Release date: 06/16/2021
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:
Clayton Madore
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Brian Cameron, Counsel
For the Respondent:
Patrick Baker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1This matter arises out of an incident that occurred on June 25, 2019. The applicant, Clayton Madore, was on the roof of his fifth wheel trailer (“trailer”) checking the roof and slide-outs when he fell from the roof onto the ground and sustained significant injuries. As a result, he sought benefits from the respondent, Intact Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”).
2Intact denied Clayton Madore’s claim for benefits, having determined that the incident did not meet the definition of an “accident” under s. 3(1) of the Schedule. Clayton Madore disagreed and applied to the Tribunal for resolution of the dispute.
ISSUE IN DISPUTE
3The preliminary issue in dispute, as agreed by the parties, is as follows:
a. Was the incident that occurred on June 25, 2019 an accident as defined by s. 3(1) of the Schedule?
RESULT
4The incident that occurred on June 25, 2019 does not meet the Schedule’s definition of an “accident.”
ANALYSIS
The events of June 25, 2019
5There is limited corroborative evidence: an unsworn statement of Clayton Madore dated September 27, 2019; an Affidavit sworn by Clayton Madore on September 8, 2020; a property insurance policy and a certificate of automobile insurance.
6Clayton Madore submits that on June 25, 2019, he brought his trailer home to get it ready to go on vacation. The affidavit confirms that his intention was to leave on June 27, 2019; had he finished preparing his trailer earlier than anticipated, then he would have left earlier. Clayton Madore was on the roof of his trailer checking the caulking on the roof and slide-outs when he fell from the roof of the trailer onto the ground.
7There is no evidence that Clayton Madore struck the pickup truck that the trailer was attached to or the trailer itself when he fell. Clayton Madore has not adduced any evidence that he tripped on any part of the roof or that the trailer itself caused the fall.
8Clayton Madore posits that he does not take his trailer on the road without first doing an inspection and maintenance. Part of his routine was to clean and inspect the trailer, which was why he was on the roof at the time of the incident. The parties agree that Clayton Madore’s trailer was attached to his parked pickup truck before, during, and after the incident, until his son disconnected the trailer following the incident. The parties also agree that the trailer and pickup were located on Clayton Madore’s driveway.
“Accident” criteria
9Section 2(3) of the Schedule sets out that benefits shall be provided in respect of “accidents”. Section 3(1) defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment […].”
10The two-part test for determining whether an incident qualifies as an “accident” under the Schedule is well-established and is set out in the seminal case of Chisholm v. Liberty Mutual Group.2 The two parts of the test are known as the “purpose” test and the “causation” test. The test was further analyzed and clarified in Greenhalgh v. ING Halifax Insurance Company3 to the extent that in order for an incident to be an “accident” under the Schedule, the insured must satisfy both branches of the test:
a. Whether the incident satisfies the purpose test:
- Did the incident arise out of the ordinary and well-known activities for which automobiles are used? and
b. Whether the incident satisfies the causation test:
Did the use and operation of the automobile directly cause the impairment?
Was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”?
For clarification, the second branch of the causation test concerns whether it can be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries. In Greenhalgh, the Court also considered “but for”, “intervening act” and “dominant feature” to analyze the causation test.
Purpose Test
Did the incident arise out of the ordinary and well-known activities for which automobiles are used?
11The short answer is yes. The intention of the purpose test is to determine the purpose for which the automobile was being used at the time of the incident and whether the incident arose out of the ordinary activities to which automobiles are put.
12The facts of the matter are that Clayton Madore was in the process of inspecting, cleaning and maintaining his trailer when the incident occurred. It is part of the “ordinary activities” for pre-travel inspection, maintenance and cleaning to occur, regardless of the age of the trailer. I disagree with Intact that the ordinary use would be limited to the act of attaching the trailer to the truck, or loading/provisioning the trailer. Clayton Madore obtained his trailer from one location and brought it to his home to prepare it for a trip to a different location. Ensuring that the trailer is in proper working, functioning and roadworthy order would reasonably include an inspection of the entire exterior (and any cleaning considered necessary).
13I find that Clayton Madore’s inspection and cleaning to be part of the ordinary activities to which a trailer would be put. Accordingly, the circumstances of this incident satisfy the elements of the purpose test.
Causation Test
Did the use and operation of the automobile directly cause the impairment?
14For the following reasons, I find neither branch of the causation test has been met.
15Clayton Madore argues that “but for” cleaning and inspecting the trailer’s roof, the incident and injuries he sustained would not have occurred. He submits that there were no intervening acts and his fall occurred as part of the “ordinary course” of use and operation of an automobile.
16Intact argues that Clayton Madore’s injuries were the result of his falling from the roof of the trailer and landing on the ground.
17I agree with Intact. There is no evidence that the fall was caused by tripping on any part of the trailer nor is there evidence of any impact with the trailer or truck in the course of falling. The incident did not involve Clayton Madore “using or operating an automobile” that directly caused Clayton Madore’s injuries, for the purposes of satisfying this branch of the causation test.
18The mere location on or near a vehicle at the time of an incident does not automatically meet the requirements of the causation test. Direct cause requires evidence that Clayton Madore’s fall was as a result of tripping on some part of the trailer and the injuries were directly caused by the trailer. In this matter, there is no evidence of either circumstance being the case.
Was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”?
19The incident was caused by Clayton Madore’s loss of footing on the roof of the trailer and the injuries were sustained as a result of landing several feet below on the ground. As I found previously, neither the truck nor the trailer directly caused the injuries. Further, the loss of footing, due to misfortune, is an intervening act and not at all directly caused by the trailer. This is confirmed in Clayton Madore’s statement and affidavit that he did not trip on any part of the trailer causing him to fall. Clayton Madore losing his footing on top of the trailer is not part of the “ordinary course of things”.
20I find that the incident that occurred on June 25, 2019 was not an “accident”, as it fails to meet the branches of the Chisholm causation test. Despite my finding, I do agree with Clayton Madore that the trailer is a “automobile”.
Is a trailer a “vehicle”?
21For the following reasons, I find that the trailer meets the definition of a “vehicle” in accordance with the Highway Traffic Act (“HTA”).
22There are several pieces of legislation that support my finding.
HTA
23Under s. 1(1) of the HTA, a “trailer” is a vehicle that is at any time drawn upon a highway by a motor vehicle; is considered a separate vehicle and not part of the motor vehicle by which it is drawn. The HTA also defines a “motor vehicle” as “any other vehicle propelled or driven otherwise than by muscular power.”
Compulsory Automobile Insurance Act (“CAIA”)
Under s. 1(1) of the Compulsory Automobile Insurance Act (“CAIA”), a “motor vehicle” has the same meaning as in the HTA “and includes trailers…of a motor vehicle.”
24Section 1 creates definitions applicable to the Insurance Act, subject to any inconsistency with definition sections under any Part of this Act.
25Under s. 1, the term automobile “includes…the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft.”
26Under Part VI (Automobile Insurance), s. 224 states that, for Part VI, the term automobile “includes a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and a vehicle prescribed by regulation to be an automobile.”
27I find that the s. 224 definition is consistent with the s. 1 definition of the term “automobile”. Therefore, s. 224 expands the definition of the term “automobile” to include trailers that are required to be insured under a motor vehicle policy. This also includes vehicles prescribed by regulation to be an “automobile”.
Is the trailer an “automobile” for the purposes of the OAP-1?
28The parties agree that this matter turns on the interpretation set out in the second branch of the test, being whether the trailer comes within the coverage set out in the wording of the OAP-1. With the definitions above in mind and for the reasons to follow, I find that a trailer meets the definition of an “automobile”.
Ontario Accident Policy 1 (“OAP-1”)
29According to the parties, the issue of whether this incident falls within the definition of an “accident” turns on an additional consideration:
a. Whether the trailer is an “automobile” pursuant to the Ontario Accident Policy 1 (“OAP-1”)?
30The Court of Appeal set out a three-part test in Adams v. Pineland4 for determining whether a vehicle is an “automobile”:
a. Is the vehicle an “automobile” in 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 “automobile” in any relevant statute?
31Clayton Madore submits that the trailer is an “automobile” because it was connected to the truck and under its power and control. Under the test in Adams, Clayton Madore submits that satisfying any of the three elements is sufficient to classify a vehicle as an automobile. Clayton Madore’s position is that the trailer satisfies the second branch of the test and is therefore an automobile. Clayton Madore further argues that the OAP-1, specifically s. 2.2.5, supports that the trailer is an automobile. Section 2.2.5 reads:
2.2.5 Trailers
Any trailer used in connection with the automobile is insured for the following coverages:
Liability,
Accident Benefits, and
Uninsured Automobile
32Intact submits that the trailer does not meet the definition of “automobile” within the terms of the OAP-1 and, therefore, does not meet the second branch of Adams. Intact relies on section 1.3 of the OAP-1, which sets out the following:
When we refer to the automobile, we mean:
- Trailers, in certain circumstances
At s. 2.1, “Described Automobile” is defined as:
A described automobile is any automobile or trailer specifically shown on your Certificate of Automobile Insurance.
33I find the trailer satisfies the third branch of the test in Adams. Section 1 of the Insurance Act sets out the following definition regarding trailers,
an “automobile” includes trailers of automobiles.
34In this regard, the trailer is a “vehicle”, which is captured under the enlarged definition as an “automobile” as confirmed in the ’relevant statute’ of the Insurance Act. I am persuaded by the evidence that Clayton Madore’s trailer meets the definition.
35Pursuant to the legislation set out in the HTA, CAIA, the Insurance Act, and the OAP-1, Clayton Madore’s trailer falls under all definitions of an “automobile”, “vehicle” and “motor vehicle”. In addition, as per s. 224, Clayton Madore’s trailer is required to be insured under a motor vehicle liability policy.
36Despite my finding that Clayton Madore’s trailer meets the definitions, the incident does not meet the definition of an “accident” under the Schedule. As such, Clayton Madore is not entitled to accident benefits.
CONCLUSION
37For the reasons set out above, I find that Clayton Madore was not involved in an accident.
Date of Issue: June 16, 2021
Derek Grant, Adjudicator
Footnotes
- O. Reg. 34/10.
- 2002 CanLII 45020 (ON CA), at para. 17. [“Chisholm”].
- 2004 CanLII 21045 (ON CA), at para. 11. [“Greenhalgh”].
- Adams v. Pineland Amusements Ltd., 2007 ONCA 844, at para. 7.