August 26, 2013

Accident Benefits Update – Off-Roading with the SABS

ACCIDENT BENEFITS UPDATE

For the week of August 26 to August 30, 2013

Bouchard v. Motors Insurance Corporation and Financial Services Commission of Ontario, 2013 ONSC 2205; Molloy, Sachs and Harvison Young JJ.A

On April 12, 2013, the Ontario Divisional Court upheld a decision of a delegate of the Director of Arbitrations of the Financial Services Commission of Ontario (“FSCO”) to reverse a decision of a FSCO Arbitrator. The court confirmed that a driver of an off-road vehicle is not entitled to the Statutory Accident Benefits Schedule (“SABS”) unless the vehicle is driven off the owner’s property at the time of any incident.

BACKGROUND

On January 13, 2008, Ms. Bouchard was riding a gas powered miniature motorcycle (“pocket bike”) on property leased by the bike’s owner when she collided with another pocket bike. Ms. Bouchard was injured and applied for coverage under the SABS. Her insurer denied the claim on the basis that an “accident”, as per the SABS, had not occurred because a pocket bike is not an “automobile” as defined by the Insurance Act, R.S.O. 1990, c.I.8, as amended (“Insurance Act”). The parties failed to resolve the dispute at mediation and, therefore, applied for arbitration.

ARBITRATOR’S DECISION

On January 7, 2011, an FSCO arbitrator determined that Ms. Bouchard was entitled to the SABS regime despite the collision occurring on property occupied by the pocket bikes’ owner.

The Arbitrator established that the pocket bike was required to be insured under a motor vehicle liability policy unless driven on land occupied by the pocket bike’s owner, as per the Off Road Vehicles Act, R.S.O., 1990, C. O.4 (“ORVA”). Next, the Arbitrator interpreted the OVRA to require that off-road vehicles, such as the pocket bike, were to be insured unless used solely on land occupied by the owner. In this case, the pocket bikes’ owner had previously driven the bikes on property not occupied by him. Therefore, the pocket bikes were required to be insured and the bikes were now an “automobile” by virtue of ss. 224(1)(a) of the Insurance Act.

This decision significantly expanded the applicability of the SABS by including any off-road vehicle that had ever been driven on property not occupied by the owner.

REVERSAL OF THE ARBITRATOR’S DECISION

On June 20, 2012, the Arbitrator’s decision was reversed on an appeal by the insurer. The Delegate of the Director of Arbitrations concluded that the ORVA did not require the pocket bikes to be insured because they were being used on land occupied by the owner at the time of the collision.

JUDICIAL REVIEW APPLICATION

The Court agreed with the Delegate’s analysis and made clear that the context of the pocket bikes’ use at the moment of the collision is determinative, not past use. The pocket bikes were being operated on property occupied by the owner and, thus, were not required to be insured under the OVRA.

IMPLICATIONS

In the case of off-road vehicles, at least those governed by the ORVA, the location of a collision is critical to the definition of “accident” under the SABS due to the requirement for insurance only if driven on property other than the owner’s.  A driver or passenger of an off-road vehicle is not entitled to accident benefits unless the vehicle is driven on property not occupied by the vehicle’s owner at the time of an incident.

If driven off-property, an off-road vehicle transforms into an “automobile” under the Insurance Act permitting access to the SABS if a collision occurs. The result of this transformation is that a collision involving an off-road vehicle – now an “automobile” – qualifies as an “accident” as defined within the SABS and, thereby, entitles the driver or passenger to the SABS regime.

Accessing This Decision

If you would like to read the decision for yourself, it can be found at: http://canlii.ca/t/fx8jq

If you have questions or comments about this post, contact info@md-lawyers.ca