COURT FILE NO.: CV-18-1459

DATE: 20221207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RYAN DUMOULIN and RACHAEL KYLE

Plaintiffs

– and –

MICHAEL BINDER, JOHN DOE, UNICA INSURANCE and AVIVA INSURANCE COMPANY OF CANADA

Defendants

Daniel J. Balena and David G.L. Edwards, for the Plaintiffs responding party

David. A Zuber and Christian Genova, for the Defendant, Michael Binder, moving party

Penny Georgoudis, for the Defendant, Unica Insurance

HEARD: October 24-25, 2022

REASONS on motion for the determination of a question of law

MCCARTHY J.

[1] The Defendant Binder brings a motion for the determination before trial of a question of law under r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

[2] The relevant part of the rule for the purposes of this motion reads as follows:

(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial savings of costs;

and the judge may make an order or grant judgment accordingly.

(2) No evidence is admissible on a motion,

(a) under clause (1)(a), except with leave of a judge or on consent of the parties

Background

[3] On August 13, 2016, Ryan Dumoulin (“the Plaintiff”) was driving his uninsured dirt bike (“the dirt bike”) across private property in the vicinity of 549 LaSalette Road in Norfolk County (“the property”). The Defendant Binder was operating his pick-up truck (“the Defendant’s truck”) in pursuit of the dirt bike when the two vehicles collided causing the Plaintiff bodily injuries (“the incident”).

[4] The Plaintiff issued a statement of claim on June 7, 2018, claiming damages for the injuries suffered. In addition to Binder, the Plaintiff also named Unica and Aviva as Defendants pursuant to certain provisions of automobile insurance policies under which the Plaintiff might be an insured.

[5] Following examinations for discovery, the Defendant Binder amended his statement of defence to plead certain defences that may be available to him under the provisions of the Insurance Act, R.S.O. 1990, c. I.8 (“IA”), the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (“CAIA”) and the Off-Road Vehicles Act, R.S.O. 1990, c. O.4 (“ORVA”).

Limited Facts

[6] The parties have agreed on the following facts:

a. On the date in question, the Plaintiff was not an occupier of the property.

b. On the date in question, the Plaintiff did not have the consent of the property owner to operate the dirt bike across that property.

c. On the date in question, the dirt bike was not insured under an automobile insurance policy.

d. There is also no dispute that the dirt bike is an off-road vehicle, an automobile, and a motor vehicle for the purposes of the relevant legislation. Nor is there any dispute that any collision between the Defendant’s truck and the Plaintiff’s dirt-bike took place on private property and not on a “highway” as defined.

[7] On the consent of the parties, and with leave of the court, other evidence was adduced for the hearing of the motion which included various affidavits, transcripts, and the viva voce evidence from the cross-examination of the Plaintiff on his affidavit dated May 26, 2022.

[8] The court was also furnished with a series of maps/diagrams which attempted to establish the route taken by the Plaintiff and his dirt-biking companions in the time leading up to the collision. While there is general agreement on the route traversed by the Plaintiff and others that day, the parties were unable to agree on whether the Plaintiff actually operated the dirt bike along or across any highway that day or whether, as he states, the Plaintiff and the others dismounted from their respective dirt bikes in order to traverse on foot the highways which they encountered along their route. It is beyond the scope of a rule 21 motion to make such a factual determination: see Kaynes v. BP p.l.c., 2021 ONCA 36, at para. 81. As will become apparent from my reasons, in the unique circumstances of this case, such a determination is not germane to the question to be determined.

The Question

[9] The question of law for determination is the following:

Is the Plaintiff barred from an action in tort as against the Defendant due to his operation of an uninsured dirt bike at the area of loss, at the material time?

The Relevant Legislation

[10] Under s. 267.6(1) of the IA,

Despite any other Act, a person is not entitled in an action in Ontario to recover any loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2 (1) of the Compulsory Automobile Insurance Act in respect of that automobile.

[11] Under s. 2(1) of the CAIA,

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.

[12] Under s. 15(1) of the ORVA,

No person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act.

Principles of Statutory Interpretation

[13] The interpretation of the Ontario legislation at issue must also be guided by s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, which provides that:

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

Discussion

[14] As stated by the ONCA in Matheson et al. v. Lewis et al., 2014 ONCA 542, 121 O.R. (3d) 641, at para. 36:

The starting point for a purposive analysis of Ontario’s compulsory insurance regime is s. 2(1) of the Compulsory Automobile Insurance Act, which prohibits an owner of a motor vehicle from operating it on a highway unless the motor vehicle is insured under a contract of automobile insurance. As the motion judge noted, at para. 55, Ontario’s compulsory automobile insurance regime “is clearly intended to protect innocent victims of automobile accidents from having no mean of seeking damages from persons who might have caused those damages without having the protection of automobile insurance”.

[15] On the other hand, the Court of Appeal has made it clear that a motor vehicle that is not being operated on a public highway is not subject to the prohibition in s. 2(1) and is, therefore, not “required under any Act to be insured under a motor vehicle liability policy”: see Copley et al. v. Kerr Farms Limited (2002), 2002 CanLII 44900 (ON CA), 59 O.R. (3d) 346, at para. 31.

[16] The wrinkle in the case at bar is that s. 15(1) of the ORVA does require that an off-road vehicle (viz., a dirt-bike) that is driven be insured under a motor vehicle liability policy. The only exception to this is found in s. 15(9) which states that the mandatory insurance provision does not apply where the vehicle is driven on land occupied by the owner of the vehicle. Sections 15(6) and 15(7) of the ORVA set out a monetary fine as the only punishment for a driver or an owner in contravention of the ORVA insurance requirement.

[17] That said, on its face, a contravention of the ORVA does not invoke the restrictive provision of the IA. A contravention of the CAIA does; and that contravention does not materialize unless the uninsured motor vehicle is being operated on a highway. What the Defendant suggests s. 267.6(1) of the IA is meant to say is, with respect, precisely what the section does not say: that a person operating a motor vehicle/automobile (including a dirt-bike) which is uninsured is precluded from bringing a claim for damages for bodily injury or death against any tort-feasor. It would have been easy enough for the Legislature to impose a blanket prohibition on uninsured drivers bringing actions in tort. Such a blanket prohibition might well serve the public interest; it might advance the objective of universal insurance coverage. But such a prohibition does not exist.

[18] There is certainly nothing in the ORVA which serves as an impediment to an insured dirt-biker bringing a tort claim for her damages. One must look to the CAIA; but that Act does not prohibit operation of an uninsured vehicle anywhere but on a highway. The only “contravention” under s. 267.6(1) of the IA which results in the loss of entitlement to bring an action is one under the CAIA; and the prohibition there stems from the operation of an uninsured vehicle on a highway.

[19] Had the Legislature intended to comprehensively, definitely and without exception deprive persons operating motor vehicles/automobiles without insurance from pursuing damages against tort-feasors it could have, would have, and dare I say should have, employed more definitive language in s. 267.6(1) of the IA.

[20] Some time ago, the Supreme Court of Canada articulated the specific presumption against interference with the right to bring an action. In Berardinelli v Ontario Housing Corp. (1978), 1978 CanLII 42 (SCC), [1979] 1 S.C.R. 275 at p. 280, the court warned that any ambiguity and uncertainty “should be resolved in favour of the person whose right of action is being truncated.”

[21] There may indeed be a hole, even a gaping one, in the legislative scheme, one which leaves it at best highly uncertain whether the prohibition preventing persons operating uninsured motor vehicles from pursuing tort claims was meant to be a blanket prohibition or one that was limited to the particular activity of operating such an uninsured motor vehicle on a highway. It is not for this court to fill that hole with a prohibition that does not flow from the plain language employed in the relevant sections. Words found in such legislation have to mean something; the use of the words “operate a motor vehicle on a highway” are capable of no other reasonable interpretation but that the offending motor vehicle must be operated on highway at the time of the incident for the rights depriving prohibition to apply.

“At the time of the incident”

[22] The Defendant urges the court to give an expansive meaning to the critical wording “at the time of the incident” found in s. 267.6(1) of the IA. The words “time” and “incident” should be viewed broadly: they should encompass both the material time and the context and circumstances of the incident. The Defendant contends that by taking this broader approach, the court would be both employing modern statutory interpretation and advancing the public policy purpose of the legislative scheme which is to bar a person from pursuing an action in tort if at the material time, that person operates his motor vehicle without insurance.

[23] That contention is an interesting and even attractive one; however, I find that it would be stretching the meaning of “time” and “incident” far beyond their plain and ordinary meanings to afford them the interpretation suggested by the Defendant.

[24] In my view, “the time of the incident” can only refer to the bodily injury causing event, in this case the collision between the truck and the dirt bike. While a consideration of negligence, including contributory negligence, if any, will necessarily involve a review of the context and surrounding circumstances in which the collision took place, the temporal parameters in which the “incident” took place must be set within a brief passage of time on either side of the collision. This is because any bodily or psychological injury which resulted from the incident either arose from the collision itself (viz. orthopedic injuries) or in the case of psychological trauma in the moments leading up to the collision when the Plaintiff perceived that he was being pursued by the Defendant. It may well be that the Plaintiff did, on one or two occasions that day, ride the uninsured dirt bike upon or across a highway. In my view, that unproven allegation does not weigh on the issue before the court. Based upon the pleadings and the evidence which has been agreed upon, the “incident” which has given rise to the Plaintiff’s cause of action against the Defendant can only be constituted of the few seconds on either side of the collision between the Defendant’s truck and the Plaintiff’s dirt bike. At the time of that incident, the Plaintiff was not operating an uninsured motor vehicle on a highway.

[25] I find support in my conclusion in the decision of my brother Gordon J., in Faltas v. Marcerello, 2020 ONSC 1450, where the court dismissed the defendant’s motion for summary judgment, concluding that the “time of the incident” was the relevant point in time when the collision occurred. The plaintiff was injured while sitting in an uninsured but inoperable vehicle parked on the shoulder of the highway when it was rear-ended by the defendant’s vehicle. The court reasoned that, “Common sense would suggest that if a vehicle engine cannot function, the vehicle is disabled and thus not capable of being operated […] the plaintiffs’ vehicle was not being operated by Mr. Faltas”: see para. 46.

[26] I fully acknowledge that the Legislature, through s. 267.6(1) of the IA, clearly intended that a motorist driving on a public highway without adequate insurance on his vehicle should be prohibited from advancing claims for injuries he suffers while on that highway. That is a discernible public policy goal in the legislative scheme. I am not prepared, however, to stretch the meaning of the words employed in that restricting legislation beyond their plain and ordinary meaning; even if this means allowing a person operating an uninsured dirt-bike off the highway in contravention of the ORVA to escape the repercussions that would befall him if he was operating his dirt-bike on a highway.

[27] Following argument of the case at Bar, the Court of Appeal released its decision in Beaudin v. Travelers Insurance Company of Canada, 2022 ONCA 806 (“Beaudin”). This decision reaffirmed the earlier pronouncement by the court in Matheson to the effect that the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), the ORVA, the parts of the IA dealing with motor vehicle insurance, and the CAIA are all components of one comprehensive scheme. In doing so, it affirmed the lower decision of the Divisional Court in 2021 ONSC 1389 and went on to state as follows at para. 54 and 55:

Accordingly, any interpretation of the ORVA must keep in mind that it is just one piece of a comprehensive scheme of automobile insurance and that it must be read harmoniously with other legislation that makes up the scheme. The goal of the statutory automobile insurance scheme is to protect victims of automobile accidents by promoting universal coverage […]

While it is true that Matheson was decided in the context of driving on a highway, the factual context of Matheson does not detract from the fact that if drivers without insurance are in an accident, they are faced with a serious risk of not being able to obtain damages and benefits. It makes sense to interpret the ORVA consistently with the entire scheme of automobile insurance in Ontario, which promotes universal insurance coverage with only a few exceptions. (Emphasis added).

[28] I would, however, distinguish Beaudin. While it does deal with the ORVA, the decision turned on whether the plaintiff’s dirt bike in that case was exempt from the insurance requirements of the legislation and whether the ORVA exemption was restricted to closed course competitions that are sponsored by a motorcycle association. The ONCA noted at para. 20 of its decision that the CAIA did not directly apply in the circumstances of the case. The ONCA stopped well short of pronouncing that the operator of an uninsured motor vehicle will always be deprived of her rights to advance a claim for damages or benefits. Instead, the court pointed only to the “serious risk” such a person runs of facing that outcome.

[29] In my view, a court should be very reluctant to champion public policy goals, however laudable, or to extend the reach of a legislative scheme, at the cost of ignoring or distorting plain statutory language or affording that language expansive meaning that it cannot bear. Indeed, a similar sentiment, tinged with frustration, was expressed by the Court of Appeal twenty years ago in the Copley decision at paras. 35 and 36:

The legislature, through s. 224(1), has made it clear that the word “automobile” in s. 267.1 has a broader meaning than its ordinary everyday meaning. Unfortunately, the means used by the legislature to describe that broader meaning create interpretative difficulties. Like my colleague Catzman J.A. in Morton v. Rabito […] I confess to uncertainty as to just how far the legislature intended to extend the policy reflected in s. 267(1). That uncertainty flows directly from the difficulty in defining the word “automobile”.

Given my difficulty in finding the meaning of the word “automobile” as it is used in s. 267.1(1) of the Insurance Act, I cannot say with any confidence that the result I have arrived at furthers the legislative intention underlying that section.

[30] Like the court in Copley, I find myself constrained from advancing the legislative intention in s.267(6)1 of the IA to the case at bar by the limiting words employed in s.2(1) of the CAIA.

Disposition

[31] For the reasons set out above, I conclude that the answer to the question of law raised by the pleadings and posed by the parties must be as follows: the Plaintiff is not barred by s. 267.6(1) of the Insurance Act from bringing a claim for his damages as a result of the incident of August 13, 2016.

[32] The parties are encouraged to come to an agreement on the issue of costs. In the event that they are unable to do so, they may take out an appointment before me to address that and any other outstanding issues through the trial coordinator at Barrie.

McCarthy J.

Released: December 7, 2022