Citation: Carpenter v. Intact Insurance Company, 2024 ONLAT 22-011554/AABS

Licence Appeal Tribunal File Number: 22-011554/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:

Richard Carpenter

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Paul Oddi, Counsel

For the Respondent:

Mikhail Shloznikov, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Richard Carpenter, the applicant, was walking on a public roadway on January 18, 2020, when he was struck by a Caterpillar 930K wheel loader (the “Caterpillar”). The Caterpillar was affixed with a snow plow, and was travelling from the yard of a property maintenance company to a job site to perform winter maintenance.

2The applicant sought benefits from the respondent, Intact Insurance Company, 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, who advised him that a wheel loader is not an automobile and therefore the incident was not an “accident” pursuant to s. 3(1) of the Schedule. The applicant subsequently applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Was the applicant involved in an “accident” as defined in s. 3(1) of the Schedule? Specifically, is the Caterpillar that struck the applicant an “automobile” as defined in s. 3 of the Schedule?

ii. Is the respondent liable to pay a special award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4The applicant was involved in an “accident” as defined by s. 3(1) of the Schedule, as he was struck by an automobile.

5The respondent is not liable to pay an award.

ANALYSIS

6Section 3(1) of the Schedule defines an “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.

7The definition of “automobile” is not set out in the Schedule. In Adams v. Pineland Amusement Ltd. et al., 2007 ONCA 844 (“Adams”), the Ontario Court of Appeal applied the following three-part test to determine if a vehicle is considered an “automobile”:

i. Is the vehicle an “automobile” in ordinary parlance?

ii. If not, then is the vehicle defined as an “automobile” in the wording of the insurance policy?

iii. If not, then does the vehicle fall within any enlarged definition of “automobile” in any relevant statute?

8For the reasons below, I find that the Caterpillar is an “automobile” in ordinary parlance, and as such I need not address the other prongs of the test.

9The applicant relies on Grummett v. Federation Insurance Co. of Canada, 1999 CanLII 15103 (“Grummett”), where the Ontario Superior Court of Justice held that, when determining whether a vehicle is an automobile in ordinary parlance, it is appropriate to consider the purpose and function of the vehicle. The Court determined that a race car in that case was not an automobile, as it was designed for competitive racing and no other purpose, did not have any head lights, brake lights, or doors, and the accident did not occur on a public road.

10I am bound by Grummett, and also find that it is applicable to the case before me. The Caterpillar had been driving on a public roadway for over seven kilometres prior to the accident occurring. It was not loading anything or using its plow, which was in the upright position. According to the product specifications, it had the capability of driving up to 40 km/hr. It was equipped with a driver’s seat, tire clad wheels, steering wheel, braking system, lights, signal lights, speedometer, seatbelt, GPS system, enclosed driver compartment, mirrors, and radio. All of these factors persuade me that the purpose and function of the Caterpillar at the time of the accident was to behave like an automobile. Accordingly, I find that it was an automobile in ordinary parlance.

11I am further persuaded by the fact that the police officer who attended the scene of the accident asked the driver for his license and automobile insurance and prepared a motor vehicle accident report. Although this is not determinative of the issue, I find that it illustrates how someone else on the roadway viewed the vehicle, which gives credence to the fact that it was an automobile in ordinary parlance.

12The respondent submits that the fact that a wheel loader can have wheels, doors, signal lights, GPS, and can travel on roads does not make it an automobile or akin to one. While I agree that this would not always classify a vehicle as an automobile, the respondent did not address the purpose and function of this particular vehicle in accordance with Grummett. One of the purposes and functions of the Caterpillar, which it was engaging in at the time of the accident, was to drive on a roadway in a manner akin to an automobile. I am accordingly not persuaded by the respondent’s argument.

13Both parties make reference to Morton v. Rabito, 1998 CanLII 5865 (“Morton”). The Court noted that in a previous case, a farm tractor was found not to be an automobile in ordinary parlance, and analogized that a backhoe was therefore also not an automobile in ordinary parlance. I do not find Morton helpful in determining this issue, as it was decided prior to Grummett, and no analysis was conducted with respect to the purpose and function of the backhoe.

14The respondent submits that the applicant agrees that a wheel loader is not an automobile in ordinary parlance. I do not agree that the applicant has conceded this issue. Although he stated that “the Caterpillar 930K would not normally be considered an automobile in ordinary parlance”, he subsequently relied on the paragraph of Grummett that dealt with the determination of whether a vehicle is an automobile in ordinary parlance, and made submissions regarding the purpose and function of the Caterpillar. Regardless, the respondent still put forward its position with respect to this issue.

15I find that the Caterpillar was an automobile, and as such the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule.

Award

16The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

17Aside from listing it as an issue in dispute, the applicant did not make any submissions in support of an award. In any event, I have not determined that any particular benefits are payable. As such, I find that the respondent is not liable to pay an award.

ORDER

18The applicant was involved in an “accident” as defined by s. 3(1) of the Schedule, as he was struck by an automobile.

19The respondent is not liable to pay an award.