Zhou v. The Dominion of Canada General Insurance Company, 2025 CanLII 114347

Citation: Zhou v. The Dominion of Canada General Insurance Company, 2025 ONLAT 23-012710/AABS

Licence Appeal Tribunal File Number: 23-012710/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:

Yue Chao Zhou

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: John Mazzilli

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

For the Respondent: James Armstrong, Counsel

HEARD: By way of written submissions

OVERVIEW

1Yue Chao Zhou (the “applicant”) was involved in an incident on February 19, 2022, 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 Dominion of Canada General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was a pedestrian walking in the parking lot of Conestoga Mall in the city of Waterloo and was struck by a reversing snow plow, no other vehicle was involved in the incident. The snow plow tractor in this case is a backhoe with a snow plow attached in the front which was being used to remove snow. The determinative issue is whether the snow plow tractor or backhoe is an automobile as this term is defined under s.224(1) of the Insurance Act?

PRELIMINARY ISSUE

3Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?

ISSUES

4The substantive issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from February 27, 2023, to ongoing?

iii. Is the applicant entitled to the assessments proposed by Somatic Assessments & Treatment Clinic, as follows:

1. $3,702.88 for a psychological services assessment, in a treatment plan, submitted on June 9, 2023.

2. $2,200.00 for an attendant care assessment, in a treatment plan submitted on March 1, 2023; and,

3. $2,200.00 for a psychological cross examination assessment, in a treatment plan submitted June 7, 2023?

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

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant was not involved in an “accident” as defined in section 3(1) of the Schedule. The applicant is not entitled to any of the benefits in dispute. The application is dismissed.

ANALYSIS

Section 3(1) does not define automobile

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 Schedule does not define an automobile; To determine if an accident occurred in accordance with s.3(1) of the Schedule my analysis will focus on the relevant statutes that apply in determining if the snow plow tractor/backhoe is an automobile. If a snow plow tractor/backhoe with a plow attachment is not an automobile, then an accident in accordance with the Schedule did not occur and it follows that I do not have the statutory authority to award the disputed benefits.

Is the tractor/backhoe with a snow plow attachment an automobile

8I find that the tractor/backhoe with a snow plow attachment is not an automobile and as such, an accident as defined by the Schedule did not occur.

9The applicant submits that the backhoe does not fall in the exclusions listed under the definition of a “motor vehicle” according to The Highway Traffic Act (“HTA”) but rather the backhoe in question falls under the definition of a “commercial motor vehicle” because it submits that the backhoe is on a tractor chassis and is capable of being driven on a highway and street on its own.

10The applicant further submits that since a backhoe is a motor vehicle under the HTA, then it would also qualify for automobile insurance under the Compulsory Automobile Act (“CAIA”).

11The respondent argues that the snow plow tractor involved in this incident is not an automobile based on any of the three criteria set out in Adams v. Pineland Amusement Ltd, 2007 ONCA 884 (“Adams”) and that the Ontario Court of Appeal has previously concluded that a farm tractor and backhoe were not automobiles in Regele v. Slusarczyk, 1997 CanLII 3648 (ON CA) (“Regele”) and Morton v. Rabito, 1998 CanLII 5865 (ON CA) (“Morton”) and that these cases remain binding on the Tribunal.

12In Adams the Judge considers a three-part test to determine if a vehicle is considered an “automobile”. In his reply to submissions the applicant argues that the respondent did not disclose its intention to argue Adams because it did not inform the applicant in its denial letter or at the case conference that it would rely on the Adams test.

13I do not accept the applicant’s submissions that I ought to disregard the respondent’s argument in Adams because it was not disclosed at the case conference or in its denial letter because, the respondent need not disclose case law it relies upon at the hearing in its denial letter or at the case conference. In addition, the applicant had an opportunity to make submissions in his reply to submissions, however he did not, which further undermines his position because I cannot disregard Adams, as Adams is case law that I am also bound by.

14It is important to note that the applicant did not address the three-part test set out in Adams in his reply to submissions. The applicant’s submissions on whether the backhoe was an automobile focused on the definitions of an automobile/motor vehicle under other Acts. Therefore, I have considered the applicant’s submissions in the context of the third step of the Adams Test. It is also important to note that satisfying one part of the Adams tests is sufficient to establish that the backhoe is an automobile.

15The three-part test set out in Adams on whether a particular vehicle is an “automobile” is as follows:(i) Is the vehicle an automobile in ordinary parlance? (ii) If not, is the vehicle defined as an automobile in the wording of the insurance policy? (iii) if not, does the vehicle fall within an enlarged definition of an automobile in any relevant statute?

Ordinary Parlance

16Adams looks at the “ordinary parlance,” which generally speaks to the purpose and function of the vehicle within the context of being capable of the transportation of passengers on streets and highways. In this case the photographs provided, and the police report show that the backhoe is equipped with a snow plow and was operating in ordinary parlance with the intention of clearing snow in the parking lot and not intended to carry passengers or goods on typical roadways.

17Therefore, as the backhoe in question was operating to clear snow in the parking lot at the time of the incident, I find on a balance of probabilities that the snow plow was being used in ordinary parlance with the intention of clearing snow at the time of the incident.

Defined as an Automobile by the insurance policy

18The snow plow in question is not defined as an automobile in the wording of its insurance policy; rather the snow plow tractor in question is insured under a commercial general liability policy and it is not listed as an automobile on the policy issued to its owners.

19The backhoe snow plow is not listed as a defined automobile on any motor vehicle liability submitted to the Tribunal. This is corroborated by the applicant’s statement of claim based on the Occupier’s Liability Act. The applicant’s statement of claim refers to the backhoe in question as a “snow plow.” The respondent raised the statement of claim in its submissions; however, the applicant did not address the statement of claim or the insurance policy in his reply to submissions. I find on a balance of probabilities that the backhoe/tractor with a snow plow attachment is not defined as an automobile in the wording of the insurance policy.

Automobile based on enlarged definition of any relevant statute

20The backhoe snow plow does not meet the enlarged definition of an automobile or motor vehicle in any relevant statute.

21The parties agree that there are several pieces of legislation to guide my deliberation. There are two acts in Ontario that require a vehicle to be insured under a motor vehicle liability policy. The Compulsory Automobile Insurance Act (“CAIA) and the Off-Road Vehicle Act (“ORVA”).

22The CAIA and the HTA define a motor vehicle as having the same meaning, namely defining “motor vehicle” as a automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated under those Acts, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self propelled implement of husbandry or a road-building machine.

23Regulation made under the HTA O.Reg.398/16, provides further clarity to exemptions of Road Building Machines. This regulation defines a tracked and wheeled tractor, other than truck tractors, while equipped with snow blowers or snowplows, buckets, or shovels as exemptions.

24The applicant submits that a backhoe does not fall under the exclusions listed under the definition of a “motor vehicle” under the HTA, because it falls in the any other vehicle propelled or driven otherwise than by muscular power as it is a four wheeled vehicle propelled or driven otherwise than by muscular power and design or adapted for use on highways and streets. He further submits that the backhoe is on a tractor chassis and is capable of being driven on a highway and street on its own. I disagree for the following reasons.

25The Ontario Court of Appeal has found that a farm tractor and a backhoe are not automobiles in Regele and Morton. While the applicant submits that a broader interpretation should be used because s. 224 of the Insurance Act uses the word “includes” instead of “meaning” when interpreting an automobile. I am bound by Morton in which the Ontario Court of Appeal found that there is no relevant distinction between a farm tractor and a backhoe within s. 224(1) of the Insurance Act. Therefore, if there is no relevant distinction between a farm tractor and a backhoe ,then a backhoe with a snow plow attachment satisfies the exemption within s.224(1).

26As the snow plow backhoe is listed as an exemption in the HTA under a traction engine, a farm tractor, a road-building machine, and because it is further distinguished as an exemption under HTA O. Reg.398/16 as a tracked and wheeled tractor, other than truck tractors, while equipped with snow blowers or snowplows, buckets, or shovels. Therefore the snow plow tractor in accordance with the HTA does not meet the requirement of the enlarged definition of an automobile or a motor vehicle.

27I find on a balance of probabilities that a backhoe with a snow plow attachment is not an automobile and as such an accident in accordance with s.3(1) of the Schedule did not occur.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.

Award

29The 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.

30The applicant submits that the respondent unreasonably withheld income replacement benefits and medical and rehabilitation benefits from the applicant and is therefore entitled to an award in accordance with s.51 of the Schedule.

31Having found that the incident was not an accident in accordance with the Schedule, I find that the respondent did not withhold any of the disputed benefits from the applicant, and accordingly the applicant’s request for an award is denied.

ORDER

32It is ordered that:

i. The applicant was not involved in an “accident” as defined in section 3(1) of the Schedule. As such the applicant is not entitled to any of the benefits in dispute. The application is dismissed.