October 21, 2014

SABS Update – A car is a car, and was always a car, but now the theory goes, that a crane’s a car.

Joseph Beattie v Unifund Assurance Company, FSCO Decision A13-005289, September 30, 2014, Arbitrator H. Michael Kelly, Q.C.

Accident July 8, 2010. Mr. Kelly was injured while operating a “Genie Boom Crane” in a private parking lot of a commercial building. The Genie is a four wheeled mobile crane propelled by its own motor. The Genie was being used to elevate Mr. Beattie for either painting or preparing for painting. Mr. Beattie was injured when the ground level of the parking lot collapsed into the level below. Mr. Beattie applied for statutory accident benefits from Unifund, the insurer of his personal vehicle. Unifund denied entitlement of benefits.

ANALYSIS

The Statutory Accident Benefit Schedule at section 2(1) defines “accident” to mean an incident in which the use or operation of an automobile directly causes an impairment. To be entitled to benefits Mr. Beattie had to prove that at the time and place of the accident the Genie was an automobile. One would think this would be an easy exercise. Apparently it is not.

To Ontario Court of Appeal has adopted a three part test to determine if something is an automobile.

1. Is the vehicle an “automobile” in the ordinary parlance?
2. If not, is the vehicle defined as an “automobile” in the wording of the insurance policy?
3. If not, does the vehicle fall within any enlarged definition of “automobile” in any relevant statute?

In this case the first two tests did not apply. Accordingly, the hunt was on to see if the Genie fell into an enlarged definition in any relevant statue.

The first stop on this hunt was the Insurance Act. Part VI of the Insurance Act contains provisions related to statutory accident benefits and defines automobile to be “a motor vehicle required by any Act to be insured”. Although the Genie was found to be a motor vehicle it ultimately did not fit within this definition as it was not required to be insured when it was not being operated on a highway. As the Genie was being used in a private parking lot it did not have to be insured.

The next stop on the hunt was the Off-Road Vehicles Act (ORVA). The ORVA provides that no person shall drive an off-road vehicle unless it is insured, except where the vehicle is driven on land occupied by the owner of the vehicle. A separate Regulation to the ORVA defines “off-road vehicle” as “vehicles designed for utility application on all terrains that have four or more wheels and a seat that is not designed to be straddled by the driver”. Even through the rest of the regulation clearly applied to sport and recreation vehicles, such as dune buggies and 4×4’s, the Arbitrator was satisfied that the Genie was an off-road vehicle. Since the Genie was not owned by the owner of the parking lot it required insurance as per the ORVA.

 

IMPLICATIONS

When an individual is injured by while using an atypical vehicle, it is worth the analysis to consider if that vehicle is an “automobile”. If so the injured person may be entitled to statutory accident benefits.

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