Fortin v. Laplante

47 O.R. (3d) 443

[2000] O.J. No. 414

Docket No. C33180

Court of Appeal for Ontario

Finlayson, Labrosse and Goudge JJ.A.

February 24, 2000

*Application for leave to appeal to the Supreme Court of Canada was dismissed without reasons November 9, 2000. (Gonthier, Binnie and Arbour JJ.) S.C.C. Bulletin, 2000, p. 2012.

Insurance -- Automobile insurance -- Definitions -- "Automobile" -- Snowmobile not falling within definition of "automobile" in s. 224(1) of Insurance Act -- Insurance Act, R.S.O. 1990, c. I.8, s. 224(1).

The plaintiff sued the defendant for damages for injuries allegedly caused by the defendant's negligent operation of a snowmobile. On a motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motions judge declared that a snowmobile does not fall under the definition of "automobile" in s. 224(1) of the Insurance Act. The defendant appealed.

Held, the appeal should be dismissed.

Section 224(1) of the Act defines "automobile" as including "a motor vehicle required under any Act to be insured under a motor vehicle liability policy". The Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 defines "motor vehicle" by incorporating the Highway Traffic Act definition, which expressly excludes a motorized snow vehicle. A snowmobile is not, therefore, encompassed by the phrase "motor vehicle" and, hence, is excluded from the definition of "automobile" in s. 224(1) of the Insurance Act.

APPEAL from an order of O'Neill J. declaring that a snowmobile does not fall under the definition of "automobile" in s. 224(1) of the Insurance Act, R.S.O. 1990, c. I.8.

Statutes referred to Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, s. 1 "motor vehicle" Highway Traffic Act, R.S.O. 1990, H.8 Insurance Act, R.S.O. 1990, c. I.8 (am. 1993, c. 10, s. 25; 1996, c. 21, s. 28), ss. 224(1), 267, 267.1 Motorized Snow Vehicles Act, R.S.O. 1990, c. M.44 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21

Michael S. O'Neill, for appellant. Eric D. McCooeye, for respondent.

The judgment of the court was delivered by

[1] GOUDGE J.A.: -- The defendant Laplante appeals from the order of O'Neill J. made pursuant to Rule 21 declaring that a snowmobile does not fall under the definition of "automobile" in s. 224(1) of the Insurance Act, R.S.O. 1990, c. I.8.

[2] The respondent questions the jurisdiction of this court to hear the appeal. The order appealed from is a declaration made under Rule 21 finally disposing of an issue of law. It is not an order for the payment of money nor an order dismissing such a claim. The appeal is properly made to this court.

[3] In this action the respondent has sued the appellant to recover damages for injuries suffered by the respondent alleged to be caused by the appellant's negligent operation of a snowmobile in Blind River, Ontario.

[4] We were advised during argument that the appellant's snowmobile is covered under his motor vehicle liability policy and that the respondent has been paid no fault benefits by the insurer.

[5] We were also advised that the practical purpose in bringing this motion was to determine whether in this negligence action the appellant will benefit as defendant from the nonpecuniary loss threshold and deductible provisions found in s. 267.1 of Part VI of the Insurance Act. For that to occur the appellant must be, in the language of that section, "the owner of an automobile" that caused the damage.

[6] O'Neill J. concluded that the definition of "automobile" found in s. 224(1) of the Act does not include "snowmobile". That section provides the definitions for Part VI of the Insurance Act. It reads as follows:

224(1) In this Part,

"automobile", includes a motor vehicle required under any Act to be insured under a motor vehicle liability policy;

[7] I agree with the conclusions of O'Neill J. and with his reasoning.

[8] As he said, in ordinary parlance, one does not refer to a snowmobile as an automobile or even a motor vehicle. He then looked to the legislation which requires a motor vehicle to be insured under a motor vehicle liability policy, namely, the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25. That Act defines "motor vehicle" by incorporating the Highway Traffic Act definition which expressly excludes a motorized snow vehicle. Folding this back into s. 224(1) of the Insurance Act, O'Neill J. concluded that a snowmobile is not encompassed by the phrase "motor vehicle" and hence is excluded from the definition of "automobile" found in s. 224(1).

[9] Finally, O'Neill J. acknowledged that the Motorized Snow Vehicles Act, R.S.O. 1990, c. M.44 prohibits a person from driving a snowmobile unless he is insured under a motor vehicle liability policy in accordance with the Insurance Act. However, he concluded that this does not make a snowmobile either an automobile or a motor vehicle for the purposes of the Insurance Act.

[10] As I have said, I agree with this reasoning. If the consequences of this conclusion are that as a matter of statute or contractual interpretation a person injured by a snowmobile rather than an automobile may be entitled both to no fault benefits and to sue in tort without facing either the threshold or the deductible provisions of s. 267 of the Insurance Act that is an issue of policy for the legislature. It does not, in my view, alter the correct statutory interpretation.

[11] The appeal must be dismissed with costs.

Appeal dismissed.