January 03, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Michael Kelly
Date of Decision: September 30, 2014
DECISION ON A PRELIMINARY ISSUE
Joseph Beattie was injured on July 8, 2010, while operating a "Genie Boom Crane" in the parking lot of a building occupied by commercial tenants. He was performing maintenance on the building when the parking structure the Genie was on collapsed. He applied for SABs from Unifund, the insurer of his personal vehicle, payable under the Schedule. Unifund denied his entitlement to these benefits. The parties were unable to resolve their disputes through mediation, and Mr. Beattie applied for arbitration at the Financial Services Commission of Ontario.
Was the Genie Boom Lift, at the time and place when and where Mr. Beattie was injured while operating the Genie, an "automobile" within the meaning of that term in s. 2(1) of the Schedule?
The Genie Boom Lift was an "automobile" within the meaning of that term in s.2 (1) of the Schedule when Mr. Beattie was injured while operating it.
In order to be entitled to statutory accident benefits, Mr. Beattie must establish that he was involved in an "accident" as defined in s.2(1) of the Schedule, and he must prove that at the time and place of the incident the Genie was an "automobile". Mr. Beattie asserts that engaging the three-step test set out by the Ontario Court of Appeal, he can establish that at the time and place when and where the incident took place, the Genie was (a) a motor vehicle or an off-road vehicle and (b) was legally required to be insured under a motor vehicle liability policy (either pursuant to the Compulsory Automobile Insurance Act or pursuant to the Off- Road Vehicles Act).
Unifund took the position that the Genie was not an "automobile" at the time and place when the structure collapsed, and that, the incident does not fall within the definition of "accident" set out in s.2(1) of the Schedule. Unifund also asserts that pursuant to the Highway Traffic Act the Genie is not a motor vehicle, the parking lot is not a highway, that the Genie did not legally require automobile liability insurance under the Compulsory Automobile Insurance Act, nor is it an off-road vehicle pursuant to the Off-Road Vehicles Act. Unifund maintains that even if the Genie were an off-road vehicle, it did not require motor vehicle liability insurance at the time and place of the accident. Unifund assert the Genie was stationary when the accident occurred and consequently it was an elevated platform for work.
The Arbitrator reviewed the definition of ‘accident’ in the Schedule. He then reviewed the meaning of “automobile” in the insurance policy. To establish entitlement to SABS benefits, Mr. Beattie must prove that at the time and place of the incident the Genie was an "automobile".
The Ontario Court of Appeal confirmed the three-part test as follows:
Is the vehicle an "automobile" in ordinary parlance?
If not, is the vehicle defined as an "automobile" in the wording of the insurance policy?
If not, does the vehicle fall within any enlarged definition of "automobile" in any relevant statute?
The Arbitrator found that the Genie does fail the first two tests. For the third test he examined an enlarged definition of "Automobile" in the statutes. He then determined whether as a motor vehicle it was required by any Act to be insured on a highway and on the parking lot. He determined that the Genie was a motor vehicle, that it had been operated on the public road on the day of the accident at times while also operating on the parking lot. The Arbitrator concluded while being operated on a highway, the Genie, being a motor vehicle, legally required motor vehicle liability insurance.
Mr. Beattie argued that it would not make sense that the Genie would require motor vehicle liability insurance while being operated on a highway, and then moments later, when it leaves the highway, it would no longer require that insurance. He argues that the Legislature could not have contemplated, or intended, that such legal obligation would be intermittent, i.e. in force when the Genie was operating on a highway, and then, moments later when the Genie left the highway, was no longer in force. Mr. Beattie argued that the Genie was in fact subject to the Off-Road Vehicles Act and its Regulations.
Unifund asserts that the Genie is not an off-road vehicle as described in the Regulation as the vehicles covered by this Regulation were totally, or at least primarily, sport and recreational vehicles, but no evidence was presented to support that assertion.
The Arbitrator considered that if it were the intention of the Legislature to restrict the application of the Regulation to vehicles used solely for sport or recreational uses, the Legislature would have specifically stated that. He also considered the question of whether it matters that the Genie was stationary at the time of the accident.
Unifund contends that as the Genie was stationary it was being used simply as an elevated platform from which Mr. Beattie could perform his maintenance function, the Genie was neither a motor vehicle, nor an automobile when the parking lot collapsed.
The Arbitrator had no evidence confirming the Genie was stationary. And even if it was, the Genie is propelled by its own motor, and has its own independent steering mechanism and braking system. The Arbitrator concluded that at times the Genie would be stationary, and at times it would move under its own power. The Off-Road Vehicles Act (Ontario) required that the Genie be insured while being driven on the parking lot. While performing its normal function it is being "driven", notwithstanding that, in the process it will be stationary at times. While performing its normal function, off-highway, it is required to be insured under the ORVA. The Arbitrator concluded that the Genie was an "automobile" pursuant to the Insurance Act, and therefore an "automobile" for the purposes of the Schedule.