November 09, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Jeffrey Musson
Dater of Decision: October 9, 2015
Mr. Austin Benson was hurt in a car accident on June 23, 2013 and sought accident benefits from Belair. When the parties were unable to resolve their disputes through mediation and Mr. Benson applied for arbitration at the FSCP.
The issues in this Preliminary Issue Hearing are:
Did Mr. Benson's incident using an All-Terrain Vehicle (“ATV”) in the province of British Columbia, meet the definition of an automobile “accident” under Section 3(1) of the SABS, and thus, entitle him to accident benefit coverage under the SABS?
Mr. Benson’s incident, which occurred while utilizing an ATV in the province of British Columbia, does not meet the definition of an automobile “accident”, under Section 3(1) of the SABS, and therefore, does not entitle Mr. Benson to accident benefit coverage under the SABS.
Mr. Benson, 20, was riding on the rear seat of the ATV as a passenger. Mr. Benson was thrown off the back of the ATV and sustained a head injury which rendered him unconscious. He was working in British Columbia, but his official residence is in the Province of Ontario. Mr. Benson was insured for automobile coverage on a policy issued under the laws of the Province of Ontario through Belair. The ATV driver Mr. Askin resides in the Province of British Columbia, and the driver is the owner of the ATV involved in his accident.
The Arbitrator reviewed the law and the evidence and determined the following are legal issues that are to be addressed.
First, does an ATV accident meet the definition of an accident under the SABS, and
Second, would a person from Ontario who was involved in an ATV accident in British Columbia be able to claim accident benefits under their Ontario Automobile Insurance Policy (“OAIP”)?
If not, would the ATV come within an enlarged definition of “automobile” in any other relevant statute?
Accident benefits, under SABS, are available only if Mr. Benson's injuries arose from a ‘motor vehicle accident.’
The parties are in agreement that an ATV does not qualify as an “automobile” under the first two points of the ordinary parlance test. Specifically, under the first point, an ATV is not designed for vehicular traffic on highways or municipal roadways, and it is not specifically insured under the wording of the policy.
Mr. Benson submits that although the incident occurred in British Columbia, he can claim accident benefits under his OAIP, because “relevant” Ontario laws require an ATV to be insured under a motor vehicle policy, thus satisfying the third point of the ordinary parlance test.
Belair submits that because an ATV is not an “automobile” within the ordinary parlance, and this accident occurred out-of-province, it must be determined which jurisdiction’s laws govern the incident and thus provide the “relevant” statutes under the third point. Belair concludes that under law of the place of occurrence, British Columbia law governs this incident. Under British Columbia law, the ATV was not required to be insured as a motor vehicle, and thus Mr. Benson fails on the third point of the ordinary parlance test. Therefore this incident is not considered an automobile accident as defined under the SABS.
The key questions to be answered is, “Which jurisdiction should apply?” If Ontario law applied to this incident, Mr. Askin was driving the ATV off of his property, and he would have been required to have insured the ATV, however Mr. Askin was not renting his vehicle to the public which is the triggering event in British Columbia. Therefore, Mr. Askin had no requirement in the province of British Columbia to insure the ATV under an automobile policy.
With this case, on the balance of evidence, the Arbitrator was of the opinion that the ATV involved in this accident is not considered an automobile in British Columbia under any relevant act, and not required to be insured.
Given that this incident occurred in British Columbia and using the Supreme Court of Canada decision as guidance; the laws of British Columbia and specifically the laws of British Columbia that relate to insurance requirements of an ATV at the time of the accident, should apply in this case. In this case the laws of BC did not require insurance.
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