Licence Appeal Tribunal File Number: 22-001100/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:
Danielle Balon
Applicant
and
BelairDirect
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Danielle Balon, Applicant
Brent Meadows, Counsel
For the Respondent:
Jane W.S. Lo, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1Danielle Balon, the applicant, was involved in an automobile accident on July 12, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Belair Direct, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue to be decided is:
- Was the incident the applicant was involved in on July 12, 2020, considered an accident?
RESULT
3I find that the applicant was not involved in an accident pursuant to section 3 of the Schedule.
ANALYSIS
4On July 12, 2020, the applicant was injured when she was thrown off an All-Terrain Vehicle ("ATV"). The applicant does not have a recollection of the incident due to her brain injury. However, she believes that she was a passenger on an ATV driven by the boyfriend of the owner of the property who was hosting a social gathering. The gathering was held at a property owned by her friend. She does not know who owns the ATV due to the lack of cooperation from the individuals at the social gathering and the owner of the property. The applicant submits that she was involved in an accident in accordance with section 3(1) of the Schedule. The respondent submits that the applicant has not met the onus of proving that she was involved in an "accident" as defined by the Schedule.
5Section 3 of the Schedule defines "accident" as 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."
6"Automobile" is not defined in the Schedule but is in section 224(1) of the Insurance Act. There, "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 regulation to be an automobile."
7The ATV was being used on private property and is subject to the Off-Road Vehicles Act, R.S.O. 1990, c. O.4 ("ORVA"). The ORVA defines an "off-road vehicle" as a "vehicle propelled or driven otherwise than by muscular power or wind and designed to travel, (a) on not more than three wheels, or (b) on more than three wheels and being a prescribed class of vehicle." Section 15(1) stipulates that no person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy and section 15(2) provides that the owner shall not permit the vehicle to be driven unless it is insured. Section 15(9) provides an exemption to ss.15 (1) and (2) for an off-road vehicle driven on the vehicle owner's property.
8With the legislation in mind, it follows that the applicant is entitled to claim accident benefits if I find that the ATV was required to be insured under section 15 of the ORVA. If so, it would make it an "automobile" as defined in section 224(1) of the Insurance Act and, therefore, satisfy a key component of an "accident" in section 3 of the Schedule.
9In Adams v. Pineland Amusements Ltd.("Adams"), 2007 ONCA 844, the Court of Appeal adopted the three-part test set out in Grummett v. Federation Insurance Co. of Canada, 1999 CanLII 15103 (ON SC)("Grummett") to determine whether a vehicle is an automobile. Under the Grummett test, a vehicle is an "automobile" when:
- It is an "automobile" in common parlance; or
- It is defined as an "automobile" in a policy of insurance; or
- It falls within any enlarged definition of "automobile" in any relevant statute.
10If any of these questions are answered in the affirmative, then it leads to the conclusion that a vehicle is insurable and qualifies as an "automobile" under the Insurance Act.
The applicant does not meet the Grummett test
11I find that the applicant does not meet the first and second part of the Grummett test. First, I find the ATV is not an automobile because the jurisprudence has established that it is not considered to be an "automobile" in the ordinary sense of the word. See, for e.g., J.T. and Aviva Canada Inc., Re, 2018 CarswellOnt 3075, Unifund Assurance Co. v. Security National Insurance Co., 2016 ONSC 6798, 2016 CarswellOnt 17327 (Ont. S.C.J.) and Motor Vehicle Accident Claims Fund v. Therrien, [2012] O.F.S.C.D. No. 167, 2012 CarswellOnt 16974 (F.S.C.O. App.).
12Further, with regard to the second part of the test, I find that the applicant has not provided any evidence that defines the ATV as an automobile in an insurance policy. In fact, the applicant conceded that there is no independent information to confirm the description of the ATV, the owner of the ATV or the existence of insurance on the vehicle. The respondent submitted the insurance policy of the ATV's owner. The ATV is not covered under this policy. Therefore, I am satisfied that the second part of the test is not met.
13As the applicant has not met the first two parts of the Grummett test, the analysis now turns to the third part. The applicant submits that the ATV on which she was riding was compelled to carry a motor vehicle liability policy on it as per the Insurance Act, the ORVA and the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C. 25. The applicant submits that because of this requirement, the ATV in question is deemed to be an "automobile". Therefore, she was involved in an accident. The applicant does not have any recollection of the incident. In support of her case, she is relying on two Ambulance Call Reports and an image from Google Street Views.
14The respondent submits that the location of where the ATV was operated is paramount because, it will determine whether it required insurance and if it fits within the definition of an automobile. It argues that the ATV would only require insurance if it was being operated on a highway and not on her friend's property. If the ATV requires insurance, then it is an automobile. Conversely, the respondent argues that if the ATV is only operated on the friend's property, then it is not an automobile because, it does not require insurance and therefore, is not an automobile. As such, it cannot be involved in an "accident" as defined by the Schedule.
15I find that the ATV does not fall within an enlarged definition of "automobile". The applicant is relying on references made in the Ambulance Call Reports where it is noted that the applicant was thrown onto a roadway. She asserts that she landed on her left side on the asphalt and bumped her head on the pavement. I do not find the Ambulance Call Reports to be persuasive because the paramedics were not at the scene of the incident. The applicant was inside of her friend's home when the paramedics arrived. The report notes that she was taken into the house after sustaining her injuries.
16The Ambulance Call Reports appear to be based on what the paramedics were told about the incident. The source of this information is unclear, and I find the notes to be vague because they do not specify where the incident took place. Moreover, there are inconsistencies between the paramedic's notes and what the applicant reported in her statutory declaration with respect to how the incident took place. As such, I find that the Ambulance Call Reports do not assist me in determining exactly where the incident took place.
17The applicant also provided a picture of the property from Google Street Views and submits that there is no pavement, asphalt or roadway on the property itself. Therefore, it is her position that on a balance of probabilities, the accident did not occur on the property but rather on the roadway, which would require insurance. I am not persuaded by her argument. The image was captured by Google Street Views in May 2019, but the incident occurred a little over one year later. I find that this image is not an accurate depiction of the property at the time of the incident and assign less weight to it. Furthermore, it does not show the entire property or where the incident took place. The applicant has not provided any compelling evidence that shows that the incident took place on a roadway.
18While I acknowledge that the applicant has had difficulties obtaining evidence from others who were present at the time of the incident, there were other options available to her which could have assisted her in presenting her case to the Tribunal, such as requesting a videoconference hearing, and asking the Tribunal to issue a summons for the individuals who were at the social gathering including her friend who owns the property. Based on the evidence provided by the applicant, I am unable to conclude that the incident took place on a roadway. Therefore, I find she fails on the third part of the Grummett test, as she has not demonstrated that the ATV falls within any enlarged definition of "automobile" in any relevant statute.
19As such, I find that the ATV is not an automobile which was involved in an accident.
ORDER
20The incident that the applicant was involved in on July 12, 2020 is not an accident.
21The application is dismissed.
Released: March 13, 2023
___________________________
Tavlin Kaur
Adjudicator