Savard v. Royal & SunAlliance Insurance Company of Canada [Indexed as: Savard v. Royal & SunAlliance Insurance Co. of Canada]
109 O.R. (3d) 551
2012 ONSC 715
Ontario Superior Court of Justice,
Gauthier J.
February 13, 2012
Insurance -- Automobile insurance -- Interpretation and construction -- Accident -- Insured working underneath hoisted vehicle to remove engine in course of stripping vehicle for parts -- Vehicle falling on insured and injuring him -- Incident not constituting "accident" as defined in s. 2(1) of Statutory Accident Benefits Schedule -- Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, s. 2(1) .
The plaintiff was working underneath a hoisted motor vehicle, removing the engine in the course of stripping the vehicle for parts, when the vehicle fell on the plaintiff, injuring him. At that point, the exhaust had been unhooked, all the fluids had been drained and the front tires, radiator and wiring had been removed. The plaintiff submitted an application for accident benefits to the defendant. The defendant denied coverage on the basis that the incident was not an "accident" under s. 2(1) of the Statutory Accident Benefits Schedule. The plaintiff brought an action for a declaration that he was entitled to statutory accident benefits. The defendant brought a motion for summary judgment dismissing the action.
Held, the motion should be granted.
The incident did not result from an ordinary and well-known activity to which vehicles are put. The activity in which the plaintiff was engaged was a deliberate conversion of an operable vehicle to a completely disabled, disemboweled shell. The purpose and character of the vehicle was being radically changed. The activity was essentially the destruction of the vehicle as a vehicle. While dismantling vehicles for parts may be a common activity, it is one that occurs after the vehicle has ceased to be ordinarily used as a vehicle, i.e., as a means of transportation for persons or goods. The incident did not constitute an "accident" as defined in s. 2(1) of the Statutory Accident Benefits Schedule.
MOTION for summary judgment dismissing an action.
Cases referred toCitadel General Assurance Co. v. Vytlingham, [2007] 3 S.C.R. 373, [2007] S.C.J. No. 46, 2007 SCC 46 , 286 D.L.R. (4th) 577, 368 N.R. 251, J.E. 2007-1976, 230 O.A.C. 364, 53 C.C.L.I. (4th) 1, [2007] I.L.R. I-4645, 52 M.V.R. (5th) 1, 160 A.C.W.S. (2d) 1058, EYB 2007-124881; Elias v. Insurance Corp. of British Columbia, 1992 762 (BC SC) , [1992] B.C.J. No. 1857, 95 D.L.R. (4th) 303, 12 C.C.L.I. (2d) 135, 35 A.C.W.S. (3d) 461 (S.C.); Gramak Ltd. v. State Farm Mutual Automobile Insurance Co. (1976), 1975 427 (ON SC) , 10 O.R. (2d) 518, [1975] O.J. No. 2513, 63 D.L.R. (3d) 630, [1975] I.L.R. Â1-709 at 1304 (H.C.J.); Kracson v. Pafco Insurance Co. (1981), 1981 1687 (ON SC) , 32 O.R. (2d) 336, [1981] O.J. No. 2951, 121 D.L.R. (3d) 498, [1981] I.L.R. Â1-1441 at 512, 7 A.C.W.S. (2d) 464 (Co. Ct.); Swartz v. Pearson, [1986] O.J. No. 1149 (C.A.) , consd Other cases referred to Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC) , [1995] 3 S.C.R. 405, [1995] S.C.J. No. 74, 127 D.L.R. (4th) 618, 186 N.R. 150, [1995] 9 W.W.R. 305, 63 B.C.A.C. 1, 10 B.C.L.R. (3d) 1, 31 C.C.L.I. (2d) 1, [1995] I.L.R. 1-3232, 13 M.V.R. (3d) 302, 57 A.C.W.S. (3d) 640; Chisholm v. Liberty Mutual Group (2002), 2002 45020 (ON CA) , 60 O.R. (3d) 776, [2002] O.J. No. 3135, 163 O.A.C. 129, 43 C.C.L.I. (3d) 58, 33 M.V.R. (4th) 165, 116 A.C.W.S. (3d) 264 (C.A.); [page552] Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764 , 286 O.A.C. 3; Downer v. Personal Insurance Co. (2011), 107 O.R. (3d) 65, [2011] O.J. No. 3806, 2011 ONSC 4980 , [2011] I.L.R. I-5185; Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 21045 (ON CA) , 72 O.R. (3d) 338, [2004] O.J. No. 3485, 243 D.L.R. (4th) 635, 190 O.A.C. 64, 13 C.C.L.I. (4th) 292, [2004] I.L.R. I-4331, 11 M.V.R. (5th) 13, 133 A.C.W.S. (3d) 337 (C.A.); Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., 1993 150 (SCC) , [1993] 1 S.C.R. 252, [1993] S.C.J. No. 10, 99 D.L.R. (4th) 741, 147 N.R. 44, [1993] 2 W.W.R. 433, J.E. 93-230, 83 Man. R. (2d) 81, 13 C.C.L.I. (2d) 161, 6 C.L.R. (2d) 161, [1993] I.L.R. Â1-2914 at 2206, 37 A.C.W.S. (3d) 1267; Stevenson v. Reliance Petroleum Ltd., 1956 27 (SCC) , [1956] S.C.R. 936, [1956] S.C.J. No. 68, 5 D.L.R. (2d) 673, [1956] I.L.R. Â1-238 at 127 Rules and regulations referred to B.C. Reg. 447/83 (Insurance (Vehicle) Act), s. 79(1) [as am.] Statutory Accident Benefits Schedule -- Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93 Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96, s. 2(1) [as am.]
Gerard E. McAndrew, for plaintiff. Scott T. Croteau, for defendant.
GAUTHIER J.: -- Overview
[ 1 ] The defendant, Royal and Sun Alliance Insurance Company of Canada ("Royal"), seeks summary judgment dismissing the plaintiff's action, and costs of the motion and the action. The plaintiff ("Savard") sued Royal for the following: (a) a declaration that he is entitled to accident benefits; and (b) damages for breach of contract in the amount of $500,000 for failure to pay accident benefits.
[ 2 ] The claim is in connection to injuries Savard sustained on September 8, 2006, when he was in the process of removing an engine from a motor vehicle owned by either an acquaintance of Savard, Mike Logan, or by Mike Logan's mother.
[ 3 ] At the hearing of the motion, both counsel agreed that the issue to be determined before me was whether the incident of September 8, 2006 constituted an "accident" as defined under s. 2(1) of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996, O. Reg. 403/96 .
[ 4 ] If the incident constituted such an accident, the motion for summary judgment fails and the matter proceeds to trial. If the incident did not constitute such an accident, then the motion for [page553] summary judgment is granted, there being no genuine issue requiring a trial. A full appreciation of the evidence and issues that is required to make dispositive findings is achievable on this motion for summary judgment, and does not require a trial, as there are virtually no contentious issues: see Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1, [2011] O.J. No. 5431, 2011 ONCA 764 , at paras. 50 and 52 . Facts
[ 5 ] Royal issued an automobile insurance policy to Savard. The policy was in effect at all material times.
[ 6 ] A couple of days before September 8, 2006, the Logan vehicle was brought to Ronald Langlois' auto repair garage in order for Langlois to investigate the wiring in the vehicle. It was determined that the wiring was burned and that the cost of repairs would exceed the value of the vehicle.
[ 7 ] According to Savard, on the morning that he began to work on the vehicle, on September 8, 2006, the vehicle had been in operating condition and could have been driven away.
[ 8 ] Savard and Logan agreed that the tires, rims, engine and transmission would be removed from the vehicle, and sold. Once that was done, the vehicle would be left with Langlois to compensate him for the work done in diagnosing the electrical problem and estimating the cost of repair. Savard was to receive the engine.
[ 9 ] The vehicle was pushed outside of the garage and one or two days later, on September 8, 2006, Savard and Logan began to work on the vehicle. They unhooked the exhaust, drained all the fluids, including oil and antifreeze, removed the front tires, removed the radiator, hoses, belts, wiring and other items from under the hood of the vehicle. It is agreed that, at this point, the vehicle was not operational, was not going to be used to transport anything from that point forward and was destined to be crushed. It was to become scrap metal.
[ 10 ] The vehicle was lifted with a backhoe and tire rims were used to suspend the vehicle above the ground. It was attached to the backhoe with two chains. Savard began to work underneath the vehicle, to remove the engine. About one hour into the work, the vehicle came down on Savard. He sustained the following injuries: (a) an unstable fracture of T12 with compression of the body and dislocation at the facet joint with kyphotic deformity, a pneumothorax and rib fractures.
[ 11 ] On March 16, 2007, Savard submitted to Royal an application for accident benefits. On May 4, 2007, Royal denied coverage, indicating that the event of September 8, 2006, was not [page554] an accident under s. 2(1) of the Statutory Accident Benefits Schedule.
[ 12 ] Savard's Statement of Claim was issued on March 28, 2008.
[ 13 ] Royal delivered its Statement of Defence on May 8, 2008. Issue
[ 14 ] Does the event of September 8, 2006, that is, the Logan vehicle falling on Savard, constitute an "accident" as defined under s. 2(1) of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996 ? Position of the Parties
Royal
[ 15 ] Royal submits that stripping the motor vehicle for parts does not constitute use or operation of an automobile. At the time of the incident, the vehicle was not roadworthy, nor was it operational. At the point in time when the incident occurred, the vehicle could not be used as a motor vehicle. Therefore, as it could not be used or operated as an automobile, the unfortunate incident was not an "accident".
[ 16 ] It suggests further that, even if it could be considered as such, Savard must establish that such use or operation of an automobile directly caused his injuries.
[ 17 ] It is Royal's position that the intervening acts of using a backhoe to lift the vehicle and suspending it with cables resulted in Savard's injuries. Therefore, the injuries were not directly caused by the use or operation of an automobile.
[ 18 ] Royal relies on the Supreme Court of Canada's decision in Citadel General Assurance Co. v. Vytlingham, [2007] 3 S.C.R. 373, [2007] S.C.J. No. 46, 2007 SCC 46 , where Justice Binnie said, at para. 25, that "[f]or coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made".
[ 19 ] As well, Royal submits that the causation requirement is more stringent, or narrower, as a result of the amendments to the 1996 schedule, and relies on Chisholm v. Liberty Mutual Group (2002), 2002 45020 (ON CA) , 60 O.R. (3d) 776, [2002] O.J. No. 3135 (C.A.).
[ 20 ] Summary judgment dismissing the action should be granted.
Savard
[ 21 ] Savard submits firstly that coverage provisions in private insurance policies are to be interpreted broadly in favour of the [page555] insured: see Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC) , [1995] 3 S.C.R. 405, [1995] S.C.J. No. 74.
[ 22 ] Savard acknowledges that the purpose test, articulated in Amos, applies. The test is whether the accident resulted from the ordinary and well-known activities to which automobiles are put: see Amos, at para. 17 .
[ 23 ] Savard suggests that it is usual and ordinary for a vehicle to have its parts removed for reuse or resale.
[ 24 ] Increasingly, motor vehicles are being dismantled for reusable, recyclable and reconstructible parts.
[ 25 ] In Savard's experience in the automotive industry, "fully 75% of all vehicles at the end of their useful lives have their parts harvested": see para. 8 of Savard's affidavit, sworn December 19, 2011.
[ 26 ] It is Savard's submission that the activity of dismantling a vehicle for parts is an ordinary and well-known activity to which automobiles are put, thus meeting the purpose test. Savard submitted two documents, from the University of Windsor, downloaded from the Internet, relating to studies concerning the efficiencies of dismantling and shredding systems in terms of parts and materials recovery. It seems that thousands of vehicles are dismantled yearly, and as much as 12 per cent of reusable, remanufacturable and recyclable vehicle parts and materials are recovered prior to shipping the vehicle hulks for metal recovery.
[ 27 ] Savard submits that ordinary and well-known activities to which automobiles are put has been found to have broad meaning, including the siphoning of gasoline to clean the cylinder head of a motorcycle, modifying wiring and the preparation for and carrying out of vehicle maintenance: see Elias v. Insurance Corp. of British Columbia, 1992 762 (BC SC) , [1992] B.C.J. No. 1857, 95 D.L.R. (4th) 303 (S.C.). In that case, repair work was found to come within the meaning of "use".
[ 28 ] Savard suggests that the dismantling of the vehicle for parts is not dissimilar to drilling a hole in the trunk of an automobile to connect wiring from the car to a trailer, which were the facts in Gramak Ltd. v. State Farm Mutual Automobile Insurance Co. (1976), 1975 427 (ON SC) , 10 O.R. (2d) 518, [1975] O.J. No. 2513 (H.C.J.). In that case, Donohue J. found that the activity was included in the meaning of "accommodation or service", as that was described by Rand J. in Stevenson v. Reliance Petroleum Ltd., 1956 27 (SCC) , [1956] S.C.R. 936, [1956] S.C.J. No. 68.
[ 29 ] A backhoe is typically used to lift "bone yard" vehicles, that is, vehicles already in a state of disrepair and not destined to be put back on the road. [page556]
[ 30 ] With regard to Royal's submission regarding the backhoe, chains and rims constituting intervening acts, Savard replies that one direct cause of the impairment is the vehicle falling on Savard. The use of the backhoe, chains and rims could also be direct causes. So long as the vehicle falling on Savard is ONE direct cause, then that suffices to entitle him to coverage and to benefits.
[ 31 ] Savard refers to Downer v. Personal Insurance Co. (2011), 107 O.R. (3d) 65, [2011] O.J. No. 3806, 2011 ONSC 4980 , where Murray J. reiterates what the Court of Appeal stated in Chisholm v. Liberty Mutual Group, that there can be more than one direct cause of the injuries. At para. 15, Murray J. indicates that "the question is whether it can be said that the use or operation of the motor vehicle was 'a direct cause' of the injuries rather than 'the direct cause'". Analysis
[ 32 ] The Statutory Accidents Benefits Schedule -- Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93 defined "accident" as follows:
"accident" means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or medical or dental device[.]
[ 33 ] In 1995, in Amos, the Supreme Court of Canada was interpreting s. 79(1) of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 , dealing with no-fault death and disability benefits, and articulated the two-part test to be applied when assessing the issue of entitlement to accident benefits: (a) Did the accident result from the ordinary and well-known activities to which automobiles are put? (b) Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant's injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?
[ 34 ] Amos traced the purpose test to Stevenson v. Reliance Petroleum Ltd., where Rand J. wrote the following, at p. 941 S.C.R.: [page557]
The expression "use or operation" would or should, in my opinion, convey to one reading it all accidents resulting from the ordinary and well-known activities to which automobiles are put, all accidents which the common judgment in ordinary language would attribute to the utilization of an automobile as a means of different forms of accommodation or service.
[ 35 ] The 1996 Statutory Accident Benefits Schedule removed the word "indirectly" from the definition of "accident". Section 2(1) of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996 reads as follows:
"accident" means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device[.]
[ 36 ] The 1996 limiting amendment resulted in insured persons having to meet a more stringent causation test in order to be entitled to accident benefits. At para. 35 of Chisholm, Laskin J.A. wrote this:
The 1996 Schedule reflects a government policy decision. The government decided to circumscribe the insurance industry's liability to pay no-fault benefits by holding it responsible only for injuries directly caused by the use or operation of a car. Like almost any statutory standard, the direct causation requirement will, at the margins, produce hard cases, perhaps even sympathetic cases and seemingly arbitrary results.
[ 37 ] According to Chisholm, the stringent causation requirement resulting from the amendment to the 1996 schedule precludes the application of the causation part of the Amos test. The causation test articulated in Amos can no longer assist in the interpretation of "accident", and it has been modified by the Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 21045 (ON CA) , 72 O.R. (3d) 338, [2004] O.J. No. 3485 (C.A.), as follows [at para. 36]:
If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In that sense, can it be said that the use or operation of the vehicle was a "direct cause" of the injuries? Purpose
[ 38 ] The purpose test continues to be used in interpreting the definition of "accident", and, at para. 24 of Greenhalgh v. ING Halifax Insurance Co., the Court of Appeal stated:
The Amos purpose tests asks whether the accident in question resulted from the ordinary and well-known activities to which automobiles are put. Arguably, this question would apply whenever a court sets out to interpret any legislation dealing with automobile insurance; the common denominator in any situation falling under automobile insurance legislation is a situation wherein a car is put to use in an ordinary way. Second, absent clear language, [page558] it is presumed that most automobile insurance legislation is not intended to cover uses of cars that are not ordinary and well-known. Neither insurance companies nor the insured would expect coverage to extend to any and every use to which a car may be put, no matter how unforeseen or unprecedented. (For example, would a car insurance policy cover an accident which arose where an insured attempted to lift his car solely to show his strength, thereby hurting his back?) If that is the case, then the Amos purpose test may act as a sort of filter; before determining whether the accident was causally connected to the use of the car, it has to be determined whether the car was being used in a manner that would be covered by the insurance at all.
[ 39 ] In addressing the Amos purpose test, in the context of "inadequately insured motorist" coverage, Binnie J. wrote this in Citadel General Assurance Co. v. Vytlingam, at paras. 16 and 19 , respectively:
While no-fault insurance and indemnity insurance rest on different statutory provisions, both fall to be interpreted in the context of a motor vehicle policy. When Major J. said in Amos that it was a condition of no-fault coverage that the claim relate to "the ordinary and well-known activities to which automobiles are put" (para. 17), he was simply signalling that someone who uses a vehicle for a non-motoring purpose cannot expect to collect motor vehicle insurance. If, for example, a claimant got drunk and used her car as a diving platform from which to spring head first into shallow water, and broke her neck, she could not reasonably expect coverage from her motor vehicle insurer, even though, in a sense, she "used" her motor vehicle as a motor vehicle. . . . . .
The "ordinary and well-known activities to which automobiles are put" limits coverage to motor vehicles being used as motor vehicles, and would exclude use of a car as a diving platform (as above) or retiring a disabled truck to a barn to store dynamite (which explodes), or negligently using the truck as a permanent prop to shore up a drive shed (which collapses, injuring someone). In none of these cases could it be said that the tortfeasor was at fault as a motorist. In none of these cases could it be said that the motor vehicle was being used as a motor vehicle. That is the sort of aberrant situation that the Amos purpose test excludes, and nothing more.
[ 40 ] The first question to ask in the present case is whether the September 8, 2006 incident resulted from an ordinary and well-known activity to which vehicles are put. Was the removal of the parts for resale, reuse or recycle an ordinary and well- known activity? Or, in the language of Stevenson, was the removal of parts for resale, reuse or recycle an activity which the common judgment in ordinary language would include as a form of accommodation or service in the utilization of an automobile.
[ 41 ] In addition, it must be remembered that coverage clauses are traditionally interpreted broadly in favour of the insured, whereas exclusion clauses are interpreted narrowly against the insurer: see Amos, at para. 16 . Even on a broad interpretation of [page559] the coverage clause, I conclude, on the facts of this case, that Savard has not met the purpose test.
[ 42 ] As liberally as one might choose to interpret accident benefit legislation, "it must be remembered that this is automobile legislation": see Greenhalgh v. ING Halifax Insurance Co., at para. 51 .
[ 43 ] According to Binnie J. in Citadel, at para. 4, "[i] nsurance policies must be interpreted in a way that gives effect to the reasonable expectations of both insured and insurer": see Binnie J., citing to Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., 1993 150 (SCC) , [1993] 1 S.C.R. 252, [1993] S.C.J. No. 10, at p. 269 S.C.R.
[ 44 ] The work being done on September 8, 2006 was not maintenance to further the use or operation of the vehicle, as in Kracson v. Pafco Insurance Co. (1981), 1981 1687 (ON SC) , 32 O.R. (2d) 336, [1981] O.J. No. 2951 (Co. Ct.). Nor was it a necessary mechanical adjustment of the vehicle, to enhance its use, i.e., to haul a trailer, as in Gramak Ltd. v. State Farm Mutual Automobile Insurance Co. Neither was it repair work to prevent deterioration of the vehicle, with a view to extending its period of service as a vehicle, as was the case in Elias v. Insurance Corp. of British Columbia.
[ 45 ] I note as well that neither Gramak, nor Kracson, nor Elias was a Staturoty Accidents Benefits Schedule ("SABS") case. As well, Gramak and Kracson were decided before the no- fault regime was adopted in Ontario.
[ 46 ] The activity in which Savard was engaged on September 8, 2006 was a deliberate conversion of what he said had been an operable vehicle, to a completely disabled, disembowelled shell. The purpose and character of the vehicle was being radically changed. The activity was essentially the destruction of the vehicle as a vehicle. It became a collection of parts and a hulk. It could no longer be used as an automobile.
[ 47 ] Before the vehicle was hoisted up with the backhoe and attached to it with chains, all the fluids had been drained, including oil and antifreeze. The front tires had been removed. The radiator, hoses, belts, wiring and other items from under the hood of the vehicle had been removed. The vehicle could no longer function as an operating vehicle.
[ 48 ] While dismantling vehicles for parts for recycle, reuse or resale may be a common activity, I would characterize such activity as one that occurs after the vehicle has ceased to be ordinarily used as a vehicle, i.e., as a means of transportation for persons or goods.
[ 49 ] In my view, Savard's interpretation of the words "use or operation of an automobile" goes beyond what the common [page560] judgment in ordinary language would include as a form of accommodation or service in the utilization of an automobile.
[ 50 ] In reaching the conclusion that the activity of September 8, 2006 was not an ordinary and well-known activity that is part of the utilization of a vehicle, I have also relied upon the Court of Appeal's decision in Swartz v. Pearson, [1986] O.J. No. 1149 (C.A.) . In that case, an older model vehicle was being stripped to be rebuilt as a demolition derby vehicle. The battery had been removed, and other parts were being cut away by someone using a cutting torch. In applying the Stevenson case, the Court of Appeal concluded that the activity was not an orthodox, ordinary or well-known activity.
[ 51 ] Borrowing from Justice Binnie's language in the Citadel case, it cannot be said that the vehicle that Savard was working under was being used as a vehicle, in order to entitle Savard to no-fault benefits from his insurer.
[ 52 ] Justice Binnie's comments, contained in para. 16 of Citadel, referred to earlier, bear repeating:
When Major J. said in Amos that it was a condition of no- fault coverage that the claim relate to "the ordinary and well-known activities to which automobiles are put", he was simply signalling that someone who uses a vehicle for a non- motoring purpose cannot expect to collect motor vehicle insurance.
[ 53 ] It would be unreasonable to characterize the stripping of a vehicle for its parts and for its value as scrap metal as a "motoring purpose".
[ 54 ] Having reached this conclusion, I need not address the modified Amos causation test. Conclusion
[ 55 ] The event of September 8, 2006, that is, the Logan vehicle falling on Savard, did not constitute an "accident" as defined in s. 2(1) of the Statutory Accident Benefits Schedule -- Accidents on or after November 1, 1996 , entitling Savard to accident benefits, as it was not an incident in which the use or operation of an automobile caused an impairment.
[ 56 ] There is no genuine issue requiring a trial. Summary judgment dismissing the claim is granted.
[ 57 ] If the parties are unable to agree on costs, they are to communicate with the trial coordinator within 20 days of this decision to set a date and time for costs to be argued, failing which the parties will be taken to have agreed on costs and no costs order will be made. I am prepared to conduct the costs hearing by way of teleconference call, should counsel so request.
Motion granted.