State Farm Mutual Automobile Insurance Company v. Aviva Canada Inc.
[Indexed as: State Farm Mutual Automobile Insurance Co. v. Aviva Canada Inc.]
Ontario Reports
Court of Appeal for Ontario,
Gillese, G.J. Epstein and L.B. Roberts JJ.A.
December 24, 2015
128 O.R. (3d) 321 | 2015 ONCA 920
Case Summary
Insurance — Automobile insurance — Statutory accident benefits — Loss transfer — Fault determination rules — "Ordinary rules of law" in rule 5(1) of Fault Determination Rules not meaning "ordinary rules of tort law" — Rule 3 of Fault Determination Rules informing fault determinations made under rule 5(1) — Fault Determination Rules, R.R.O. 1990, Reg. 668, rules 3, 5(1).
S was driving his motorcycle southbound in the curb lane, approaching an intersection, when B, who was driving in the northbound passing lane, made a left turn at the intersection. S swerved to avoid B, lost control of his motorcycle, fell to the ground and was injured. There was no collision between the two vehicles. S's automobile insurer, State Farm, paid him statutory accident benefits and sought compensation from B's insurer, Aviva, under the loss transfer provisions of the Insurance Act, R.S.O. 1990, c. I.8. The matter went to arbitration. The parties agreed that fault was to be determined based on rule 5(1) of the Fault Determination Rules ("FDRs"), which states, "If an accident is not described in any of these rules, the degree of fault shall be determined in accordance with the ordinary rules of law". Rule 3 of the FDRs provides that fault is to be determined without reference to the circumstances in which the incident occurs. The arbitrator found that S clearly had the right of way, that he did not have a clear view of the intersection as he approached it because of cars that were stopped in the passing lane to his left, and that B did not see S's motorcycle before making his left turn, although the motorcycle was clearly there to be seen. She found that rule 5(1) calls for an analysis that is distinct from the approach required in a pure tort analysis. She determined that B was 100 per cent at fault. Aviva brought an application in which it appealed the award. The application judge set aside the award and declared that S was 50 per cent at fault for the accident. State Farm appealed.
Held, the appeal should be allowed.
The arbitrator correctly interpreted rule 5(1). The phrase "ordinary rules of law" in rule 5(1) does not mean "ordinary rules of tort law". The arbitrator correctly proceeded on the basis that fault determination under rule 5(1) must be informed by the instruction given in rule 3 of the FDRs. There is nothing in the wording of Rule 3 which limits its application to rules 6 through 19. On a plain reading, Rule 3 applies to all determinations of fault made under the FDRs, including those made under rule 5(1).
Germania Farmers' Mutual Fire Insurance Co. v. Federated Insurance Co. of Canada (November 15, 2006), arbitral award of Stephen M. Malach (Ont. Arb.); ING Insurance Co. of Canada v. Farmers' Mutual Insurance Co., 2007 20107 (ON SC), [2007] O.J. No. 2150, 50 C.C.L.I. (4th) 136, [2007] I.L.R. I-4604, 157 A.C.W.S. (3d) 1033, 2007 CarswellOnt 3462 (S.C.J.); Markel Insurance Co. of Canada v. Certas Direct Insurance Co., [2011] O.J. No. 4580, 2011 ONSC 6069, [2011] I.L.R. I-5208, 2 C.C.L.I. (5th) 329, 209 A.C.W.S. (3d) 426 (S.C.J.); Nash v. Sullivan (1973), 1 O.R. (2d) 133, [1973] O.J. No. 2139, 39 D.L.R. (3d) 501, 1973 785 (C.A.), consd [page322]
Other cases referred to
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, [1995] S.C.J. No. 104, 129 D.L.R. (4th) 609, 190 N.R. 241, [1996] 2 W.W.R. 77, J.E. 96-124, 67 B.C.A.C. 1, 14 B.C.L.R. (3d) 1, 26 B.L.R. (2d) 169, 27 C.C.L.T. (2d) 1, EYB 1995-67074, 1995 55, 59 A.C.W.S. (3d) 1025; Jevco Insurance Co. v. York Fire & Casualty Co. (1996), 27 O.R. (3d) 483, [1996] O.J. No. 646, 133 D.L.R. (4th) 592, 89 O.A.C. 155, [1996] I.L.R. 1-3284, 22 M.V.R. (3d) 161, 61 A.C.W.S. (3d) 577, 1996 11780 (C.A.)
Statutes and regulations referred to
Arbitration Act, 1991, S.O. 1991, c. 17 [as am.]
Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, s. 2(1) [as am.]
Highway Traffic Act, R.S.O. 1990, c. H.8 [as am.], ss. 1(1) [as am.], 141(5)
Insurance Act, R.S.O. 1990, c. I.8 [as am.], Part VI [as am.], ss. 224(1) [as am.], 268 [as am.], (2) [as am.], 275 [as am.], (1) [as am.], (2), (4) [as am.]
Rules and regulations referred to
Automobile Insurance, R.R.O. 1990, Reg. 664, s. 9(2) [as am.]
Fault Determination Rules, R.R.O. 1990, Reg. 668, rules 1, 2, (1), 3, 4, 5, (1), 6-19, 12(5), 20
APPEAL from the order of Spence J. of the Superior Court of Justice dated October 10, 2014 allowing an appeal from the award of an arbitrator.
Daniel Strigberger and Monika Bolejszo, for appellant.
Charlia von Buchwald, for respondent.
The judgment of the court was delivered by
GILLESE J.A.: —
Introduction
[1] An accident occurred on May 1, 2009 at the intersection of Yonge Street and Richmond Street in Richmond Hill, Ontario. Whose fault was it? In this appeal, the answer to that question depends upon how rule 5(1) of the Fault Determination Rules, R.R.O. 1990, Reg. 668 (the "FDRs")1 is interpreted.
[2] Rule 5(1) reads as follows:
5(1) If an incident is not described in any of these rules, the degree of fault of the insured shall be determined in accordance with the ordinary rules of law.
(Emphasis added) [page323]
[3] As will be seen, the meaning of the emphasized words in rule 5(1) is critical.
[4] The role that Rule 3 of the FDRs is to play, if any, in interpreting the emphasized words is also crucial. Rule 3 reads as follows:
- The degree of fault of an insured is determined without reference to,
(a) the circumstances in which the incident occurs, including weather conditions, road conditions, visibility or the actions of pedestrians; or
(b) the location on the insured's automobile of the point of contact with any other automobile involved in the incident.
Background
1. The accident
[5] On the day in question, Ali Shalforoushzadeh ("Ali") was driving his motorcycle southbound in the curb lane of Yonge Street, approaching the intersection where the accident took place. Some cars were stopped in the southbound passing lane to Ali's left.
[6] Meanwhile, Eric Basciano ("Eric") was driving his car in the northbound passing lane on Yonge Street. He was on his way back to the hair salon that he owned, which was located near the intersection in question. He needed to turn left at the intersection.
[7] The intersection does not have traffic lights guiding the flow of traffic.
[8] Traffic was heavy. Eric stopped his car in the northbound passing lane and waited for a break in the southbound traffic so that he could turn left. He waited for a while and was then "waved through" the intersection by a driver who was stopped in the southbound passing lane. Eric did not see Ali and his motorcycle before he turned. It was only after Eric completed his turn that he heard skidding sounds. When he checked his rear-view mirror, he saw a motorcycle skidding through the intersection.
[9] There was no collision between the two vehicles. However, as a result of Eric's turn into the southbound lane of traffic, Ali swerved. He lost control of his motorcycle, fell to the ground and was injured.
[10] Ali applied to his insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), for accident benefits payments. State Farm paid him the benefits and then sought indemnification from Eric's insurer, Aviva Canada Inc. ("Aviva"), [page324] under the loss transfer provisions of the Insurance Act, R.S.O. 1990, c. I.8 (the "Act").2
2. The arbitration award
[11] State Farm and Aviva did not agree on the matter of indemnification and took the matter to arbitration. The arbitration proceeded on the basis of their agreement that fault was to be determined based on rule 5(1) of the FDRs. The parties were divided, however, on how rule 5(1) was to be interpreted and applied.
[12] In an award dated February 14, 2014 (the "award"), the arbitrator determined that Eric was 100 per cent at fault for the accident.
[13] The arbitrator heard the oral testimony of both drivers. She also had before her the transcripts of the examination for discovery of the drivers. She weighed the evidence and made the following findings of fact:
Ali clearly had the right of way as he proceeded southbound on Yonge Street, approaching the intersection in question;
Ali did not have a full view of the intersection as he approached it because of cars that were stopped in the passing lane to his left;
there was no evidence that Ali was travelling at a speed faster than approximately 30 km/hr, a speed well below the posted speed limit of 50 km/hr;
Eric did not see Ali's motorcycle before making his left turn, although "it is clear that the motorcycle was there to be seen";
there was no impact between the vehicles but as a result of Eric's turn, Ali lost control of his motorcycle, fell to the ground and sustained injuries.
[14] The arbitrator then considered how rule 5(1) was to be applied. She concluded that rule 5(1) calls for an analysis that is distinct from the approach required in a pure tort analysis. Her reasoning can be summarized as follows.
[15] Rule 5(1) of the FDRs requires that the insured's degree of fault be determined in accordance with "the ordinary rules of [page325] law". The FDRs are a complete code referenced in s. 275 of the Act. Any fault determination conducted under the FDRs must be informed by Rule 3 of the FDRs, which is an umbrella provision. Rule 3 requires that the degree of fault be determined without reference to various circumstances, including the weather and road conditions, actions of pedestrians, and the location on the insured's automobile of the point of impact.
[16] The arbitrator went on to say that relevant Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") provisions and case law should not be ignored. She took note of rule 12(5) of the FDRs, which dictates a finding of 100 per cent fault on the part of a left-turning vehicle where there is a collision between that vehicle and one proceeding straight through an intersection.
[17] The arbitrator also noted that the HTA provisions regarding left-turning vehicles are consistent with rule 12(5). Section 141(5) of the HTA states that a driver must not turn left at an intersection into the path of an oncoming vehicle unless that driver has "afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision".
[18] The arbitrator found that Eric -- the driver of the left-turning vehicle -- did not see Ali approaching the intersection on his motorcycle and, therefore, could not have provided Ali with the opportunity to avoid the collision. She also found that Ali's motorcycle "was there to be seen" even though Eric testified he did not see Ali approaching the intersection.
[19] The arbitrator opined that if this case had been considered within the context of a tort action, some contributory negligence might be attributed to Ali based on Nash v. Sullivan (1973), 1 O.R. (2d) 133, [1973] O.J. No. 2139, 1973 785 (C.A.). However, because of her analysis of the loss transfer provisions, she found Eric to be 100 per cent at fault for the accident.
3. The order under appeal
[20] Aviva brought an application in which it appealed the award. By order dated October 10, 2014 (the "order"), the application judge set aside the award and declared that Ali was 50 per cent at fault for the accident.
[21] The application judge noted the arbitrator's determination that Ali had the right of way, a matter that was not disputed. He also noted the arbitrator's finding that the motorcycle "was there to be seen" and stated that "there is no basis to consider this finding of fact unreasonable".
[22] However, the application judge said that the arbitrator erred in law when she disregarded the circumstance that cars [page326] were stopped to Ali's left as he approached the intersection and failed to attribute contributory negligence. The application judge saw nothing in the provisions relating to the loss transfer scheme which required that circumstance to be ignored. He said that Ali's failure to be alert as he approached the intersection -- given that cars were stopped to his left -- was the same type and degree of negligence as that of Eric. Based on Nash, the application judge apportioned fault for the accident on a 50/50 basis.
The Issues
[23] State Farm appeals to this court, asking that the order be set aside and the award be reinstated. It submits that the application judge erred by
(1) making a finding of fact that the arbitrator did not make;
(2) failing to give deference to the arbitrator's findings of fact and negligence under the ordinary rules of law;
(3) applying Nash to the facts of this case; and
(4) finding that the arbitrator incorrectly interpreted rule 5(1) of the FDRs.
Analysis
Issue #1: A finding of fact not made by the arbitrator
[24] The application judge found Ali to be 50 per cent at fault because he failed to be alert when approaching the intersection, despite the fact that cars were stopped to his left. State Farm says that it was an error for the application judge to have made the finding that Ali failed to be alert.
[25] I agree.
[26] The arbitrator heard the oral evidence and made no such finding. It was she who had the advantage of seeing and hearing the testimony first-hand. In this case, the evidence was mainly testimonial -- as opposed to documentary -- and credibility was in issue. In such a case, the application judge should have been wary of making such a finding: Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, [1995] S.C.J. No. 104, 1995 55, at para. 33.
[27] In any event, however, there is nothing in the record to support the application judge's finding that Ali failed to be alert when approaching the intersection.
Issue #2: Deference owed to the arbitrator's findings
[28] State Farm submits that unless unreasonable, arbitral conclusions of mixed fact and law are entitled to deference. [page327] Therefore, because the application judge found the arbitrator's findings of fact to be reasonable, State Farm says that he committed an error in law in setting aside her finding of fault.
[29] In my view, this submission is misguided. The application judge set aside the arbitrator's finding of fault because he viewed the arbitrator as having erred in law in determining fault under rule 5(1) of the FDRs. Thus, the question is whether the arbitrator applied the correct legal principles in making that determination. That question is the subject matter of Issue #4.
Issue #3: Whether Nash applies
[30] Given the arbitrator's factual findings, in my view, Nash does not apply and the application judge erred in so doing.
[31] In Nash, a driver was waiting to make a left turn at an intersection (the "defendant"). He was travelling on a through street with two lanes in either direction. Traffic was heavy in both directions. An oncoming motorcyclist approached the intersection. Cars in the passing lane to the left of the motorcyclist were stopped. The driver of one of those stopped cars flashed his lights, indicating to the defendant that he would wait while the defendant made his left turn. The defendant moved slowly into the intersection and hit the motorcyclist, who had approached the intersection in such a manner that he was hidden from the view of oncoming motorists intending to make a left turn.
[32] The trial judge found the defendant to be 100 per cent liable for the accident because the motorcyclist had the right of way.
[33] This court set aside the trial decision and held that the defendant and the motorcyclist were equally at fault for the accident. It held that the motorcyclist was negligent in failing to slow his motorcycle and keep a proper lookout when he saw, or should have seen, that the cars to his left had stopped and because he approached the intersection in such a manner that he was hidden from the view of motorists intending to make a left turn.
[34] While there are a number of common features between this case and Nash, there is one significant factual difference. In Nash, as the motorcyclist approached the intersection, he was hidden from the view of the oncoming left-turning drivers. The facts of this case, on that point, are completely to the contrary. Not only was there no finding that Ali was hidden from the view of motorists intending to make a left turn into the intersection, the arbitrator expressly found that Ali was "there to be seen". It is noteworthy that the application judge commented on this finding, saying that there was no basis to consider it unreasonable. [page328]
[35] For these reasons, in my view, the application judge erred in applying Nash and apportioning liability.
Issue #4: Interpreting rule 5(1) of the [FDRs](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-668/latest/rro-1990-reg-668.html)
[36] Did the arbitrator correctly interpret rule 5(1) or was the application judge correct to find that she had erred in law? To resolve this issue, I will
(A) provide an overview of the competing approaches of the arbitrator and the application judge, the parties' positions on the issue, and my conclusion as to which approach is correct; and
(B) interpret "the ordinary rules of law" in rule 5(1), in light of
(i) Ontario's loss transfer scheme;
(iii) a consideration of the quoted words in context.
[37] I will conclude by responding to two other considerations raised by Aviva.
A. Overview
[38] Rule 5(1), it will be recalled, reads as follows:
5(1) If an incident is not described in any of these rules, the degree of fault of the insured shall be determined in accordance with the ordinary rules of law.
[39] Because the accident in this case is not described in any of the FDRs, rule 5(1) applies to determine fault.
[40] Pursuant to rule 5(1), the degree of fault of each insured is to be determined in accordance with "the ordinary rules of law" (the "quoted words"). Therefore, to correctly apply rule 5(1), we must first understand what is meant by the quoted words.
[41] The arbitrator proceeded on the basis that fault determination under rule 5(1) must be informed by the instruction given in Rule 3 of the FDRs. Because Rule 3 requires the degree of fault to be determined without reference to the circumstances in which the incident occurs, in the arbitrator's view, the quoted words in rule 5(1) call for an approach distinct from a pure tort law analysis. To determine the degree of fault, she looked at rule 12(5) of the FDRs -- which governs situations similar to this case except that they involve a collision -- and s. 141(5) of the HTA. She did not use tort law to determine fault.
[42] The application judge acknowledged that Rules 1 through 5 of the FDRs are provisions of general application. However, he [page329] saw nothing in them that would require the court to disregard the circumstances of the accident -- specifically, that the cars to Ali's left as he approached the intersection were stopped -- for the purposes of determining fault under rule 5(1). In his view, it was an error in law for the arbitrator to have disregarded that circumstance. As a result, he set aside her decision and determined fault in accordance with the tort law jurisprudence, specifically, the Nash decision.
[43] State Farm says that, for the reasons given by the arbitrator, it was she who interpreted rule 5(1) correctly, not the application judge.
[44] Aviva takes the opposite position. It says that the application judge was right to reject the arbitrator's use of Rule 3 when determining fault under rule 5(1). It contends that Rule 3 applies when fault is determined under Rules 6 through 19 of the FDRs but the quoted words dictate that fault under rule 5(1) is to be determined through the application of tort law. Aviva points to some judicial and arbitral decisions as support for its position.
[45] In my view, the arbitrator correctly interpreted and applied the quoted words in rule 5(1), having regard to the purpose and scheme of the loss transfer provisions as a whole. Accordingly, there was no basis for the application judge to set aside the award and substitute his own determinations as to fault.
B. Interpreting "the ordinary rules of law" in rule 5(1)
[46] The meaning to be given to the "ordinary rules of law" in rule 5(1) of the FDRs is a matter of statutory interpretation. I make this seemingly obvious point because the decisions relied on by Aviva have not approached the matter in that fashion. Instead, those decisions are based on the assumption that the words "the ordinary rules of law" in rule 5(1) mean "the ordinary rules of tort law". I pause to note that it would have been a simple matter for the legislature to have included the word "tort" in the quoted words in rule 5(1), had that been its intention. In any event, when the meaning of the quoted words is approached as a matter of statutory interpretation, it becomes clear that the word "tort" should not be read into rule 5(1).
[47] As a matter of statutory interpretation, the task is to discover the intention of the legislator as expressed by the words "the ordinary rules of law". To accomplish that task, those words are to be considered in their entire context, and read in their grammatical and ordinary sense, in harmony with the legislative framework within which they are found: [page330] Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at paras. 26, 55.
[48] The quoted words are within rule 5(1), rule 5(1) is part of the FDRs and the FDRs are an integral part of Ontario's loss transfer scheme. Ontario's loss transfer scheme, therefore, provides the context within which to consider the quoted words. Thus, I begin with a consideration of that scheme.
i. Ontario's loss transfer scheme
[49] Under the Act, Ontario has a partial no-fault system. Since June 1990, regardless of fault, insureds look to their own insurers for the payment of statutory accident benefits, rather than seeking compensation from third parties (and their insurers). The Ontario legislature introduced the loss transfer scheme to address the cost implications for insurers of moving to this partial no-fault system: Ontario Insurance Commission (now the Financial Services Commission of Ontario), Interpretation Bulletin No. A-11/94, "Loss Transfer: Standardized Forms and Procedures" (June 6, 1994).
[50] Section 268 of the Act requires an insurer to pay statutory accident benefits to its insured, in certain circumstances. A motorcyclist is covered by this provision.3 An insurer who pays such benefits to its insured is known as the "first party insurer".
[51] Section 275 of the Act establishes the process by which the first party insurer can claim indemnification from another insurer.
[52] Section 275(1) allows the first party insurer, in certain situations, to claim indemnification from the insurer of the other driver involved in the accident. In this situation, the other driver's insurer is known as the "second party insurer". It is the indemnification of the first party insurer by the second party insurer which is known as "loss transfer". [page331]
[53] Section 275(2) of the Act requires that indemnification be made "according to the respective degree of fault of each insurer's insured as determined under the [FDRs]".4
[54] The FDRs consist of 20 rules. The first five rules are general provisions. Those provisions are discussed below. Rules 6 through 19 contain a series of general types of incidents and specify the fault to be attributed to each driver in each incident. Fault is not a nuanced determination in Rules 6 through 19: it is typically assigned as 50 per cent or 100 per cent. Rule 20 provides the rules for fault determination when a driver involved in an incident is charged with a driving offence.
[55] If, as in this case, the first party and second party insurers cannot agree on indemnification under s. 275, s. 275(4) of the Act requires them to resolve the matter through arbitration under the Arbitration Act, 1991, S.O. 1991, c. 17.
[56] The legislation which creates the loss transfer scheme consists of the relevant provisions of the Act together with the FDRs. The purpose of the loss transfer scheme is to provide for an expedient and summary method of spreading the cost of statutory accident benefits among insurers, in a gross and somewhat arbitrary fashion, favouring expediency and economy over finite exactitude: Jevco Insurance Co. v. York Fire & Casualty Co. (1996), 27 O.R. (3d) 483, [1996] O.J. No. 646, 1996 11780 (C.A.), at paras. 8-9.
ii. [Rule 3](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-668/latest/rro-1990-reg-668.html) of the [FDRs](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-668/latest/rro-1990-reg-668.html)
[57] For ease of reference, I set out Rule 3 again now:
- The degree of fault of an insured is determined without reference to,
(a) the circumstances in which the incident occurs, including weather conditions, road conditions, visibility or the actions of pedestrians; or
(b) the location on the insured's automobile of the point of contact with any other automobile involved in the incident.
[58] A plain reading of Rule 3, considered in conjunction with its location in the FDRs and the purpose of the loss transfer scheme, leads me to conclude that Rule 3 informs all fault [page332] determinations made under the FDRs, including those made pursuant to rule 5(1).
The wording of Rule 3
[59] Rule 3 says that fault is to be determined "without reference to . . . the circumstances in which the incident occurs". There is nothing in the wording of Rule 3 which limits its application to Rules 6 through 19, as Aviva contends. On a plain reading, Rule 3 applies to all determinations of fault made under the FDRs, including those made under rule 5(1).
Rule 3's location in the FDRs
[60] Rules 1 through 5 of the FDRs are located under the heading "General". The wording of Rules 1 through 5 and their location at the beginning of the regulation show that they are rules of general application in the FDRs.
[61] Rule 1 defines the "centre line" of a roadway.
[62] Rule 2(1) provides that an insurer "shall determine the degree of fault of its insured . . . in accordance with [the FDRs]".
[63] Rule 3, as I have just explained, limits the way in which fault is determined under the FDRs.
[64] Rule 4 governs situations in which more than one rule applies to an insured or incident.
[65] And, as previously discussed, Rule 5 governs where an incident is not described in any of the FDRs.
[66] Accordingly, Rule 3's location in the FDRs supports the view that it is a rule of general application and informs fault determinations made under rule 5(1), as well as those made under Rules 6 through 19.
Rule 3 in light of the purpose of Ontario's loss transfer scheme
[67] The view that Rule 3 informs all fault determinations made under the FDRs, including those made pursuant to rule 5(1), is further reinforced by reference to the purpose of Ontario's loss transfer scheme. That purpose, as previously indicated, is to provide an expedient and summary method of resolving indemnification claims.
[68] A determination of fault in tort law is often a lengthy, detailed and nuanced process, which requires findings of fact on the very circumstances excluded from consideration by Rule 3. By precluding a pure tort law approach to fault determination, Rule 3 acts in harmony with the purpose of the legislative [page333] scheme because it promotes an expedient, more summary approach for determining fault.
iii. "The ordinary rules of law" considered in context
[69] Having determined that Rule 3 informs fault determinations made under rule 5(1), "the ordinary rules of law" cannot be interpreted as "the ordinary rules of tort law". A determination of fault based on tort law rules would necessarily engage a consideration of the circumstances that the legislature purposefully excluded from consideration by Rule 3. Furthermore, as already discussed, resort to pure tort law for the determination of fault would run contrary to the purpose of the loss transfer scheme, which is to provide an expedient and summary way of resolving indemnification claims.
[70] Recourse to pure tort law for the determination of fault under rule 5(1) would also run contrary to s. 275(2) of the Act. Section 275(2) of the Act, it will be recalled, provides that indemnification depends on fault and fault is to be determined under the FDRs. In short, s. 275 establishes the FDRs as a complete code for determining fault in the indemnification context. This dictate is reinforced by Rule 2 of the FDRs, which provides that insurers are to determine the degree of fault of their insureds in accordance with the FDRs.
[71] Finally, as I noted previously, had the legislature intended that fault determinations under rule 5(1) were to be made in accordance with the ordinary rules of tort law, it would have been an easy matter to have included the word "tort". It did not do so. In my view, that was a deliberate decision because it enabled rules 3 and 5(1) to be read in harmony with one another and the whole of the legislative scheme.
C. Two concluding points
[72] Aviva raised two other points which warrant comment.
[73] Point #1 -- Aviva says that if fault is not determined under rule 5(1) in accordance with tort law, the parameters for fault determination under that rule are unclear. I accept this complaint to a point: it is correct that determining fault without reference to pure tort law creates some uncertainty as to what can be referred to, in making that determination. However, as the award in the present case demonstrates, reference can be made to "rules of law", despite there being no clear definition of those words. In the award, the arbitrator referred to two things, both of which fall within the meaning of "the ordinary rules of law" as those words are used in rule 5(1) of the FDRs. [page334]
[74] First, the arbitrator referred to rule 12(5) of the FDRs. Rule 12(5) deals with incidents very similar to that in the present case. Rule 12(5) applies where a collision results from a driver turning left into the path of an oncoming vehicle. It does not apply in this case because there was no collision between the two vehicles. Under rule 12(5), the driver of the left-turning vehicle is 100 per cent at fault. Although not directly applicable, rule 12(5) provides persuasive guidance for fault determination in this case.
[75] Second, the arbitrator considered s. 141(5) of the HTA. Section 141(5) provides that a driver shall not turn left across the path of an approaching vehicle "unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision". The arbitrator noted that Eric, as the left-turning driver, testified that he did not see Ali approaching the intersection on his motorcycle and so could not have provided him with an opportunity to avoid a collision. In her opinion, the fact that there was no collision did not take away from Eric's obligations in this regard.
[76] A consideration of s. 141(5) of the HTA led the arbitrator to the same fault determination as that indicated by reference to rule 12(5). Accordingly, the arbitrator determined that Eric was 100 per cent at fault for the incident.
[77] The arbitrator's fault determination could be criticized for being insufficiently nuanced. However, her approach is consistent with the legislative scheme, which is to provide an expedient and summary method of determining fault for the purposes of indemnification. As this court observed in Jevco v. York Fire, at para. 9, fault determinations under the FDRs are done in a gross and somewhat arbitrary fashion, favouring expediency and economy over finite exactitude.
[78] Point #2 -- Aviva pointed to three decisions as support for its position that the words "the ordinary rules of law" mean "the ordinary rules of tort law" for the purposes of rule 5(1): Markel Insurance Co. of Canada v. Certas Direct Insurance Co., [2011] O.J. No. 4580, 2011 ONSC 6069 (S.C.J.); Germania Farmers' Mutual Fire Insurance Co. v. Federated Insurance Company of Canada (November 15, 2006), arbitral award of Stephen M. Malach (Ont. Arb.); and ING Insurance Co. of Canada v. Farmers' Mutual Insurance Co., 2007 20107 (ON SC), [2007] O.J. No. 2150, 2007 CarswellOnt 3462 (S.C.J.).
[79] In the first two cases, I agree that the decision maker applied the ordinary rules of tort law when allocating fault pursuant to rule 5(1). However, neither undertook a statutory interpretation of the quoted words before so doing. It appears that [page335] both decision makers simply assumed that "the ordinary rules of law" means "the ordinary rules of tort law". On my reading of the third decision, it does not apply rule 5(1) nor address how the quoted words in it are to be interpreted. Thus, none of these decisions offer a reason for following a pure tort law approach to fault determination under rule 5(1).
Disposition
[80] For these reasons, I would allow the appeal and set aside the order, thereby restoring the award. I would order costs of this appeal to the appellant fixed at $9,000, inclusive of disbursements and applicable taxes.
[81] In its factum, the appellant sought its costs, which I understand to include costs before the application judge and the arbitrator. In light of the result on appeal, the general practice in this court would be to reverse the costs award below. However, in the absence of submissions on this matter, I would not decide it. If the parties are unable to resolve the matter of the costs below, I would permit them to file written submissions to a maximum of three pages, such submissions to be filed within ten days of the date of release of these reasons.
[82] As for the costs of the arbitration, if the parties are unable to resolve that matter, I would order that they be referred to the arbitrator for determination.
Appeal allowed.
APPENDIX "A"
Fault Determination Rules, R.R.O. 1990,
Reg. 668
GENERAL
- In this Regulation,
"centre line" of a roadway means,
(a) a single or double, unbroken or broken line marked in the middle of the roadway, or
(b) if no line is marked, the middle of the roadway or that portion of the roadway that is not obstructed by parked vehicles, a snowbank or some other object blocking traffic.
2(1) An insurer shall determine the degree of fault of its insured for loss or damage arising directly or indirectly from the use or operation of an automobile in accordance with these rules.
(2) The diagrams in this Regulation are merely illustrative of the situations described in these rules. [page336]
- The degree of fault of an insured is determined without reference to,
(a) the circumstances in which the incident occurs, including weather conditions, road conditions, visibility or the actions of pedestrians; or
(b) the location on the insured's automobile of the point of contact with any other automobile involved in the incident.
4(1) If more than one rule applies with respect to the insured, the rule that attributes the least degree of fault to the insured shall be deemed to be the only rule that applies in the circumstances.
(2) Despite subsection (1), if two rules apply with respect to an incident involving two automobiles and if under one rule the insured is 100 per cent at fault and under the other the insured is not at fault for the incident, the insured shall be deemed to be 50 per cent at fault for the incident.
5(1) If an incident is not described in any of these rules, the degree of fault of the insured shall be determined in accordance with the ordinary rules of law.
(2) If there is insufficient information concerning an incident to determine the degree of fault of the insured, it shall be determined in accordance with the ordinary rules of law unless otherwise required by these rules.
RULES FOR AUTOMOBILES TRAVELLING IN THE SAME
DIRECTION AND LANE
6(1) This section applies when automobile "A" is struck from the rear by automobile "B", and both automobiles are travelling in the same direction and in the same lane.
(2) If automobile "A" is stopped or is in forward motion, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
(3) If automobile "A" is turning, either to the right or to the left, in order to enter a side road, private road or driveway, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident. [page337]
Diagram
[Editor's Note: This image could not be reproduced online.]
(4) If automobile "A" is in forward motion and is entering a parking place on either the right or the left side of the road, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
7(1) This section applies when automobile "A" collides with automobile "B" while automobile "B" is entering a road from a parking place, private road or driveway.
(2) If the incident occurs when automobile "B" is leaving a parking place and automobile "A" is passing the parking place, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident. [page338]
Diagram
[Editor's Note: This image could not be reproduced online.]
(3) If the incident occurs when automobile "B" is entering a road from a private road or a driveway and automobile "A" is passing the private road or driveway and, if there are no traffic signals or signs, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
- If automobile "A" collides with automobile "B" on a controlled access road while automobile "B" is entering the road from an entrance lane, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
[page339]
Diagram
[Editor's Note: This image could not be reproduced online.]
9(1) This section applies with respect to an incident involving three or more automobiles that are travelling in the same direction and in the same lane (a "chain reaction").
(2) The degree of fault for each collision between two automobiles involved in the chain reaction is determined without reference to any related collisions involving either of the automobiles and another automobile.
(3) If all automobiles involved in the incident are in motion and automobile "A" is the leading vehicle, automobile "B" is second and automobile "C" is the third vehicle,
(a) in the collision between automobiles "A" and "B", the driver of automobile "A" is not at fault and the driver of automobile "B" is 50 per cent at fault for the incident;
(b) in the collision between automobiles "B" and "C", the driver of automobile "B" is not at fault and the driver of automobile "C" is 100 per cent at fault for the incident.
[page340]
Diagram
[Editor's Note: This image could not be reproduced online.]
(4) If only automobile "C" is in motion when the incident occurs,
(a) in the collision between automobiles "A" and "B", neither driver is at fault for the incident; and
(b) in the collision between automobiles "B" and "C", the driver of automobile "B" is not at fault and the driver of automobile "C" is 100 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
RULES FOR AUTOMOBILES TRAVELLING IN THE SAME
DIRECTION IN ADJACENT LANE
10(1) This section applies when automobile "A" collides with automobile "B", and both automobiles are travelling in the same direction and in adjacent lanes.
(2) If neither automobile "A" nor automobile "B" changes lanes, and both automobiles are on or over the centre line when the incident (a "sideswipe") occurs, the driver of each automobile is 50 per cent at fault for the incident.
[page341]
Diagram
[Editor's Note: This image could not be reproduced online.]
(3) If the location on the road of automobiles "A" and "B" when the incident (a "sideswipe") occurs cannot be determined, the driver of each automobile is 50 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
(4) If the incident occurs when automobile "B" is changing lanes, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
[page342]
Diagram
[Editor's Note: This image could not be reproduced online.]
(5) If the incident occurs when automobile "A" is turning left at an intersection and automobile "B" is overtaking automobile "A" to pass it, the driver of automobile "A" is 25 per cent at fault and the driver of automobile "B" is 75 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
(6) If the incident occurs when automobile "A" is turning left at a private road or a driveway and automobile "B" is overtaking automobile "A" to pass it, the driver of each automobile is 50 per cent at fault for the incident.
[page343]
Diagram
[Editor's Note: This image could not be reproduced online.]
(7) If the incident occurs when automobile "A" is turning left at a private road or a driveway and automobile "B" is passing one or more automobiles stopped behind automobile "A", the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
11(1) This section applies with respect to an incident involving three or more automobiles that are travelling in the same direction and in adjacent lanes (a "pile-up").
(2) For each collision between two automobiles involved in the pile-up, the driver of each automobile is 50 per cent at fault for the incident.
[page344]
Diagram
[Editor's Note: This image could not be reproduced online.]
RULES FOR AUTOMOBILES TRAVELLING IN OPPOSITE
DIRECTIONS
12(1) This section applies when automobile "A" collides with automobile "B", and the automobiles are travelling in opposite directions and in adjacent lanes.
(2) If neither automobile "A" nor automobile "B" changes lanes and both automobiles are on or over the centre lane when the incident (a "sideswipe") occurs, the driver of each automobile is 50 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
(3) If the location on the road of automobiles "A" and "B" when the incident (a "sideswipe") occurs cannot be determined, the driver of each automobile is 50 per cent at fault for the incident. [page345]
Diagram
[Editor's Note: This image could not be reproduced online.]
(4) If automobile "B" is over the centre line of the road when the incident occurs, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
(5) If automobile "B" turns left into the path of automobile "A", the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident. [page346]
Diagram
[Editor's Note: This image could not be reproduced online.]
(6) If automobile "B" is leaving a parking place or is entering the road from a private road or driveway, and if automobile "A" is overtaking to pass another automobile when the incident occurs, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
Diagram
[Editor's Note: This image could not be reproduced online.]
RULES FOR AUTOMOBILES IN AN INTERSECTION
13(1) This section applies with respect to an incident that occurs at an intersection that does not have traffic signals or traffic signs.
(2) If automobile "A" enters the intersection before automobile "B", the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
(3) If automobiles "A" and "B" enter the intersection at the same time and automobile "A" is to the right of automobile "B" when in the intersection, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident. [page347]
(4) If it cannot be established whether automobile "A" or "B" entered the intersection first, the driver of each automobile shall be deemed to be 50 per cent at fault for the incident.
14(1) This section applies with respect to an incident that occurs at an intersection with traffic signs.
(2) If the incident occurs when the driver of automobile "B" fails to obey a stop sign, yield sign or a similar sign or flares or other signals on the ground, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
(3) If the driver of each automobile fails to obey a stop sign, the driver of each automobile is 50 per cent at fault for the incident.
(4) If it cannot be established who failed to obey a stop sign, the driver of each automobile shall be deemed to be 50 per cent at fault for the incident.
(5) If, at an all-way stop intersection, automobile "A" arrives at the intersection first and stops, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
(6) If, at an all-way stop intersection, both automobiles arrive at the intersection at the same time and stop, with automobile "A" to the right of automobile "B", the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
(7) If it cannot be established who arrived at the all-way stop intersection first, the driver of each automobile shall be deemed to be 50 per cent at fault for the incident.
15(1) This section applies with respect to an incident that occurs at an intersection with traffic signals.
(2) If the driver of automobile "B" fails to obey a traffic signal, the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
(3) If it cannot be established whether the driver of either automobile failed to obey a traffic signal, the driver of each automobile shall be deemed to be 50 per cent at fault for the incident.
(4) If the traffic signals at the intersection are inoperative, the degree of fault of the drivers shall be determined as if the intersection were an all-way stop intersection.
RULES FOR AUTOMOBILES IN PARKING LOTS
16(1) This section applies with respect to incidents in parking lots.
(2) The degree of fault of a driver involved in an incident on a thoroughfare shall be determined in accordance with this Regulation as if the thoroughfare were a road.
(3) If automobile "A" is leaving a feeder lane and fails to yield the right of way to automobile "B" on a thoroughfare, the driver of automobile "A" is 100 per cent at fault and the driver of automobile "B" is not at fault for the incident.
(4) If automobile "A" is leaving a parking space and fails to yield the right of way to automobile "B" on a feeder lane or a thoroughfare, the driver of [page348] automobile "A" is 100 per cent at fault and the driver of automobile "B" is not at fault for the incident.
(5) In this section,
"feeder lane" means a road in a parking lot other than a thoroughfare;
"thoroughfare" means a main road for passage into, through or out of a parking lot.
RULES FOR OTHER CIRCUMSTANCES
17(1) If automobile "A" is parked when it is struck by automobile "B", the driver of automobile "A" is not at fault and the driver of automobile "B" is 100 per cent at fault for the incident.
(2) If automobile "A" is illegally parked, stopped or standing when it is struck by automobile "B" and if the incident occurs outside a city, town or village, the driver of automobile "A" is 100 per cent at fault and the driver of automobile "B" is not at fault for the incident.
- The driver of automobile "A" is 100 per cent at fault and the driver of automobile "B" is not at fault for an incident in which automobile "A" collides with automobile "B" when the driver of automobile "A" fails to obey,
(a) a police officer's direction;
(b) a do not enter sign;
(c) a prohibited passing sign; or
(d) a prohibited turn sign.
- The driver of automobile "A" is 100 per cent at fault and the driver of automobile "B" is not at fault for an incident that occurs,
(a) when automobile "A" is backing up;
(b) when automobile "A" is making a U-turn; or
(c) when the driver of, or a passenger in, automobile "A" opens the automobile door or leaves the door open.
RULES WHEN A DRIVER IS CHARGED WITH A DRIVING
OFFENCE
20(1) For the purposes of this Regulation, a driver is considered to be charged with a driving offence,
(a) if, as a result of the incident, the driver is charged with operating the automobile while his or her ability to operate the automobile was impaired by alcohol or a drug;
01,16200(b) if, as a result of the incident, the driver is charged with driving while his or her blood alcohol level exceeded the limits permitted by law;
(c) if, as a result of the incident, the driver is charged with an indictable offence related to the operation of the automobile;
(d) if the driver, as a result of the incident, is asked to provide a breath sample and he or she is charged with failing or refusing to provide the sample; [page349]
(e) if, as a result of the incident, the driver is charged with exceeding the speed limit by sixteen or more kilometres per hour.
(2) The degree of fault of the insured shall be determined in accordance with the ordinary rules of law, and not in accordance with these rules,
(a) if the driver of automobile "A" involved in the incident is charged with a driving offence; and
(b) if the driver of automobile "B" is wholly or partly at fault, as otherwise determined under these rules, for the incident.
APPENDIX "B"
ADDITIONAL LEGISLATIVE PROVISIONS
[Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html), R.S.O. 1990, c. I.8
PART VI
AUTOMOBILE INSURANCE
Interpretation, Part VI
224(1) In this Part,
"automobile" includes,
(a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and
(b) a vehicle prescribed by regulation to be an automobile[.]
Statutory accident benefits
268(1) Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule.
Liability to pay
(2) The following rules apply for determining who is liable to pay statutory accident benefits:
- In respect of an occupant of an automobile,
i. the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant, [page350]
iii. if recovery is unavailable under subparagraph i or ii, the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose,
iv. if recovery is unavailable under subparagraph i, ii or iii, the occupant has recourse against the Motor Vehicle Accident Claims Fund.
- In respect of non-occupants,
i. the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant,
iii. if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose,
iv. if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund.
Liability
(3) An insurer against whom a person has recourse for the payment of statutory accident benefits is liable to pay the benefits.
Indemnification in certain cases
275(1) The insurer responsible under subsection 268 (2) for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which the responsibility to pay the statutory accident benefits arose.
Idem
(2) Indemnification under subsection (1) shall be made according to the respective degree of fault of each insurer's insured as determined under the fault determination rules.
Arbitration
(4) If the insurers are unable to agree with respect to indemnification under this section, the dispute shall be resolved through arbitration under the Arbitration Act, 1991. [page351]
[Highway Traffic Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html), R.S.O. 1990, c. H.8
Definitions
1(1) In this Act,
"motor vehicle" includes an automobile, a motorcycle, a 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 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[.]
Turning at intersections
- . . .
Left turn, across path of approaching vehicle
(5) No driver or operator of a vehicle in an intersection shall turn left across the path of a vehicle approaching from the opposite direction unless he or she has afforded a reasonable opportunity to the driver or operator of the approaching vehicle to avoid a collision.
[Compulsory Automobile Insurance Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c25/latest/rso-1990-c-c25.html), R.S.O. 1990, c. C.25
Definitions
1(1) In this Act,
"motor vehicle" has the same meaning as in the Highway Traffic Act and includes trailers and accessories and equipment of a motor vehicle[.]
Compulsory automobile insurance
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.
[Automobile Insurance](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-664/latest/rro-1990-reg-664.html), R.R.O. 1990, Reg. 664
INDEMNIFICATION FOR STATUTORY ACCIDENT BENEFITS
(SECTION 275 OF THE ACT)
9(1) In this section,
"first party insurer" means the insurer responsible under subsection 268(2) of the Act for the payment of statutory accident benefits;
. . . . . [page352]
"motorcycle" means a self-propelled vehicle with a seat or saddle for the use of the driver, steered by handlebars and designed to travel on not more than three wheels in contact with the ground, and includes a motor scooter and a motor assisted bicycle as defined in the Highway Traffic Act;
"second party insurer" means an insurer required under section 275 of the Act to indemnify the first party insurer.
(2) A second party insurer under a policy insuring any class of automobile other than motorcycles, off-road vehicles and motorized snow vehicles is obligated under section 275 of the Act to indemnify a first party insurer,
(a) if the person receiving statutory accident benefits from the first party insurer is claiming them under a policy insuring a motorcycle and,
(i) if the motorcycle was involved in the incident out of which the responsibility to pay statutory accident benefits arises, or
(ii) if motorcycles and motorized snow vehicles are the only types of vehicle insured under the policy[.]
Notes
1 The FDRs are set out in full in Appendix A to these reasons.
2 All legislative provisions referred to in these reasons, except the FDRs, can be found in Appendix B. The FDRs are included as Appendix A.
3 Where the insured is the "occupant of an automobile," s. 268(2) of the Act provides that the insured "has recourse against the insurer of an automobile in respect of which the occupant is an insured". The definition of an "automobile" for the purposes of Part VI of the Act, which includes ss. 268 and 275, is set out in s. 224(1) of the Act. It includes "a motor vehicle required under any Act to be insured under a motor vehicle liability policy". Section 2(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 prohibits, subject to certain regulations, the operation on a highway of a "motor vehicle" as defined in the HTA, unless the motor vehicle is insured. The definition of a "motor vehicle" in s. 1(1) of the HTA includes "a motorcycle".
4 Section 9(2) of Automobile Insurance, R.R.O. 1990, Reg. 664 provides that a second party insurer insuring any class of automobile other than motorcycles, off-road vehicles and motorized snow vehicles is obligated under s. 275 of the Act to indemnify a first party insurer if the person receiving statutory accident benefits from the first party insurer is claiming them under a policy insuring a motorcycle.
End of Document