The Attorney General for the Province of Ontario c/o The Ministry of Transportation v. Redman et al. [Indexed as: Ontario (Ministry of Transportation) v. Redman]
65 O.R. (3d) 267
[2003] O.J. No. 4054
Court File No. DC6/02
Ontario Superior Court of Justice Divisional Court
Flynn J.
June 10, 2003
Insurance -- Automobile insurance -- Ministry of Transportation not entitled to recover cost of first aid treatment provided by firefighters at scene of four-vehicle accident from owner and driver of car which allegedly caused accident -- Services were not provided to owner and driver -- Invoice was for expenses incurred for health care resulting from bodily injury arising from use or operation of automobile under s. 267.5(3) of Insurance Act -- Owner and driver immune from liability by virtue of s. 267.5(3) -- Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(3).
After a four-vehicle collision, the driver of Vehicle 2 and passengers in Vehicle 4 received first aid treatment from members of the Fire Department who responded at the scene of the accident. The cost of those services was billed to and paid by the Ministry of Transportation. The Ministry brought an action to recover that money from the driver and owner of Vehicle 1, the car which started the chain of collision. The action was dismissed. The Ministry appealed.
Held, the appeal should be dismissed.
The Ministry's claim was for recovery of a bill for medical first aid. The first aid services provided by the firefighters in this case was a Medical Benefit as defined in Part V -- Medical, Rehabilitation and Attendant Care Benefits of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96. The invoice was "for expenses that have been incurred . . . for health care resulting from bodily injury arising . . . from the use or operation of the automobile" as set out in s. 267.5(3) of the Insurance Act. The health care services were not provided to the owner and driver of Vehicle 1, and there was no contract between them and the Fire Department. The claim could not be characterized as one for "damage to the highway". By virtue of s. 267.5(3) of the Insurance Act, the owner and driver were immune from liability.
APPEAL by a plaintiff from a judgment dismissing an action.
Ontario (Attorney General) v. Fatehi, 1984 85 (SCC), [1984] 2 S.C.R. 536, 6 O.A.C. 270, 15 D.L.R. (4th) 132, 56 N.R. 62, 31 C.C.L.T. 1, 31 M.V.R. 301, distd [page268] Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, ss. 267.4, 267.5(3) Rules and regulations referred to Small Claims Court Rules, O. Reg. 258/98, rule 12.02(1) Statutory Accident Benefit Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, Part V
S.F. McNamee, for appellant. D.T.S. Wong, for respondents.
[1] FLYNN J.: -- This appeal came before me on April 29, 2003.
[2] The following day, I received by fax transmission from Mr. McNamee, counsel for the appellant, a letter which purported to "correct" and "clarify" one of his submissions in oral argument.
[3] On May 1, 2003, I received by fax transmission from Mr. Wong, counsel for the respondents, a letter asking me to disregard the submissions contained in Mr. McNamee's April 30th letter or otherwise allow Mr. Wong to reply.
[4] I have ignored both of these letters in coming to the following reasons.
[5] This is an appeal of the judgment of Deputy Small Claims Court Judge Patton, at Kitchener, on October 30, 2002, which dismissed the claim of the appellant-plaintiff with costs, after a motion under rule 12.02(1) of the Small Claims Court Rules, O. Reg. 258/98.
[6] The appellant is the Attorney General for Ontario as represented by the Ministry of Transportation.
[7] The respondents are the owner and driver of a motor vehicle which was involved in a four-car collision on Highway 403 in the municipality of Burlington on October 25, 1999.
[8] The appellants' claim was for the recovery of money paid by it to the Burlington Fire Department for services rendered as a result of the collision.
[9] The respondents' vehicle was Vehicle 1 on the police report. That vehicle struck the rear of Vehicle 2, which struck the rear of Vehicle 3, which struck the rear of Vehicle 4. The driver of Vehicle 2 and passengers in Vehicle 4 received first aid treatment from members of the Fire Department who responded to the scene of the accident. The cost of these services, $600, was billed to and paid by the appellant. The services rendered were clearly medical in nature. [page269]
[10] None of these first aid services were rendered to either of the respondents.
[11] Vehicles 2 and 4, whose occupants received the first aid services, were insured under valid automobile policies which included accident benefit coverage for medical benefits received by insured persons.
[12] The appellant says that the deputy judge erred in misinterpreting the following sections of the Insurance Act, R.S.O. 1990, c. I.8:
7.4 Sections 267.5 to 267.11 apply only to proceedings for loss or damage from bodily injury or death arising from the use or operation, after section 29 of the Automobile Insurance Rate Stability Act, 1996, comes into force, of an automobile in Canada, the United States of America or a jurisdiction designated in the Statutory Accident Benefits Schedule. 1996, c. 21, s. 29.
Health care expenses
267.5(3) Despite any other Act and subject to subsections (4) and (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile.
[13] The appellant also says that the damages suffered by the Ministry of Transportation were "property damage" in respect of the respondents and that the deputy judge failed to follow the decision of the Supreme Court of Canada in Ontario (Attorney General) v. Fatehi, 1984 85 (SCC), [1984] 2 S.C.R. 536, 15 D.L.R. (4th) 132.
[14] The interpretation of statutes is a question of law and the standard of appellate review thereon is one of correctness.
[15] The respondents say that the claim by the appellant is for recovery of a bill for medical first aid and that the first aid services rendered in this case by the firefighters is a Medical Benefit as defined in Part V -- Medical, Rehabilitation and Attendant Care Benefits, of the Statutory Accident Benefits Schedule -- Accidents on or after November, 1996, O. Reg. 403/ 96 set out in the regulations under the Insurance Act. I agree.
[16] Accordingly, it is my view that Deputy Judge Patton was correct in finding that the invoice was "for expenses that have been incurred . . . for health care resulting from bodily injury arising . . . from the use or operation of the automobile" as set out in s. 267.5(3) of the Insurance Act.
[17] It follows necessarily that the deputy judge was also correct in ruling that the respondents were not liable for those health care expenses, as represented by the appellants' claim for damages.
[18] None of these health care services were provided to the respondents by the Burlington Fire Department. There was no [page270] contract between the respondents and the Fire Department, and the Fire Department had no cause of action to require payment from the respondents, who received none of the services rendered.
[19] Here the appellant chose to pursue the respondents for payment, rather than those to whom the services were provided, on the theory that the respondents were responsible for the accident and that the invoice to the Attorney General from the Fire Department represented a property damage claim by the Attorney General against the respondents.
[20] The appellant says that the Ministry suffered no bodily injury and that therefore the respondents can't be rendered exempt from liability by operation of s. 267.5(3) of the Insurance Act.
[21] In this the appellant relies upon the Fatehi case (supra) and says that the deputy judge erred in not applying that decision here.
[22] In the Fatehi case, one lane of the highway was blocked because broken auto parts, debris and gasoline were strewn on the road as a result of the accident, and the Fire Department, in that case, was required to clean up the road itself and to remain at the scene in case of a fire emergency.
[23] The facts of this case are totally distinguishable from those in Fatehi, which deals with direct property damage to the property of the Ministry of Transportation.
[24] Moreover, the Fatehi case was decided prior to the 1990 amendments to the Insurance Act and prior to the enactment of the "no fault" accident benefit scheme.
[25] The deputy judge was correct in not categorizing the appellant's claim as "damage to the highway". The Fire Department's invoice/report discloses no other service rendered but first aid. There was even a "no" noted on the form to the question, "Was highway/MTO property damaged?"
[26] I agree that the Statutory Accident Benefits Schedule is applicable to the within action and that by virtue of s. 267.5(3) of the Insurance Act, the respondents can have no liability. The deputy judge was perfectly correct in dismissing the appellant's claim as disclosing no cause of action.
[27] Accordingly, this appeal is dismissed.
[28] The respondents shall have their costs here and in the Small Claims Court below. The Small Claims Court costs are to be dealt with or fixed in the usual way by the Deputy Small Claims Court Judge. The costs of this appeal are to be fixed by me after reviewing the written submissions of the parties, submitted in accordance with the following schedule: [page271]
The respondents shall deliver their written submissions on or before June 26, 2003;
The appellant shall deliver its written submissions on or before July 14, 2003; and
The respondents may deliver reply cost submissions on or before July 18, 2003.
Appeal dismissed.