McIntyre, Executrix of the Estate of Joseph McIntyre et al. v. Scott et al. [Indexed as: McIntyre Estate v. Scott]

68 O.R. (3d) 45

[2003] O.J. No. 3997

Docket No. C37480

Court of Appeal for Ontario

Weiler, Feldman and Sharpe JJ.A.

October 17, 2003

Insurance -- Automobile insurance -- Interpretation and construction -- Plaintiff struck by uninsured automobile as she was retrieving clothing from saddlebag on parked motorcycle -- Plaintiff was "occupant" of motorcycle at time of accident -- Section 224(1) of Insurance Act defining "occupant" as including "passenger, whether being carried in or on the automobile" -- Words "whether being carried in or on the automobile" not limiting "passenger" to person actually engaged in physical activity of being in or on motorcycle at time of accident -- Test for whether person is "passenger" under s. 224(1) of Act is whether objective observer if asked would answer affirmatively that person was passenger of vehicle -- Objective observer would describe plaintiff as passenger of motorcycle at time she was struck by uninsured driver -- Insurance Act, R.S.O. 1990, c. I.8, s. 224(1).

The plaintiff was travelling as a passenger on a motorcycle driven by her husband when a rainstorm started. They stopped and took shelter under an overpass. As the plaintiff approached the motorcycle to retrieve some dry clothing from a saddlebag, an uninsured motorist struck her and her husband, killing him and seriously injuring her. At the time of the accident, the plaintiff was not mounted on or operating the motorcycle. Her husband was a named insured in a policy taken out on the motorcycle with J Co. He was also the named insured in a policy taken out with P Co. on two other family vehicles. Section 268(5.2) of the Insurance Act provides that if more than one policy provides coverage, the claim is to be made against the insurer of the automobile in which the person was an "occupant". Section 224(1) of the Act defines "occupant" as meaning the driver, a passenger, whether being carried in or on the automobile, or a person getting into or on or getting out of or off the automobile. On a motion under rule 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to determine a question of law, the motions judge ruled that the plaintiff was not an "occupant" and therefore was covered under both policies. P Co. appealed.

Held, the appeal should be allowed.

The motions judge erred in reading the words "whether being carried in or on the automobile" as limiting the word "passenger" to a person actually engaged in the physical activity of being in or on the motorcycle at the time of the accident. When determining whether a person is a passenger under s. 224(1), the question is: would an objective observer answer affirmatively if asked that the person was a passenger on the vehicle? In this case, an objective observer of the accident would describe the plaintiff as a passenger of the motorcycle at the time she was struck by the uninsured driver. Her presence at the scene of the accident was entirely explained by the fact that she was a passenger on the motorcycle. She and her husband had stopped by the roadside to avoid the rain. She intended to resume the journey as soon as the rain stopped. She remained in close proximity to the motorcycle and did not leave it for any other purpose. Finally, she did not engage in any other activity except to wait for the rain to abate. [page46]

APPEAL from an order of a motions judge on a motion to determine a question of law.

Axa Insurance Co. v. Markel Insurance Co. of Canada, 2001 24143 (ON CA), [2001] I.L.R. ÂI-3967, [2001] O.J. No. 294 (QL), 9 M.V.R. (4th) 74, 140 O.A.C. 109, 26 C.C.L.I. (3d) 199 (C.A.), apld Kyriazis v. Royal Insurance Co. of Canada (1993), 1993 9409 (ON CA), 107 D.L.R. (4th) 288n, [1994] I.L.R. Â1-3051 (Ont. C.A.), affg (1991), 1991 8318 (ON SC), 82 D.L.R. (4th) 691, [1992] I.L.R. Â1-2786, 31 M.V.R. (2d) 238 (Ont. Gen. Div.), not folld Other 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. Â1-3232, 13 M.V.R. (3d) 302 Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, ss. 224(1), 265(2)(c), 268(5.2) Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01 Authorities referred to Ontario, Legislative Assembly, Official Report of Debates (Hansard), 4 (23 October 1989) at 3176 (Hon. Murray J. Elston)

Rita Bambers, for appellant. Chris T. Blom, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- This appeal involves a dispute between two insurance companies over coverage. It turns on whether or not Deborah McIntyre was the "occupant" of a motorcycle within the meaning of the Insurance Act, R.S.O. 1990, c. I.8, s. 224(1), when she was struck by an uninsured driver.

[2] On July 27, 1997, Deborah McIntyre was travelling on the Don Valley Parkway in Toronto on a motorcycle driven by her husband Joseph McIntyre. When a rainstorm started, they stopped and dismounted under an overpass for shelter. They both waited on an embankment in close proximity to the motorcycle, intending to resume their journey as soon as the rain cleared. Just as Deborah McIntyre approached the motorcycle to retrieve some dry clothing from a saddlebag, an uninsured motorist struck them both. Joseph McIntyre was killed and Deborah McIntyre was seriously injured. At the time of the accident, Deborah McIntyre was not mounted on or operating [page47 ]the motorcycle, and it was not clear whether she was touching the vehicle.

[3] Joseph McIntyre was a named insured in a policy taken out on the motorcycle with the respondent Jevco Insurance Company ("Jevco"). He was also the named insured in a policy taken out with the appellant Pilot Insurance Company ("Pilot") on two other family vehicles. Both policies contain the statutorily required coverage for claims against the owners and operators of uninsured automobiles.

[4] The Insurance Act, s. 265(2)(c) defines a "person insured under the contract" in respect of claims for bodily injuries to be

(i) any person while an occupant of the insured automobile,

(ii) the insured and his or her spouse or same-sex partner and any dependent relative of either,

(A) while an occupant of an uninsured automobile, or

(B) while not the occupant of an automobile or of railway rolling stock that runs on rails, who is struck by an uninsured or unidentified automobile . . .

[5] Section 268(5.2) provides that if more than one policy provides coverage, the claim is to be made against the insurer of the automobile in which the person (either the person insured, spouse or same-sex partner or dependent of the insured) was an "occupant". Accordingly, if Deborah McIntyre was an "occupant", Jevco is solely liable for her claim. If she was not an "occupant", liability for her claim is to be shared between Jevco and Pilot.

[6] The Insurance Act, s. 224(1) defines "occupant" as follows:

224(1) In this part,

"occupant", in respect of an automobile, means,

(a) the driver,

(b) a passenger, whether being carried in or on the automobile,

(c) a person getting into or on or getting out of or off the automobile[.]

[7] This matter was presented to Ferguson J. as a motion under rule 21.01 [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] to determine a question of law. He ruled that Deborah McIntyre was not an "occupant" and therefore was covered under both policies. Pilot appeals to this court. [page48 ]

Issue

[8] Was Deborah McIntyre the "occupant" of a motorcycle within the meaning of s. 224(1) when she was struck and injured by the uninsured motorist?

Analysis

[9] The motions court judge found that according to the plain meaning of s. 224(1), and on the authority of the decision of this court in Axa Insurance Co. v. Markel Insurance Co. of Canada (2001), 2001 24143 (ON CA), 140 O.A.C. 109, 9 M.V.R. (4th) 74 (C.A.), Ms McIntyre could not be considered an occupant as she was not physically "in or on" the motorcycle at the time of the accident. He read the words "whether being carried in or on the automobile" as limiting the word "passenger" to a person actually engaged in the physical activity of being in or on the motorcycle at the time of the accident. For the following reasons, I respectfully disagree with the motions court judge's interpretation and conclude that, at the time of the accident, Ms McIntyre was an "occupant" of the motorcycle within the meaning of s. 224(1).

[10] There are two decisions of this court to be considered. In Kyriazis v. Royal Insurance Co. of Canada (1991), 1991 8318 (ON SC), 82 D.L.R. (4th) 691, 31 M.V.R. (2d) 238 (Ont. Gen. Div.), affd (1993), 1993 9409 (ON CA), 107 D.L.R. (4th) 288n, [1994] I.L.R. Â1-3051 (Ont. C.A.), the court interpreted the language of the then-current standard automobile insurance policy, which defined "occupant" as "a person driving, being carried in or upon or entering or getting on to or alighting from an automobile". In Kyriazis, the court found that the plaintiff, who had got out of the motor vehicle he was driving, and was removing snow from the windows at the time of the accident, was not an "occupant" because he was not actually engaged in the physical activity of "driving". The court rejected the argument that it should adopt a "zone of connection test" that would focus on a number of factors relating to the intention of the plaintiff, including whether he occupied the vehicle immediately before the accident, whether he got out of the vehicle temporarily intending to resume his journey, and whether his actions at the time of the accident were related in some way to the continued use of the vehicle.

[11] In Axa, supra, the court distinguished Kyriazis and developed a different approach to the interpretation of "occupant" as currently defined in s. 224(1) of the Insurance Act. In that case, the plaintiff had driven his truck to a loading bay. While standing 30 feet from his truck and waiting for his turn to unload, the plaintiff was accidentally struck and killed by a piece of wood that flew off another truck. Although the plaintiff was not [page49 ]engaged in the act of driving at the time, Goudge J.A. nevertheless found him to be a "driver" for the purposes of s. 224(1). In contrast to Kyriazis, which interpreted "occupant" by reference to various physical activities, Goudge J.A. emphasized [at para. 14] the importance placed on the status of the person in the current Act:

[T]he Act focuses on the description of the person claiming benefits. It does not turn on the activity being engaged in nor the person's precise location. There is nothing in the statutory definition that requires the person at the time of the incident to be engaged in the act of driving or to be in the vehicle. The requirement is merely that he or she be the driver of the vehicle.

[12] In addition, Axa held that "driver" had to be interpreted in light of the definitions for "passenger" and "person". According to Goudge J.A., [at para. 18] the qualifying words placed on "passenger" and "person" suggest the following limitation on "driver":

. . . while s. 224(1) does not require that a person be in the vehicle to be "the driver", by placing s. 224(1)(a) together with the definitions in ss. 224(1)(b) and (c), it suggests that there must be some degree of physical connection with the vehicle for the person to be the driver.

[13] In addition to requiring a degree of physical connection between the person and the vehicle, Goudge J.A. further held that the status of "driver" does not attach permanently to a person, but depends on the circumstances at the time (para. 19). Consequently, when determining whether a person is a "driver" under s. 224(1), the question to ask is: would an objective observer answer affirmatively if asked that the person was a driver of the vehicle? (para. 21)

[14] In my view, there are four reasons for following the "objective observer" approach set out in Axa.

[15] First, s. 224(1) should be interpreted in a coherent and consistent manner. The word "passenger", like the word "driver" identifies a status rather than a physical activity. As the objective observer test is to be used to interpret "driver", so too should it be used to interpret "passenger".

[16] Second, I do not accept that the "plain language" of the statute dictates a different approach. I do not agree with the respondent's submission that the qualifying words added to the definition of passenger -- "whether being carried in or on the automobile" -- indicate that the person must be "in or on the automobile" to be a passenger. The word "whether" indicates an expansion rather than a contraction of the class of persons who are to be considered passengers. Since the word "automobile" is defined by s. 224(1) to include any "motor vehicle required under any Act to be insured under a motor vehicle liability policy", the phrase qualifying the word "passenger" merely ensures that [page50 ]whatever the precise mode of conveyance, the person conveyed is deemed to be a passenger. It does not follow that the person is only to be considered a passenger while he or she is actually being conveyed. If the narrower meaning were intended, it seems to me that the legislature would have provided that a person is a "passenger while being carried in or on the automobile".

[17] Third, I see nothing in the Axa decision that requires us to give "passenger" a more limited reading. While Goudge J.A. suggested that the definitions of "passenger" and "person getting into or on or getting out of or off the automobile" indicated that a degree of physical connection with the vehicle was required, at no point did he state that the required degree of connection for a passenger is that of actually being in or on the vehicle. In Axa itself, the court did not require such a stringent physical connection between the person and his vehicle in finding that the plaintiff was a "driver". Despite the requirement for a degree of physical connection, the result in Axa indicates that a person can be a driver while standing beside the vehicle. In the absence of statutory language mandating a different interpretation, we should strive for consistency when interpreting the same statutory definition.

[18] Finally, finding Deborah McIntyre to be an "occupant" is consistent with the general principle that insurance legislation defining coverage should ordinarily be liberally construed in favour of the insured. In Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC), [1995] 3 S.C.R. 405, 127 D.L.R. (4th) 618, Major J. noted, at para. 16 that "[t]raditionally, the provisions providing coverage in private policies of insurance have been interpreted broadly in favour of the insured, and exclusions interpreted strictly and narrowly against the insurer." Deborah McIntyre will be covered as a spouse under her husband's automobile policy even if she was not an occupant. Unfortunately, others injured in similar circumstances but without similar spousal coverage will be without insurance coverage and left to whatever benefits are available under the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41, and we must bear that in mind in deciding this appeal. I would add here that when s. 224(1) was added to the Insurance Act in 1990 as part of a larger package of amendments, the Minister who introduced the Bill indicated that the aim of the amendments was to provide "everyone injured in an automobile accident with the compensation needed to return to as normal a life as quickly as possible" (Ontario, Legislative Assembly, Official Report of Debates (Hansard), 4 (23 October 1989) at 3176 (Hon. Murray J. Elston). That legislative intention and the general principle of liberal interpretation would be frustrated by a [page51 ]narrow or literal approach that insisted "passenger" is limited to those actually being physically conveyed at the time of the accident.

[19] I would apply the Axa "objective observer" test. In my view, an objective observer of the accident would describe Deborah McIntyre as a passenger of the motorcycle at the time she was struck by the uninsured driver. Her presence at the scene of the accident was entirely explained by the fact that she was a passenger on the motorcycle. She and her husband had stopped by the roadside to avoid the rain. She intended to resume the journey as soon as the rain stopped. She remained in close proximity to the motorcycle and did not leave it for any other purpose. Finally, she did not engage in any other activity except to wait for the rain to abate.

[20] Accordingly, I would allow the appeal, set aside the order below, and in its place, substitute an order to the effect that Deborah McIntyre was an occupant of the motorcycle at the time of the accident. The appellant is entitled to its costs of the appeal, fixed at the amount agreed by the parties, namely $7,500.

Appeal allowed.