Airport Passenger Transport Cart Not Considered Automobile Under the Schedule

February 12, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Rubin-Simonov and TD Home – Is an airport passenger transportation cart an automobile; can matter proceed or should application be dismissed? Cart is not an motor vehicle pursuant to Schedule; no SABs benefits

Rubin-Simonov and TD Home

Decision Date: 2016-09-26
Heard Before: Adjudicator Paulina Gueller

Preliminary Hearing

Mrs. Larisa Rubin Simonov was hurt in a car accident on September 12, 2012 when she was riding as a passenger in a cart in the terminal at Pearson International Airport. She sought accident benefits from TD, however when the parties were unable to resolve their disputes through mediation Mrs. Rubin Simonov applied for arbitration at the FSCO.

The issues in this Preliminary Issue Hearing are:

1. Was the cart being used by Mrs. Rubin Simonov on September 12, 2012 within an airport terminal building a motor vehicle within the meaning of the Schedule?
2. Should this Application for Arbitration be dismissed?
3. Is TD entitled to its expenses of this proceeding?

Result:

1. The cart used on September 12, 2012 within the airport terminal building is not a motor vehicle within the meaning of the Schedule.
2. Mrs. Rubin Simonov is precluded from proceeding to Arbitration. This Application for Arbitration is dismissed.
3. TD is entitled to its expenses of this Preliminary Issue Hearing and Arbitration proceedings in the amount of $1,500.00, inclusive of all fees, disbursements and HST.

EVIDENCE AND ANALYSIS:

TD submitted that Mrs. Rubin Simonov's injuries as a result of falling off the cart are not eligible for accident benefits because the cart was not an automobile/vehicle for the purposes of accident benefits. It asserts that there is no legislation or case law that supports that a cart being used in an airport terminal qualifies as a motor vehicle within the meaning of the accident benefits legislation, and that Mrs. Rubin Simonov has no entitlement under the Schedule and cannot proceed to Arbitration before FSCO.  TD submitted various legislation relevant to the case, including:

• The Insurance Act
• The Compulsory Automobile Insurance Act
• The Highway Traffic Act
• The Off Road Vehicles Act

TD also provided the Arbitrator with case law from the Ontario Court of Appeal that dealt with the issue of what constitutes a motor vehicle for the purpose of insurance in Adams v. Pineland Amusements Ltd., 2007 ONCA 844 (CanLII), in which a go-kart operated on a private track was not considered an "automobile" within the meaning of the standard Ontario Automobile Insurance Contract, because it can only be considered an automobile if it required insurance.

The Court of Appeal approved a three-part test to determine if something is considered a vehicle:

1. Is the vehicle an automobile in the ordinary parlance? If not, then;
2. Is the vehicle defined as an automobile in the wording of the insurance policy? If not, then;
3. Does the vehicle fall within any enlarged definition of "automobile" in any relevant statute?

On the basis of the test TD submits that the cart is not an vehicle. The Applicant has the onus to prove her claim. However, she did not submit any materials supporting that the use or operation of a cart within an airport terminal meets the definition of motor vehicle within the meaning of the Schedule, or that the cart in this case would be required to have automobile insurance according to the Insurance Act. Mrs. Rubin Simonov provided no evidence in this matter.

The Arbitrator noted that upon review of all of the evidence presented the Arbitrator determined that that the cart used within the airport terminal building is not a motor vehicle within the meaning of the Schedule. On that basis Mrs. Rubin Simonov is precluded from proceeding to Arbitration and this proceeding is dismissed.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.