July 09, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator Ellen Fry
Date of Decision Date: October 30, 2015
REASONS FOR DECISION
Ms. Eleanor Carr was injured on June 18, 2011, when she was 5 and fell out of a fire truck hitting her head on the driveway. She sought accident benefits from TD. Mediation failed and Ms. Carr applied for arbitration at the FSCO.
The issue in this Hearing is:
Is the June 18, 2011 incident an “accident” within the meaning of the Schedule?
The June 18, 2011 incident is not an “accident” within the meaning the Schedule.
The incident occurred while Ms. Carr was attending a birthday party for a classmate at her classmate’s home. Her classmate’s father and grandfather were volunteer firefighters for the Town of Niagara-on-the-Lake. After obtaining the necessary permission, they brought a fire truck owned by the Town to the birthday party. The children attending were invited to tour the fire truck. The truck was stationary, and the evidence submitted by the parties indicates that the engine was off. The transcripts of examinations for discovery submitted by the parties indicate that Eleanor apparently mis-stepped and fell going down the steps getting off the truck.
The Arbitrator reviewed the evidence and the law. Section 3(1) of the Schedule defines “accident” 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.
The case law establishes that the incident must satisfy both parts of a two-part test in order to fall within this definition:
1. Did the incident result from the ordinary and well-known activities to which the fire truck was put (the purpose test); and
2. Is there a direct causal relationship between Eleanor Carr’s injuries and the use or operation of the fire truck (the causation test).
Miss Carr submits that the purpose test is met, for two reasons. First, that getting out of a fire truck is the normal use or operation of a vehicle. Second, that the fire truck was normally used as a display for members of the public for safety and education purposes and therefore the activity at the birthday party that day constituted normal use or operation in the circumstances.
TD submits that the purpose test is not met. In the Insurer’s view the fire truck was not being used or operated as an “automobile” at the time of the incident. It was being used for amusement and entertainment purposes only, whereas the normal use and operation of fire trucks is to transport firefighters to fires. TD also submits that because the engine was off and the truck was being used for non-motoring purposes, it was not being used or operated as an “automobile” at the time of the incident. The Insurer submits that “SABS is automobile legislation [sic]” and therefore that “Someone who uses a vehicle for non-motoring purposes cannot expect to receive benefits from a motor vehicle insurance policy”.
Following his review the Arbitrator concluded that the fact that the truck was stationary, with its engine off, is not in itself determinative. Ms. Carr cited several cases in which an incident was found to be covered by Section 3(1) even though the vehicle in question was parked at the time of the incident. However, in those cases the vehicle was being used as a motor vehicle, and was parked as part of that use. The distinguishing factor is that in the current case the vehicle was not being used as a motor vehicle, and was parked as part of its use as a display.
Accordingly, this incident does not meet the purpose test. Given this conclusion, it is not necessary to consider whether the incident meets the causation test.