CITATION: Gaudette v. 1929853 Ontario Limited (Property Maintenance North), 2025 ONSC 5746
DIVISIONAL COURT FILE NO.: DC-24-2219
DATE: 2025-10-09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Angele Gaudette
Appellant
– and –
1929853 Ontario Limited
o/s Property Maintenance North
Respondent
Angele Gaudette appearing on her own behalf
Sara L. Fretwell, for the Respondent
HEARD: September 26, 2025
decision on appeal
s.k. stothart j.
Overview
[1] This is an appeal of the judgement of Deputy Small Claims Court Judge E.J. Paquette, at Sudbury, on September 11, 2024, which dismissed the claim of the Appellant-Plaintiff with costs, after a motion under Rule 12.02 of the Rules of the Small Claims Court, O. Reg. 258/98.
[2] For the reasons that follow, I find that the presiding Deputy Small Claims Judge erred in concluding that the action was statute barred by the Insurance Act R.S.O. 1990, c.I.8. The appeal is therefore allowed, and the matter is remitted back to the Small Claims Court for determination.
Background
[3] Angele Gaudette alleges that during the early morning hours of January 28, 2023, her parked personal vehicle was damaged by 1929853 Ontario Limited operating as Property Maintenance North, while it was removing snow from the parking lot outside her cooperative residence unit using a backhoe or snow plough. The incident was allegedly captured by video surveillance. At the time of this alleged incident, Ms. Gaudette’s vehicle was insured with CAA insurance. She reported the incident to the Greater Sudbury Police Collision Reporting Centre on February 2, 2023.
[4] Ms. Gaudette commenced a small claims action against Property Maintenance North on May 9, 2023, seeking damages to cover the cost of a vehicle inspection, required repairs to the vehicle due to the collision, $2,000 for suffering and loss resulting from the accident, and $500 to compensate for inconvenience and expenses. The claim alleged that these damages were incurred as a result of the defendant’s negligence while it was removing snow from the parking lot. The claim was defended. In its initial statement of defence Property Maintenance North identified the snow removal equipment in question as a backhoe CAT 420 XE. It denied causing damage to Ms. Gaudette’s vehicle and put her to strict proof of this.
[5] On July 9, 2024, Property Maintenance North brought a motion to strike the claim on the basis that it was statutory barred under s. 258.3(1) and 263(5) of the Insurance Act, R.S.O. 1990, c.I.8. On September 11, 2024, Small Claim Deputy Judge E. J. Paquette struck the claim as statute barred and unable to succeed in law.
Analysis
[6] In this appeal, Ms. Gaudette submits that the Small Claims Deputy Judge erred in concluding that her case fell within s. 263 and was therefore statute barred. She submits that the circumstances of this case fall outside that provision because:
a. Property Maintenance North was operating a snow plough/backhoe at the time the damage was incurred. A backhoe is a “Road Building Machine” under the Highway Traffic Act and does not fall within the standard passenger vehicle classification which is required for s.263(5) to apply;
b. Property Maintenance North did not notify her of the damage to her vehicle which was a separate breach of their duty of care; and
c. The contract between the Co-operative Housing Corporation and Property Maintenance North for snow removal established a separate contractual duty. Ms. Gaudette submits that as a member of the Cooperative this allows her to pursue a claim based on a contractual breach.
[7] The standard of review for questions of law or the application of a legal principle to a set of facts is that of correctness: Housen v. Nikolaisen, 2002 SCC 33 at paras. 8, 36.
[8] I am satisfied that the presiding Small Claims Court Judge erred in law when he concluded that s. 263 operated as a statutory bar to Ms. Gaudette’s claim in the circumstances of this case where it is alleged that Property Maintenance North was operating a backhoe at the time of the alleged collision and in the absence of any evidence that the backhoe was insured by a motor vehicle insurance policy.
[9] In light of my conclusion on this ground of appeal, I need not address the other two grounds.
Application of section 263 of the Insurance Act
[10] Section 263(1) of the Insurance Act provides that this section applies if:
(a) an automobile or its contents, or both, suffers damage arising directly or indirectly from the use or operation in Ontario of one or more other automobiles;
(b) the automobile that suffers the damage or in respect of which the contents suffer damage is insured under a contract evidenced by a motor vehicle liability policy issued by an insurer that is licensed to undertake automobile insurance in Ontario or that has filed with the Chief Executive Officer, in the form provided by the Chief Executive Officer, an undertaking to be bound by this section; and
(c) at least one other automobile involved in the accident is insured under a contract evidenced by a motor vehicle liability policy issued by an insurer that is licensed to undertake automobile insurance in Ontario or that has filed with the Chief Executive Officer, in the form provided by the Chief Executive Officer, an undertaking to be bound by this section.
[11] Section 263(5) of the Insurance Act provides that if s. 263 applies:
(a) an insured has no right of action against any person involved in the incident other than the insured’s insurer for damages to the insured’s automobile or its contents or for loss of use;
(a.1) an insured has no right of action against a person under an agreement, other than a contract of automobile insurance, in respect of damages to the insured’s automobile or its contents or loss of use, except to the extent that the person is at fault or negligent in respect of those damages or that loss;
(b) an insurer, except as permitted by the regulations, has no right of indemnification from or subrogation against any person for payments made to is insured under this section.
[12] Property Maintenance North submits that s. 253(5) applies to damage caused to an insured’s automobile regardless of what caused the damage. This is incorrect. Section 263 states that the provision applies when damage is caused to an insured automobile by one or more automobiles, at least one of which is insured.
[13] Automobile is not specifically defined under the Insurance Act. Under Part VI of the Insurance Act, s. 224(1) provides that an “automobile” includes a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and a vehicle prescribed by regulations to be an automobile.
[14] Courts have found that the use of the word “includes” in s. 224(1) demonstrates an intent to expand the scope of “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: Copley v. Kerr Farms Ltd, 2002 44900 (ON CA), 2002 CarswellOnt 1421 (Ont.C.A) at para. 12.
[15] The Ontario Court of Appeal has held that defining an “automobile” under s. 224(1) requires a two-step analysis. First the court must determine 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. 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 policy: Copley v. Kerr Farms Ltd., at para.13.
[16] In Morton v. Rabito, 1998 CarswellOnt 4786 (Ont.C.A.), the Court of Appeal held that a backhoe is not an “automobile” under s. 224(1) because it not considered an automobile in the ordinary sense, and it is not subject to automobile insurance.
[17] In this case, Property Maintenance North pled in its statement of defence that it used a backhoe when clearing snow from the parking lot of the Cooperative Housing Unit. While it pled that the action was statute barred by the Insurance Act, it did not plead that it was using an automobile at the time of the alleged incident or that the backhoe had automobile insurance.
[18] It is not surprising that the presiding Small Claims Deputy Judge did not address this issue in his decision because it was not raised directly in either the oral or written submissions provided by either the plaintiff or the defendant. Ms. Gaudette’s oral and written submissions to the court were lengthy and unfocused and it is understandable that this issue may have gone unnoticed and unaddressed.
Appropriate remedy
[19] Ms. Gaudette seeks that this court set aside the Small Claims Deputy Judge’s decision and enter a judgement in her favour. While I am satisfied that the decision should be set aside, I am not satisfied that this court should enter judgement in her favour. The action was dismissed on motion as statute barred. It did not proceed to a determination on its merits. The appropriate remedy in this case is to remit the matter back to the Small Claims Court for a determination on its merits.
Conclusion
[20] For these reasons, the appeal is allowed and the matter is remitted back to the Small Claims Court for trial.
Costs of the appeal
[21] At the conclusion of submissions, the parties requested that they be permitted the opportunity to provide written submissions on the issue of costs. Given that the appellant has been successful on this appeal, Ms. Gaudette shall have 15 days from the release of this decision to serve and file written submissions on the issue of costs. These written submissions shall be no more than 2 pages in length. The respondent, Property Maintenance North, shall have 15 days following the receipt of the appellant’s written submissions to file responding written submissions. These submissions shall be no more than 2 pages in length. If written submissions are not received within these times frames, they will be deemed to have been determined between the parties.
The Honourable Mr. Justice S.K. Stothart
Released: October 9,2025
CITATION: Gaudette v. 1929853 Ontario Limited (Property Maintenance North), 2025 ONSC 5746
DIVISIONAL COURT FILE NO.: DC-24-2219
DATE: 2025-10-09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Angele Gaudette
Appellant
– and –
1929853 Ontario Limited
o/s Property Maintenance North
Respondent
DECISION ON APPEAL
S.K. Stothart J.
Released: October 9, 2025