgh v. ING Halifax (“Greenhalgh”))7, Downer v. Personal (“Downer”)) and Martin v. 2064324 Ontario Inc.(“Martin”))8
20In Greenhalgh the OCA found that there was good reason to retain the Amos purpose test and the causation test as set out in Chisholm. The OCA found that the definition of “accident” in the Schedule involves the consideration of two questions:
Purpose Test
- Was the use or operation of the vehicle a cause of the injuries?
Causation Test 2. If the use or operation of a vehicle was a cause of the injuries was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?
21The SCC considered the question of whether an impairment arose from the ownership or directly or indirectly from the use or occupation of a motor vehicle in the case of Citadel General Assurance Company v. Vytlingam9 (“Vytlingam”).
22In Vytlingam the SCC found that insurance policies must be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer.
[23] The SCC stated that: “Motorists generally believe that when an accident occurs while they are making “ordinary and well-known” use of their vehicles, no fault benefits will be available. This is the mutual expectation of both the insured and the insurer.”
24The SCC in Vytlingam stated that in Amos when Major J. said it was a condition of no-fault coverage that the claim relate to the “ordinary and well-known activities to which automobiles are put” he was simply signalling that someone who uses a vehicle for non-motoring purposes cannot expect to collect motor vehicle insurance. The SCC also found that the “ordinary and well known activities to which automobiles are put” limits coverage to motor vehicles that are being used as motor vehicles.
25In Vytlingam the SCC substituted a phrase in the Amos purpose test so the test is now - Did the accident occur in the course of the ordinary and well known activities to which automobiles are put?
[26] Economical and Intact argue that the Vytlingam case is a watershed decision supporting the proposition that a person in the course of repairing an automobile in a garage is not using or operating it as a motor vehicle. In their view the statement by Justice Binnie in Vytlingam that: “For coverage to exist there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made… if the vehicles involvement is held to be no more than incidental or fortuitous or “but for”, and is ruled severable from the real cause of the loss, then the necessary causal link is not established.”
27The applicants do not agree. The applicant’s argue that the real function of the purpose test is to exclude coverage for off-beat or aberrant uses of vehicles. They argue that in Vytlingam the SCC implied that cases where coverage is excluded will be extremely rare and that coverage is intended to be broad and not much will be excluded as an aberrant use of a motor vehicle as a motor vehicle.
28The applicants argue that Vytlingam affirms that coverage should be broader in accident benefits cases and that it does not support the proposition that a person repairing an automobile in a garage is not using or operating the motor vehicle.
29In its decision in Economical v. Caughy10 the OCA confirmed that Justice Binnie’s statement in Vytlingam that “The “ordinary and well known activities to which automobiles are put” limits coverage to motor vehicle being used as motor vehicles In Caughy the issue was whether the temporary parking of a motorcycle on a walkway constituted an ordinary and well-known use of a vehicle. The OCA confirmed that it is.
30The OCA in Caughy held that there is no active use component in the purpose test. The sole question is whether the incident resulted from the “ordinary and well known uses to which automobiles are put”.
ANALYSIS
31For the purpose of my analysis I have applied the two part test set out in Greenhalgh as it is the most recent OCA pronouncement of the tests to be applied in interpreting the Schedule’s meaning of “accident”.
Purpose Test
[32] For the purpose test I have considered both the wording of the purpose test in Greenhalgh and the test applied by the S.C.C. in Amos as modified by the SCC in Vytlingam: i. Was the use or operation of the vehicle a cause of the injuries? ii. Did the incident occur in the course of the ordinary and well known activities to which automobiles are put?
33For the reasons provided below I find that the applicants in the course of replacing the fuel pump on their brother’s Monte Carlo were not using or operating the Monte Carlo within the meaning of the Schedule.
34I do not find that replacement of a fuel pump in a vehicle that has not been operated for several days and is hoisted on hydraulic jacks to be an ordinary and well known activity to which automobiles are put by motorists.
35For that reason I find that the January 30, 2016 incident in R’s garage was not an “accident” within the meaning of the Schedule.
36In making my decision I have kept in mind the principle confirmed by the SCC in Vytlingam that my interpretation must keep in mind the reasonable expectation of both the insured and the insurer.
37I have focused on the case law interpreting the meaning of the word “accident” as it is used in the Schedule. I agree with the submission of Intact and Economical that cases that pre-date the legal test set out by the OCA in Chisholm, Greenhalgh, Downer and Martin, applied tort principles and/or were decisions in other provincial jurisdictions under their respective schemes and are not helpful or binding precedent.
38While the SCC decision in Vytlingam is not a no-fault benefits case I agree with Intact and Economical that reliance on the Vytlingam decision by the OCA in Caughy confirms that the SCC’s comments in Vytlingam with respect to the purpose test are binding precedent.
39The question to be decided is whether R and C were using the Monte Carlo for a recognized and well known purpose to which automobiles are put when they undertook to repair the vehicle by replacing the fuel pump in the vehicle in R’s garage.
40Intact and Economical argue that the fact that the Monte Carlo was inoperable at the time of the incident is an important consideration in this case. They rely on the statement of the Court of Appeal in Caughy that “there was no evidence that the motorcycle was inoperable” to support their argument that the fact that the Monte Carlo was inoperable at the time of the incident means that it could not be used or operated as a motor vehicle.
41The applicants argue that Caughy stands for the proposition that there is no requirement that a vehicle must be in active use or able to be driven at all times as long as the use being made is an ordinarily and well-known activity such as parking, changing tires, repairing a vehicle or alighting/disembarking. They submit that the vehicle does not even have to be turned on as long as the use being made is ordinary or well known.
[42] While the OCA in Caughy clearly stated that a vehicle does not have to be in active use to meet the purpose test it also stated that coverage is limited to motor vehicles being used as motor vehicles. In my view the comments of Justice Binnie’s in Vytlingam are key to determining if the Monte Carlo was being used for an ordinary and well know activity. Justice Binnie stated: “When Major J. said in Amos that it was a condition of no-fault coverage that the claim relate to the ordinary and well know activities to which automobiles are put, he was simply signalling that someone who uses a vehicle for a non-motoring purpose cannot expect to collect motor vehicle insurance.”
43In my view the fact that the vehicle was moved into the garage a couple of days before the repair was undertaken, the fact that the vehicle was inoperable at the time of the incident and the complexity of the repair undertaken support the conclusion that the applicants were not using the vehicle for a motoring purpose at the time of the incident.
44C argues that Intact “at all material times expected or ought to have expected that their insured, [H]11, his family members and/or his mechanics would perform repairs on the vehicle and such repairs would constitute the use an operation of the vehicle and such use and operation of the vehicle could result in an injury to the insured and/or third parties using the vehicle with the insured’s consent”.12
45I do not agree that it is a reasonable expectation of insured or insurers that insureds who undertake to repair a third party’s vehicle and are not using the vehicle for a motoring purpose at the time of the repairs are covered by no-fault accident benefit.
46Several cases have considered the issue of whether incidents involving the repair of a motor vehicle constitute an “accident” within the meaning of the Schedule.
47Economical and Intact rely on the Financial Service Commission of Ontario (“FSCO”) decisions in Olesiuk v. Kingsway General Insurance Company13 (“Olesiuk”) and Khan v. Certas14 ( “Khan” ) to support the proposition that repair of an inoperable vehicle does not constitute use of the vehicle.
48In Olesiuk the claimant was injured when he fell off the hold of a truck which he was repairing and as a result of the incident sustained serious injuries. The arbitrator found that when one is repairing a vehicle he is not actually using that vehicle.
49In Khan the vehicle stopped running some distance away from the applicant’s home. A tow truck took the vehicle to the applicant’s garage where the applicant removed a gas tank to access a faulty pump. The applicant disconnected the fuel line leading from the gas tank to the engine. After disconnecting the fuel line the applicant used compressed air power tools to attempt to disconnect the bolts holding the gas tank to the underside of the van. At some point while using the compressor and air tools the garage caught on fire. The van was completely destroyed and the applicant sustained burns to his head and body.
50The arbitrator in Kahn found that at the time of the repair the applicant was doing something to the vehicle but he was not using the vehicle as a motor vehicle.
51He found that the common sense approach outlined in Vytlingam necessitated the conclusion that the repair of the vehicle in the garage was not use of or operating the vehicle. He found that the applicant’s activities were that of a repair man not of a motorist.
52While I am not bound by the decision of a FSCO arbitrator I agree with the conclusion the arbitrator reached in Khan.
53The applicant’s rely on Olesiuk to argue that it is conceivable that the use or occupation of a vehicle could start a chain of events that leads to necessary repairs that results in an impairment.
54The determination of whether a motor vehicle is in use or operation within the meaning of the Schedule is very fact specific. This is not a case where the use or operation of a vehicle started a chain of events that led to necessary repairs that resulted in an impairment.15 16 The Monte Carlo had been in R’s garage for several days before the incident took place.
55The applicants argue that repairs of a vehicle fall into a category of uses to which automobiles are normally put and constitute a normal use and occupation17. The applicants rely on Financial Services Commission of Ontario (“FSCO”) case of Umer v. Non-Marine Underwriters, Mbrs. of Lloyds (“Umer”)18.
56In Umer the insured took his taxi to a garage for repairs. As he watched the repairs, gasoline spilled from the gas tank of his taxi and caught fire. The insured suffered burns as a result of the fire. His insurance company denied accident benefits under the Schedule on the basis that the injuries did not result from an accident as defined in the Schedule. The FSCO arbitrator found that the applicant was injured as a result of an “accident” and was entitled to claim benefits.
57I do not find the Umer case of any assistance in my deliberations on the purpose test. In Umer the parties agreed that the repair of the insured’s automobile at the garage fell into the category of uses to which automobiles are normally put and the FSCO arbitrator did not have to determine the issue that is before me.
58The applicants also rely on two decisions of the British Columbia Supreme Court to support their position. I do not find either the case of Elias v. Insurance Corporation of British Columbia19 (“Elias) or Shelton v. Insurance Corporation of British Columbia, et al20 (“Shelton”) to be applicable to the facts before me. In both of these cases which were decided before 1996 amendments to the Insurance Act the issue before the B.C. Supreme Court was the liability of insurers for property damage.
59I also do not find the Ontario Superior Court case of Horsefield v. Economical Mutual Insurance Company21 (“Horsefield”) helpful in my deliberations. The issue in Horsefield was liability for property damage caused by a fire that occurred while a vehicle was being repaired.
60The question was whether an exclusion clause in a tenant’s insurance policy that excluded damage arising from the ownership, use or operation of any motorized vehicle applied. The Court found that the tenant’s maintenance and repair of his motor vehicle constituted the “use” of a motorized vehicle within the meaning of the motorized vehicle exclusion in the policy.
61In my view Horsefield may be distinguished on the facts in that the Court was asked to interpret the mean of the word “use” of a motor vehicle in the context of the motor vehicle exclusion clause in the contract and not in the context of no-fault automobile insurance.
62I am of the view that on the facts of this case the repair undertaken by the applicant’s is not an ordinary and well know use of a vehicle by an insured which is covered the Schedule. I do not see any connection between the Monte Carlo being used for a motoring purposes and the repair by R and C undertaken in the R’s garage several days after the vehicle was last used for motoring purposes. In my view the no fault automobile benefits provided in the Schedule are not meant to be available to a person whose only connection to the vehicle is that of a repairman.
63While it is accepted that coverage provisions in insurance policies ought to be read widely, it is also recognized that common sense must be used. I do not agree with the applicants that the replacement of a fuel pump is a “minor repair” ordinarily undertaken by car owners or their family members. How many insured’s have their own hydraulic lifts in their garage and the know-how to access and replace a fuel pump?
64The facts of this case are easily distinguishable from the facts of the Davis v. Aviva Canada Inc.22(“Davis”) case relied on by the applicant’s. In Davis the applicant was injured when the hood of her car collapsed on her while she was replacing windshield fluid. The car was parked in the driveway and the applicant was not planning to go anywhere. The Ontario Superior Court found opening of a car hood to check the level of windshield washer fluid is an “ordinary and well known activity to which automobiles are put.
65In Davis the Court also recognized that the cases turn on the fact and that there is “no doubt that some accidents arising out of auto repairs, depending on the venue and surrounding circumstances, could well fall outside of the parameters of “ordinary and well know activities to which automobiles are put.”
66Having determined that the applicants’ repairs to the Monte Carlo do not meet the purpose test I need not consider whether the causation test is met.
COSTS
67The applicant CC request costs.
68Rule 19.1 of the Tribunal’s Rules23 allows a party who believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith to make a request to the Tribunal for costs.
69Rule 19.4 requires a party requesting a cost order to make a submission setting out the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious or in bad faith.
70C has not made any submissions setting out the particulars of any other party’s conduct that he alleges to be unreasonable, frivolous, vexatious or in bad faith. For that reasons I am unable to consider his request for costs and the claim is denied.
ORDER
[71] For the reasons provided above I Order:
- The applications are dismissed.
- CC’s request for costs is denied.
Released: June 12, 2019
Susan Mather Vice Chair
Footnotes
- O.Reg 34/10
- S. 2, O.Reg.34/10
- S. 1, O. Reg. 34/10
- Amended Agreed Statement of Facts, dated November 22, 2018
- (1995), 1995 CanLII 66 (SCC), 3 S.C.R. 405
- 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135
- 2004 CanLII 21045 (ON CA), [2004] O.J. No.3485 (CA)
- 2013 ONCA 19
- [2007] 3 R.C.S.
- 2016 ONCA 226
- The applicants’ brother who owned the Monte Carlo
- Paragraph 25, Submissions of C.C.
- 2011 CarswellOnt 9791
- 2008 CarswellOnt 4541
- Olesiuk v. Kingsway General Insurance Company, FSCO A10-002609
- Federation Insurance Company of Canada v. Saad, FSCO Appeal P03-00017
- Part IV, paragraph 2, Submissions of C.C.
- FSCO A02-00721
- 1992, CanLII 762 BCSC
- 1991 Can LII 2142 BCSC
- 2017 ONSC 4868
- 2017 ONSC 6173
- Safety, Licensing Appeals & Standards Tribunals Ontario , Common Rules of Practice and Procedure, October 7, 2107