December 12, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Adjudicator David Evans
Date of Decision: October 5, 2010
The appeal of the Arbitrator’s order dated September 30, 2014, is allowed. Paragraph 1 of the Arbitrator’s order is revoked, and the following substituted:
On July 8, 2010, Mr. Beattie was not injured while operating an “automobile” within the meaning of subsection 2(1) of The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996.
REASONS FOR DECISION
On July 8, 2010, Mr. Joseph Beattie was operating a “Genie S65 Boom Lift,” a four-wheeled mobile crane propelled by its own motor. It was on private property in a parking lot next to a building at ground level. That level collapsed into the level below, and Mr. Beattie was injured. He applied for statutory accident benefits from Unifund on the basis that he had been injured in an automobile accident.
Unifund denied benefits on the basis that the Genie was not an “automobile” as defined in the SABS. It appeals the order of Arbitrator H. Michael Kelly that the Genie was an off-road vehicle requiring automobile insurance and so was an “automobile” under the enlarged definition of “automobile” in the Insurance Act.
Statutory accident benefits are only payable if an insured suffered an impairment in an “accident,” defined in s. 2(1) of the SABS as “an incident in which the use or operation of an automobile directly causes an impairment...” The Arbitrator stated that the issue of causation was not before him, but only the issue of whether the Genie was an “automobile.” As will be seen, that issue ultimately turns on whether an off-road vehicle has to have a seat.
Regarding the Genie, the Arbitrator stated: “The purpose of the Genie was to elevate Mr. Beattie to enable him to perform a maintenance function (painting or preparation for painting) with respect to the building.” The Arbitrator noted that the parties agreed the Genie did not have a seat designed to be straddled by the operator. In fact, based on the illustrations of the operator’s platform in the Owners’ Manual, he found: “It appears that the platform does not have a seat and that the operator remains standing during the performance of the Genie.” On appeal, there was no dispute that the Genie lacked a seat, and indeed the position of Mr. Beattie on appeal is that the entire case turns on whether an off-road vehicle has to have a seat to be considered an “automobile.”
The Arbitrator found that in performing its normal function, “the Genie will be driven to a position close to the building wall; the Genie will elevate its operator to the desired height on the side of the building; the operator will address his duties at that point while the Genie is stationary; and the operator will then operate the Genie to move to the next point on the building’s wall that requires attention. During its normal operation, the Genie will be stationary at times and moving at times.”
The Arbitrator applied the three-part test to determine whether the Genie was an automobile. He found that, as the Genie was neither an “automobile” in ordinary parlance nor in an insurance policy, the issue was whether it fell within any enlarged definition of “automobile” in any relevant statute.
The relevant enlarged definition of “automobile” is in Part VI of the Insurance Act, in particular s. 224(1)(a): “A motor vehicle required by any Act to be insured under a motor vehicle liability policy.” Thus, if the Genie had to be insured under a motor vehicle liability policy at the time and place of the incident, it was an automobile, and statutory accident benefits were claimable. The Arbitrator found that although the Genie was a motor vehicle under the Highway Traffic Act, R.S.O. 1990, c. H.8, it was not being operated on a highway, so it did not require insurance under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25. Accordingly, under those Acts, the Genie did not fit within the relevant enlarged definition of “automobile.”
The Arbitrator then considered the Off-Road Vehicles Act, R.S.O. 1990, c. O.4 (“ORVA”), which under s. 2(1) may apply where an off-road vehicle is not being operated on a highway. As noted, the Arbitrator found that the parking lot was not a highway. The Genie was also not being driven on land occupied by the owner of the vehicle, so if it was an off-road vehicle, then s. 15 required it to be “insured under a motor vehicle liability policy in accordance with the Insurance Act.” However, vehicles like the Genie, having more than three wheels and propelled or driven otherwise than by muscular power or wind, only meet the definition of “off-road vehicle” in s.1 if they are of a prescribed class. The prescribed classes are set out in s. 3 of Reg. 863, R.R.O. 1990, set out further below. The Arbitrator found that despite its lack of a seat the Genie met the definition in para. 1.2 of s. 3: “Vehicles designed for utility applications or uses on all terrains that have four or more wheels and a seat that is not designed to be straddled by the driver.”
Accordingly, as an off-road vehicle being operated on land not occupied by its owner, the Genie was found by the Arbitrator to require insurance under a motor vehicle liability policy and thus met the enlarged definition of “automobile” under s. 224(1) of the Insurance Act.
While Unifund raised a number of issues on appeal, including causation, despite the fact that the Arbitrator stated causation was not an issue before him, Arbitrator Evans agreed with Mr. Beattie’s submission: “This appeal turns entirely on Arbitrator H. Michael Kelly’s interpretation of section 3(1.2) [of] Regulation 863, made under the Off-Road Vehicles Act. Specifically, it turns on the question of whether that section requires a motor vehicle to have a seat in order to be prescribed as an ‘off-road vehicle.’”
Unifund argued that the vehicles covered by Regulation 863 were totally, or at least primarily, sport and recreational vehicles, but no evidence was presented to support that assertion. If it were the intention of the Legislature to restrict the application of Regulation 863 to vehicles used solely for sport or recreational uses, the Legislature would have specifically stated that. Why would the models identified in subsections 3(2), (3), and (4) above have been individually described if they already fit squarely within the definitions in 3(1), (1.1), or (1.2) above?
The definition in subsection 3(1.2) above does not suggest a recreational purpose. It says “designed for utility applications or uses on all terrains that have four or more wheels and a seat that is not designed to be straddled by the driver”. Many sport and recreational vehicles are three-wheeled, and have a seat intended to be straddled by the driver. Arbitrator Evans interprets that clause as an exclusion if the vehicle has a seat that is designed to be straddled. Neither party addressed the significance, if any, if the Genie had no seat. As can be seen from the above, the Genie’s lack of a seat played a significant role on appeal.
Arbitrator Evans found that a plain grammatical review of s. 3(1.2) suggests that a seat is a necessary part of the definition. The requirements under s. 3(1.2) speak to the design, number of wheels, and type of seat. The seat is not optional, and as will be seen, treating the provision as an exclusion contradicts the other provisions in s. 3.
The Arbitrator also queried why certain vehicles were listed if they were already included in the broader definitions, and noted that many sport and recreational vehicles are three-wheeled with straddle seats. However, many such vehicles also have four wheels and a straddle seat.
The regulations under the Off-Road Vehicles Act have been amended from time to time, as recently as this year. Despite amending the regulatory framework, the legislature has left intact the classification of the Honda ATV model TRX 200 as an off-road vehicle. In 2003, the legislature amended s. 3 of Reg. 863 by adding paragraphs 1.1 and 1.2: O. Reg. 317/03. Rather than referring to specific model numbers, these paragraphs bring whole categories of ATVs within the definition of off-road vehicles. This must be seen as a regulatory choice. Since four-wheeled vehicles with straddle seats like the Honda ATV model TRX 200 are not excluded but are specifically included as prescribed vehicles in para. 1.1 and para. 3, as seen in Matheson, then para. 1.2 cannot operate as an exclusion for such vehicles, as suggested by the Arbitrator. Therefore, to fit within para. 1.2, the vehicle must have a seat.
Mr. Beattie submits that the Arbitrator’s interpretation of s. 3(1.2) as an exclusion is reasonable and not to be interfered with. Mr. Beattie submits that if a seat is a pre-requisite under s. 3(1.2), then if an individual removes the seats from the vehicle it would no longer need insurance, and manufacturers would start to design and market off-road vehicles without seats in order to avoid insurance. Arbitrator Evans found this submission unreasonably hypothetical. Arbitrator Evans found that an essential part of the definition in para. 1.2 is the type of seat. Since the Genie did not have a seat, it does not fit within para. 1.2.
Therefore, the Genie was not a prescribed vehicle under Reg. 863, so it was not required to have insurance and was consequently not an automobile within the enlarged meaning of the Insurance Act. Mr. Beattie was thus not involved in an “accident” under the SABS. The appeal is accordingly allowed, and the Arbitrator’s decision is revoked.