Copley et al. v. Kerr Farms Limited [Indexed as: Copley v. Kerr Farms Ltd.]

59 O.R. (3d) 346

[2002] O.J. No. 1644

Docket No. C36383

Court of Appeal for Ontario,

Catzman, Doherty and Borins JJ.A.

April 30, 2002

Insurance -- Automobile insurance -- Interpretation and construction -- "Automobile" -- Plaintiff injured while attempting to connect vehicle to tomato wagon for transportation of tomatoes from field to plant -- If device in question is not required to be insured, it is not captured by definition of "automobile" in s. 224(1) of Insurance Act even if it is motor vehicle -- Prohibition in s. 2(1) of Compulsory Automobile Insurance Act speaks only to motor vehicles being operated on highway -- Tomato wagon not required to be insured under Compulsory Automobile Insurance Act as it was not being operated on public highway at time of accident -- Tomato wagon not "automobile" for purposes of s. 267.1(1) of Insurance Act -- Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, s. 2(1) -- Insurance Act, R.S.O. 1990, c. I.8, ss. 224(1), 267.1(1).

The plaintiff was hired by the defendant to haul its tomatoes from the field to a processing plant. He drove his transport truck to the defendant's farm to pick up a load of tomatoes. The tomatoes were in a large container mounted on the back of a 45-foot flatbed trailer. The tub and the trailer (collectively, the "tomato wagon") were owned by the defendant. After backing his truck up to the tomato wagon and connecting the truck's electrical system and air brake lines to it, the plaintiff tried to complete the connection by backing the truck into the tomato wagon so that the fifth wheel of the truck linked with the landing gear of the tomato wagon. The landing gear was too high and the plaintiff had to get out of his truck and manually align the gear by turning the crank attached to the gear. While he was attempting to do so, the crank struck him in the face, causing serious injuries. He brought an action against the defendant alleging that his injuries were caused by a malfunction of the crank or landing gear and that this malfunction was a product of the negligence of the defendant's employees for whom the defendant was liable. If the tomato wagon was an "automobile" within the meaning of s. 267.1(1) of the Insurance Act, R.S.O. 1990, c. I.8, then that section applied and the plaintiff was precluded from recovering damages from the defendant for bodily injury arising out of the use or operation of the tomato wagon. Both parties brought motions asking the court to determine the applicability of s. 267.1 of the Insurance Act. The motions judge held that the tomato wagon was not an automobile for the purposes of s. 267.1(1) of the Insurance Act. The defendant appealed.

Held, the appeal should be dismissed.

"Automobile" is defined in s. 224(1) of the Insurance Act as including "a motor vehicle required under any Act to be insured under a motor vehicle liability policy". The tomato wagon was clearly not an automobile within the ordinary sense of the word. It had no engine and could not move on its own. The question was whether it was "required under any Act to be insured under a motor vehicle liability policy". Counsel for the defendant submitted that the tomato wagon was a motor vehicle as defined in the Compulsory Automobile Insurance Act and that by virtue of s. 2(1) of that Act it was required to be insured under a motor vehicle liability policy. Section 1(1) of the Compulsory Automobile Insurance Act states that "motor vehicle" has the same meaning as the Highway Traffic Act and includes "trailers and accessories and equipment of a motor vehicle". Section 2(1) of the Compulsory Automobile Insurance Act provides that no owner or lessee of a motor vehicle shall operate the motor vehicle or cause or permit it to be operated on a highway unless the motor vehicle is insured. The mere fact that the tomato wagon was a trailer did not suffice to bring it within the definition of motor vehicle in the Compulsory Automobile Insurance Act. It had to be a trailer "of a motor vehicle". The phrase "of a motor vehicle" is meant to draw a distinction between trailers which are under the power and control of a motor vehicle and those which are not. A trailer sitting in the field is not a trailer "of a motor vehicle". Only trailers which are attached to and under the power and control of a motor vehicle can properly be described as "trailers . . . of a motor vehicle". As the tomato wagon was not fully attached to the transport truck when the accident occurred, and was not under the power and control of the truck, it was not a trailer "of a motor vehicle" within the meaning of the Compulsory Automobile Insurance Act when the accident occurred.

The second way in which the tomato wagon could qualify as a motor vehicle within the definition of that phrase in the Compulsory Automobile Insurance Act was by falling within the definition of "motor vehicle" imported from the Highway Traffic Act. The only part of the definition of "motor vehicle" in s. 1(1) of the Highway Traffic Act that could apply to the tomato wagon was the phrase ". . . any other vehicle propelled or driven otherwise than by muscular power . . .". "Vehicle" is defined in s. 1(1) of the Highway Traffic Act as including a "trailer" and "any vehicle drawn, propelled or driven by any kind of power, including muscular power . . .". "Trailer" is defined in s. 1(1) of the Highway Traffic Act as meaning "a vehicle that is at any time drawn upon a highway by a motor vehicle", with certain listed exceptions. The tomato wagon was used regularly to transport tomatoes from the field along public highways to the processing plant and was, therefore, a "vehicle that is at any time drawn upon a highway by a motor vehicle". The tomato wagon was also "propelled or driven otherwise than by muscular power". Unless the tomato wagon came within one of the exceptions to the definition of trailer in the Highway Traffic Act, it was a trailer, and was consequently a vehicle and a motor vehicle as those terms are defined in the Highway Traffic Act. If it was a motor vehicle under the Highway Traffic Act, it was also a motor vehicle for the purposes of the Compulsory Automobile Insurance Act.

However, a finding that the tomato wagon was a motor vehicle within the meaning of the Highway Traffic Act and, therefore, a motor vehicle as defined in the Compulsory Automobile Insurance Act did not suffice to bring the tomato wagon within the definition of "automobile" in s. 224(1) of the Insurance Act: it had to be a motor vehicle that is "required under any Act to be insured under a motor vehicle liability policy". Section 2(1) of the Compulsory Automobile Insurance Act prohibits the operation of a motor vehicle "on a highway" unless that vehicle is insured under an automobile insurance policy". A motor vehicle as defined in the Compulsory Automobile Insurance Act that is not being operated on a public highway is not subject to the prohibition in s. 2(1) and is, therefore, not "required under any Act to be insured under a motor vehicle liability policy". If the device in question is not required to be insured, it is not captured by the definition of automobile in s. 224(1) of the Insurance Act, even if it is a motor vehicle. The tomato wagon was not being operated on the highway when the accident occurred. Section 2(1) of the Compulsory Automobile Insurance Act did not require the defendant to have the tomato wagon insured under an automobile insurance policy at the time and place where the accident occurred. The fact that the tomato wagon was regularly taken on the highway and that the plaintiff intended to take it on the highway as soon as it was hooked up to his truck did not extend the reach of s. 2(1) of the Compulsory Automobile Insurance Act. That section does not prohibit the use of an uninsured motor vehicle intended to be taken on the highway, or regularly used on the highway, or used at any time on the highway. The prohibition in s. 2(1) speaks in terms of a motor vehicle that is operated on the highway. The prohibition speaks only to motor vehicles that are being operated on the highway. Accordingly, the tomato wagon was not an automobile for the purposes of s. 267.1(1) of the Insurance Act.

APPEAL from an order that s. 267.1(1) of the Insurance Act, R.S.O. 1990, c. I.8 did not apply to an accident.

Cases referred to Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC), [1995] 3 S.C.R. 405, 10 B.C.L.R. (3d) 1, 127 D.L.R. (4th) 618, 186 N.R. 150, [1995] 9 W.W.R. 305, [1995] I.L.R. 1-3232, 13 M.V.R. (3d) 302; Bergsma v. Canada (Attorney General), [1994] O.J. No. 2572 (Gen. Div.), affd [1996] O.J. No. 3082 (C.A.); Fortin v. Laplante (2000), 2000 4208 (ON CA), 47 O.R. (3d) 443, 1 M.V.R. (4th) 72 (C.A.); Jevco Insurance Co. v. Commercial Union Assurance Co. (1998), 1998 5865 (ON CA), 42 O.R. (3d) 161, 169 D.L.R. (4th) 151, 42 M.V.R. (2d) 36 (C.A.) (sub nom. Morton v. Rabito) [Leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 50]; Regele v. Slusarczyk (1997), 1997 3648 (ON CA), 33 O.R. (3d) 556, 147 D.L.R. (4th) 294 (C.A.) Statutes referred to Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, ss. 1(1) "automobile insurance""motor vehicle", 2(1) Highway Traffic Act, R.S.O. 1990, c. H.8, s. 1"motor vehicle""trailer""vehicle" Insurance Act, R.S.O. 1990, c. I.8, s. 224(1), 267.1(1) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (a)

Kelly Tranquilli, for appellant. Jerry O'Brien, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I

[1] Is a flatbed trailer used to haul tomatoes from the field to a processing plant, an automobile for the purposes of s. 267.1(1) of the Insurance Act, R.S.O. 1990, c. I.8, as amended, when it is in a farmer's field and in the process of being hooked up to a transport truck?

[2] On motions brought under rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Daudlin J. held that it was not an automobile. I agree and would dismiss the appeal.

II

[3] The plaintiff, Mr. Copley, was hired by the defendant, Kerr Farms Limited ("Kerr Farms") to haul its tomatoes from the fields where they were grown to a processing plant in Leamington, Ontario about forty miles away. On the day of the accident, Mr. Copley drove his transport truck to Kerr Farms' tomato field to pick up a load of tomatoes. The tomatoes were in a large container, referred to as a tomato tub, that was mounted on the back of a forty-five foot flatbed trailer. To avoid using words whose meanings are in issue on this appeal, I will refer to the tub and trailer as the "tomato wagon". Kerr Farms owned the tomato wagon and had a valid Ontario trailer's licence for it.

[4] After arriving in the tomato field, Mr. Copley backed his truck up to the tomato wagon and connected the truck's electrical system and air brake lines to it. Normally, Mr. Copley would have completed the connection of the tomato wagon to the truck by backing the truck into the tomato wagon so that the fifth wheel of the truck linked with the landing gear on the tomato wagon. The landing gear was, however, too high and Mr. Copley had to get out of his truck and manually align the gear by turning the crank attached to the gear. While Mr. Copley was attempting to align the landing gear, the crank struck him in the face, causing serious injuries.

[5] Mr. Copley sued Kerr Farms. He alleges that his injuries were caused by a malfunction of the crank or landing gear and that this malfunction was a product of the negligence of Kerr Farms' employees for whom Kerr Farms is liable.

[6] In the course of the litigation, the issue arose as to whether s. 267.1(1) of the Insurance Act applied to this accident. It provides in part:

267.1(1) Despite any other Act and subject to subsections (2) and (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in a proceeding in Ontario for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile in Canada, . . .

[7] If the tomato wagon is an automobile within the meaning of this section, then s. 267.1(1) applies and Mr. Copley is precluded from recovering damages from Kerr Farms for bodily injury arising out of the use or operation of the tomato wagon. [See Note 1 at end of document] If the section does not apply, Mr. Copley can recover damages for bodily injury provided he can establish the requisite negligence and causation.

[8] Both Mr. Copley and Kerr Farms brought motions asking the court to determine the applicability of s. 267.1 of the Insurance Act. Certain affidavits and Mr. Copley's examination- for-discovery were filed on the motions. The relevant facts were not in dispute. There were two questions:

1. Is the tomato wagon an automobile for the purposes of s. 267.1 of the Insurance Act; and

2. If the tomato wagon is an automobile, did Mr. Copley's bodily injuries arise directly or indirectly from its use or operation? [See Note 2 at end of document]

[9] Daudlin J. held that the tomato wagon is not an automobile for the purposes of s. 267.1(1) of the Insurance Act. He did not, therefore, address the question of whether Mr. Copley's bodily injuries arose directly or indirectly from its use or operation. Based on Daudlin J.'s ruling, Mr. Copley is entitled to pursue his claim against Kerr Farms for damages resulting from his bodily injuries.

III

[10] To the uninitiated, it might seem that defining the word "automobile" in Part VI of the Insurance Act dealing with automobile insurance should be a relatively simple matter. Those familiar with the byzantine nature of insurance legislation know better. To determine what an automobile is for the purposes of s. 267.1(1) of the Insurance Act, one must begin with that Act, travel through the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended, and proceed on to the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended. Even then, the meaning is far from obvious. [See Note 3 at end of document]

[11] The first statutory stop in the search for the meaning of the word "automobile" in s. 267.1(1) is s. 224(1) of the Insurance Act:

224(1) In this Part"automobile" includes a motor vehicle required under any Act to be insured under a motor vehicle liability policy, . . .

[12] The use of the word "includes" signals an intention to expand the scope of the ordinary meaning of the word "automobile" to capture motor vehicles which are not automobiles in the ordinary sense, but which are statutorily required to be insured under a motor vehicle liability policy.

[13] This court has held on several occasions, that defining "automobile" in s. 224(1) of the Insurance Act requires a two-step analysis. First, it must be determined whether the vehicle in issue is an automobile within the ordinary sense of the word. If it is, that is the end of the inquiry, and the vehicle is an automobile for the purposes of s. 267.1(1) of the Insurance Act. If, however, the vehicle is not an automobile within the ordinary sense of the word, then it must be determined whether the vehicle comes within the broadened definition of automobile because it is a motor vehicle that is required by statute to be insured under a motor vehicle liability policy: Regele v. Slusarczyk (1997), 1997 3648 (ON CA), 33 O.R. (3d) 556, 147 D.L.R. (4th) 294 (C.A.); Bergsma v. Canada (Attorney General), [1994] O.J. No. 2572 (Gen. Div.), affd [1996] O.J. No. 3082 (C.A.); Morton v. Rabito, supra, leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 50; Fortin v. Laplante (2000), 2000 4208 (ON CA), 47 O.R. (3d) 443, 1 M.V.R. (4th) 72 (C.A.).

[14] Counsel for Kerr Farms does not suggest that the tomato wagon is an automobile within the ordinary meaning of that word. One look at the pictures of the tomato wagon in the record confirms the wisdom of her position. The tomato wagon has no engine and cannot move on its own.

[15] However, counsel does contend that the tomato wagon is an automobile within the expanded meaning of that word in s. 224(1) of the Insurance Act. For convenience, I will repeat the words in s. 224(1) which expand the meaning of the word automobile beyond its ordinary meaning:

. . . a motor vehicle required under any Act to be insured under a motor vehicle liability policy . . .

[16] She submits that the tomato wagon is a motor vehicle as defined in the Compulsory Automobile Insurance Act and that by virtue of s. 2(1) of that Act it is required to be insured under a motor vehicle liability policy.

[17] The relevant provisions of the Compulsory Automobile Insurance Act are set out below:

1(1) In this Act"automobile insurance" means insurance against liability arising out of bodily injury to or the death of a person or loss of or damage to property caused by a motor vehicle or the use or operation thereof . . .

"motor vehicle" has the same meaning as in the Highway Traffic Act and includes trailers and accessories and equipment of a motor vehicle;

2(1) Subject to the regulations, no owner or lessee of a motor vehicle shall,

(a) operate the motor vehicle; or

(b) cause or permit the motor vehicle to be operated,

on a highway unless the motor vehicle is insured under a contract of automobile insurance.

(Emphasis added)

[18] There are two ways in which the tomato wagon may qualify as a motor vehicle within the definition of that phrase in the Compulsory Automobile Insurance Act. First, it may fall within the "trailers . . . of a motor vehicle" portion of the definition. Second, it may fall within the definition of "motor vehicle" imported from the Highway Traffic Act.

[19] The definition of motor vehicle "includes trailers . . . of a motor vehicle". The word "trailer" is not defined in the Compulsory Automobile Insurance Act and unlike the phrase "motor vehicle", the definition of "trailer" in the Highway Traffic Act is not imported into the Compulsory Automobile Insurance Act. I think "trailer", in the Compulsory Automobile Insurance Act, should be given its ordinary meaning which I understand to be a device designed to be drawn along by a motor vehicle. The tomato wagon is a trailer within that ordinary meaning.

[20] However, the mere fact that the tomato wagon is a trailer does not suffice to bring the wagon within the definition of motor vehicle in the Compulsory Automobile Insurance Act. It must be a trailer "of a motor vehicle". I think the phrase "of a motor vehicle" is meant to draw a distinction between trailers which are under the power and control of a motor vehicle and those which are not. A trailer sitting in the field is not a trailer "of a motor vehicle". In my view, only trailers which are attached to and under the power and control of a motor vehicle can properly be described as "trailers . . . of a motor vehicle".

[21] Mr. Copley's transport truck was clearly a motor vehicle as defined in the Compulsory Automobile Insurance Act. The tomato wagon was not, however, fully attached to the transport truck when the accident occurred. It could not be drawn by the transport truck and was not under the power and control of the truck. Consequently, it was not a trailer "of a motor vehicle" within the meaning of the Compulsory Automobile Insurance Act when the accident happened.

[22] The second way in which the tomato wagon might be said to be a motor vehicle within the definition set out in the Compulsory Automobile Insurance Act requires reference to certain definitions found in the Highway Traffic Act.

[23] "Motor vehicle" is defined in s. 1(1) of the Highway Traffic Act as follows:

"motor vehicle" includes an automobile, motorcycle, motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car, or other motor vehicles running only upon rails, or a motorized snow vehicle, traction engine, farm tractor, self-propelled implement of husbandry or road-building machine within the meaning of this Act;

(Emphasis added)

[24] The only part of the definition of "motor vehicle" that could apply to the tomato wagon is the phrase:

. . . any other vehicle propelled or driven otherwise than by muscular power . . .

[25] "Vehicle" is defined in s. 1(1) of the Highway Traffic Act in these terms:

"vehicle" includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car;

(Emphasis added)

[26] The definition of "vehicle" leads to the definition of "trailer" in s. 1(1) of the Highway Traffic Act:

"trailer" means a vehicle that is at any time drawn upon a highway by a motor vehicle, except an implement of husbandry, a mobile home, another motor vehicle or any device or apparatus not designed to transport persons or property, temporarily drawn, propelled or moved upon such highway, and except a side car attached to a motorcycle, and shall be considered a separate vehicle and not part of the motor vehicle by which it is drawn;

(Emphasis added)

[27] The tomato wagon was used regularly to transport tomatoes from the field along public highways to the processing plant and is, therefore, a "vehicle that is at any time drawn upon a highway by a motor vehicle". The tomato wagon was also "propelled or driven otherwise than by muscular power". Unless the tomato wagon comes within one of the exceptions to the definition of trailer in the Highway Traffic Act, it is a trailer, and is consequently a vehicle and a motor vehicle as those terms are defined in the Highway Traffic Act. If it is a motor vehicle under the Highway Traffic Act, it is also a motor vehicle for the purposes of the Compulsory Automobile Insurance Act.

[28] Counsel for Mr. Copley submits that the tomato wagon is "an implement of husbandry", that it falls within that exception to the definition of "trailer" in the Highway Traffic Act, and that it is consequently not a vehicle or a motor vehicle under the Highway Traffic Act. Counsel for Kerr Farms contends that the record before the motion judge does not provide an adequate basis for a determination of whether the tomato wagon is "an implement of husbandry" and that the motion judge erred in taking judicial notice of certain facts in arriving at the conclusion that the tomato wagon is "an implement of husbandry".

[29] I need not decide whether the tomato wagon is "an implement of husbandry". In my view, even if the tomato wagon is a motor vehicle as that phrase is defined in the Highway Traffic Act, the appeal must still fail.

[30] A finding that the tomato wagon is a motor vehicle within the meaning of the Highway Traffic Act and, therefore, a motor vehicle as defined in the Compulsory Automobile Insurance Act does not suffice to bring the tomato wagon within the definition of "automobile" in s. 224(1) of the Insurance Act. It must be a motor vehicle that is "required under any Act to be insured under a motor vehicle liability policy".

[31] Section 2(1) of the Compulsory Automobile Insurance Act prohibits the operation of a motor vehicle "on a highway" unless that vehicle is insured under an automobile insurance policy. That prohibition creates the requirement referred to in s. 224(1) of the Insurance Act. A motor vehicle as defined in the Compulsory Automobile Insurance Act that is not being operated on a public highway is not subject to the prohibition in s. 2(1) and is, therefore, not "required under any Act to be insured under a motor vehicle liability policy". If the device in question is not required to be insured, it is not captured by the definition of automobile in s. 224(1) of the Insurance Act, even if it is a motor vehicle.

[32] The tomato wagon was not being operated on the highway when the accident occurred. Section 2(1) of the Compulsory Automobile Insurance Act did not require Kerr Farms to have the tomato wagon insured under an automobile insurance policy at the time and place where the accident occurred. The fact that the tomato wagon was regularly taken on the highway and that Mr. Copley intended to take it on the highway as soon as it was hooked up to his truck does not extend the reach of s. 2(1) of the Compulsory Automobile Insurance Act. That section does not prohibit the use of an uninsured motor vehicle intended to be taken on the highway, or regularly used on the highway, or used at any time on the highway. The prohibition in s. 2(1) speaks in terms of a motor vehicle that is operated on the highway. As I read the section, the prohibition speaks only to motor vehicles that are being operated on the highway.

[33] Counsel for Kerr Farms, in her able submissions, contended that a reading of the prohibition in s. 2(1) of the Compulsory Automobile Insurance Act as applying only when the motor vehicle was being operated on a highway, had the potential, when read with the closing words of s. 224(1) of the Insurance Act, to significantly limit the definition of automobile in the Insurance Act and create situations in which actual automobiles are removed from that definition. Her submission ignores the fact that the Compulsory Automobile Insurance Act is relevant to the definition of automobile in the Insurance Act only if the device in question is not an automobile within the ordinary meaning of the word. If the device is captured by the ordinary meaning of the word, it is an automobile for the purposes of Part VI of the Insurance Act whether or not the prohibition in s. 2(1) of the Compulsory Automobile Insurance Act applies.

[34] Counsel also submits that my analysis (and the somewhat different analysis of Daudlin J. that leads to the same result) creates distinctions which do not serve the policy underlying s. 267.1(1) of the Insurance Act. In her submission, s. 267.1(1) is clearly intended to limit an injured person's right to recover damages from the owner of an automobile for injuries arising directly or indirectly from the use or operation of an automobile. She argues that this policy is not served by drawing distinctions between accidents that occur on a highway, and those that occur elsewhere, and distinctions based on whether a trailer is fully or only partly connected to an automobile at the time of the accident.

[35] Clearly, s. 267.1(1) has the purpose described by counsel. It is equally clear, however, that that purpose is engaged only where the injury arises directly or indirectly from the use or operation of an automobile. The legislature, through s. 224(1), has made it clear that the word "automobile" in s. 267.1 has a broader meaning than its ordinary everyday meaning. Unfortunately, the means used by the legislature to describe that broader meaning create interpretative difficulties. Like my colleague Catzman J.A. in Morton v. Rabito, supra, at pp. 172-73 O.R., I confess to uncertainty as to just how far the legislature intended to extend the policy reflected in s. 267.1(1). That uncertainty flows directly from the difficulty in defining the word "automobile".

[36] Given my difficulty in finding the meaning of the word "automobile" as it is used in s. 267.1(1) of the Insurance Act, I cannot say with any confidence that the result I have arrived at furthers the legislative intention underlying that section. The most I can say is that I see some logic in holding that the provisions dealing with "automobile insurance" should have only a limited application to vehicles like this tomato wagon. It is arguable that it is only when the tomato wagon is attached to a motor vehicle and is being pulled along a highway that it sufficiently resembles an automobile to warrant its inclusion in provisions dealing with automobile insurance.

[37] For the reasons set out above, I reach the same conclusion as Daudlin J. The tomato wagon was not an automobile for the purposes of s. 267.1(1) of the Insurance Act.

IV

[38] Given my conclusion that the tomato wagon is not an automobile, it is not necessary to determine whether Mr. Copley's bodily injuries arose directly or indirectly from the use or operation of the tomato wagon. For the sake of completeness, however, I will address that issue briefly.

[39] For the purposes of this question, it must be assumed that the tomato wagon was an automobile when the accident occurred. Based on this assumption, I have no doubt that Mr. Copley's bodily injuries arose directly or indirectly from the use or operation of the tomato wagon. Those injuries occurred while the tomato wagon was being connected to the truck. Connecting the tomato wagon to the truck so that the truck could pull the wagon is an integral part of the use of the tomato wagon. Indeed, it is an essential step in the process of using or operating the tomato wagon. Connecting the tomato wagon to the truck is as much a use of the tomato wagon as the starting of an automobile is a use of an automobile. Applying the principles set down in Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC), [1995], 3 S.C.R. 405, 127 D.L.R. (4th) 618, and assuming that the tomato wagon is an automobile, I would hold that Mr. Copley's injuries arose directly or indirectly from the use or operation of the tomato wagon.

V

[40] I would dismiss the appeal with costs on a partial indemnity scale. Having considered the bill of costs submitted by counsel for Mr. Copley, and the nature of the appeal, I would fix those costs at $8,000, inclusive of disbursements and GST.

Appeal dismissed.

Notes

Note 1: Section 267.1(2) permits recovery of non-pecuniary damages from the owner of the automobile in the circumstances specified in that section. The responsibility of Mr. Copley's own automobile insurer for first-party benefits is not in issue in these proceedings.

Note 2: Kerr Farms also argued that the involvement of Mr. Copley's truck in the incident could engage s. 267.1(1). Daudlin J. rejected that argument and it is not renewed on appeal.

Note 3: This court has previously observed that a self-contained definition of automobile in the applicable parts of the Insurance Act would substantially clarify the legislature's intent with respect to the reach of thos provisions: Morton v. Rabito (1998), 1998 5865 (ON CA), 42 O.R. (3d) 161 at pp. 172-73, 169 D.L.R. (4th) 151 (C.A.).