What is an ‘Accident’?
Part 1 of 2: Automobile
The Statutory Accident Benefits Schedule (‘SABS’) requires accident benefits be paid to persons injured in an accident. 1 The SABS defines the word “accident” to mean an incident in which the use or operation of an automobile directly causes an impairment or damage.2 As you might have guessed, it is not unusual for dispute to arise over whether an incident involved an automobile, or whether an injury was a result of the use or operation of an automobile. This blog post will discuss in plain language what an ‘automobile’ is for the purpose of accident benefits.
“To the uninitiated, it might seem that defining the word “automobile”… should be a relatively simple matter. Those familiar with the byzantine nature of insurance legislation know better.”3 – Doherty, J.A. ONCA
The definition of automobile for the purpose of entitlement to accident benefits is contained in the three sources: your insurance policy, various Ontario legislation,4 and case law interpreting the legislation. From these sources, the Court has found three methods to determine if a vehicle is an automobile for the purpose of accident benefits.5 A vehicle is an ‘automobile’: 1) if the insurance policy says it is; 2) if it is considered an automobile in ordinary discussion; or, 3) if it falls within any enlarged definition of automobile in any relevant Ontario6 statute.
- First, an insurance policy may define the term ‘automobile’. Where a vehicle is included in a policy’s definition, the Court will accept it and apply it consistently7. As such, it is the first place to look to resolve any such dispute.
- Second, the Court has taken a ‘functional’ and ‘purposive’ approach to whether a vehicle is an automobile in ordinary discussion. Essentially, it asks whether the vehicle “was designed for and capable of the transportation of passengers on streets and highways” 8. Most commercial cars, trucks, and SUVs meet this test.
- The third way a vehicle may be considered an automobile is essentially by being required to have car insurance at the time of the incident. 9 This is a complicated and fact-specific analysis. Over the years, Courts have considered many uninsured vehicles including a: racecar10, tomato-wagon11, go-kart12, motor-bike13, farm tractor14, ATV15, golf-cart16, and boom lift17. Depending on the circumstances in which these vehicles were used, some were required to have car insurance, and were thus an automobile for the purpose of accident benefits.
To learn more or to discuss your motor vehicle accident, contact your team at Kotak today!
- Insurance Act, Ontario Regulation 34/10. (Generally, the entitling provision to each benefits requires an “insured person who sustains an impairment as a result of an accident” to receive accident benefits).
- Ibid, (s.3).
- Copley v. Kerr Farms Ltd., 2002 CanLII 44900 (ON CA) (para. 10).
- Insurance Act, R.S.O. 1990, Chapter I.8. (s.224 applies, not s.1) – Regele v. Slusarczyk, 1997 CanLII 3648 (ON CA).; Compulsory Automobile Insurance Act, R.S.O. 1990, Chapter C.25.; and, Off-Road Vehicles Act, R.S.O. 1990, c. O.4.
- Grummett v. Federation of Insurance Co. of Canada, 1999 CanLII 15103 (ON SC)., three-part analysis confirmed in Adams v. Pineland Amusements Ltd., 2007 ONCA 844 (CanLII).
- “[A]ny Act” as set out in subsection 224(1) of the Ontario Insurance Act refers to any Act of the Ontario Legislature, and specifically refers to Ontario law”. – Bray and ING (FSCO A08-002263, December 8, 2010).
- Rougoor v. Co-operators General Insurance Co., 2010 CanLII 100059 (ON CA).
- Grummett v. Federation of Insurance Co. of Canada, 1999 CanLII 15103 (ON SC).
- Supra note 3, see also Beattie and Unifund, (FSCO A13-005289, September 30, 2014). Note: where a vehicle is not insured at the time of accident exclusions will apply to certain accident benefits in s.31 of SABS.
- (Racecar) Supra note 8;
- (Tomato-wagon) Supra note 3.
- (Go-kart) Adams v. Pineland Amusements Ltd., 2007 ONCA 844 (CanLII).
- (Motor-bike) Supra, note 7.
- (Farm tractor) Regele v. Slusarczyk, 1997 CanLII 3648 (ON CA).
- (ATV) Ellen and Belair, (FSCO A12-003878, February 17, 2015).; see also, Bray and ING (FSCO A08-002263, December 8, 2010).
- (Golf-kart) CAA Insurance Company and Turner, (FSCO P99-00036, February 9, 2000).
- (Genie S65 Boom Lift) Beattie and Unifund, (FSCO A13-005289, September 30, 2014).
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Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader’s situation by competent legal counsel who has had an opportunity to review all of the facts.