Beaudin v. Travelers Insurance Company of Canada (2021 ONSC 1389)

The insurer appealed the Tribunal’s decision that the dirt bike involved in the accident was an automobile for the purposes of the SABS. The Tribunal had concluded that the dirt bike was required to be insured under the Off-Road Vehicles Act and was not exempt from insurance through the regulation that allowed off-road vehicles to be uninsured when “driven or exhibited at a closed course competition or rally sponsored by a motorcycle association.” The Court dismissed the appeal and confirmed that the dirt bike was considered an automobile. The Court agreed with the Tribunal’s approach to interpreting the ORVA as being for the protection of innocent victims of automobile accidents, and the narrow reading of the exemption to the ORVA.

M.B. v. Travellers Insurance Company (17-006174)

The claimant was injured while driving an off-road vehicle (a dirt bike) at a closed course competition. The insurer denied that an “accident” had occurred because the off-road vehicle was not an “automobile.” Adjudicator Kowal agreed with the insurer and held that because the dirt bike was exempt from the requirement to be insured under section 2 of the Off-Road Vehicles Act, it was not considered an “automobile.”

Taylor v. Aviva Canada Inc. (2018 ONSC 4472)

The claimant had a serious accident while on an ATV. The Tribunal initially found that the ATV was not an automobile at the time of the accident. On reconsideration, the Executive Chair remitted the matter to a new adjudicator for a new hearing. The claimant sought judicial review of the Executive Chair’s order, arguing that she should have made a determination on whether the ATV was an automobile. The insurer sought judicial review of the Executive Chair’s order, arguing that the Court should reinstate the Tribunal’s original order. The Court dismissed both appeals. First, the court held that the decision to remit the matter for a new hearing rather than making a determination of the issue on reconsideration was reasonable. The Executive Chair explained that an in-person hearing might be necessary to make the essential findings of fact. It was reasonable for the Executive Chair to decline to decide the matter on the written record. The Court also noted that whether the ATV was an “automobile” was not a question of law. It was an issue of mixed fact and law, for which the Court did not have jurisdiction to make a decision. In terms of the insurer’s appeal, the Court held that the LAT Rules suggest that reconsideration by the Executive Chair is made on a correctness standard, and that the Executive Chair does not have to show deference to the hearing adjudicator where one of the conditions in Rule 18 applies. The Executive Chair identified significant errors on the part of the adjudicator, and she complied with Rule 18. There was no basis for the Court to intervene.

J.T. v. Aviva Canada Inc. (16-003674)

The claimant sought reconsideration of the underlying Tribunal decision, in which the adjudicator concluded that the ATV the claimant was occupying at the time of the accident was not an “automobile,” and that the claimant was therefore not entitled to accident benefits. Executive Chair Lamoureux allowed the reconsideration and remitted the matter to a new adjudicator for a new hearing. She reasoned that the initial adjudicator failed to consider various documentary evidence and failed to analyze that evidence in the context of the OAP1 and the Sale of Goods Act. Executive Chair Lamoureux did uphold the adjudicator’s decision that estoppel did not apply (i.e. that the insurer was not required to continue paying accident benefits simply because it had started paying accident benefits upon receipt of the OCF-1), and re-iterated that the LAT did not have jurisdiction to exercise equitable relief. The LAT’s purpose was to adjudicate the claimant’s entitlement to benefits based on the terms of the SABS.

B.M. v. Aviva Insurance Canada (17-000907)

The claimant was riding on a motorcycle at a privately owned and operated, training and racing facility. The motorcycle owner’s manual indicated that the vehicle was designed for closed course competitions only. The motorcycle was not registered with an insurance policy nor was it plated with the Ministry of Ontario. On the day of the accident, the claimant paid a drop-in fee and signed a waiver to ride the bike. During the course of the ride, the claimant made an unsuccessful jump off of a hill. The claimant fell off the bike and as he was recovering, another rider came over the same jump and struck the claimant. Adjudicator Meray Daoud reviewed the Ontario Court of Appeal decision of Adams v Pineland Amusements Ltd, 2007 ONCA 844, and noted the vehicle did not fall within an “automobile in the ordinary parlance” or listed in a policy. Adjudicator Daoud then reviewed section 224(1) of the Insurance Act and noted the vehicle was not prescribed by regulation and reasoned it had to be determined if the vehicle was required to have a motor vehicle liability policy. When reviewing the legislation identifying vehicles requiring insurance policies Adjudicator Daoud concluded the vehicle fell within the exempted category of off-road vehicles driven or exhibited at a closed course competition. Accordingly, the motorcycle was not an automobile for the purposes of accident benefits, and therefore the claims were dismissed.

J.T. v. Aviva Canada Inc. (16-003674)

This case addresses whether an incident occurring on an ATV qualifies as an “accident” under the SABS. To qualify, the ATV must have been considered an “automobile” at the time of the incident, which is not defined in the SABS. Arbitrator Hines considered the common law definition as set out by the Court of Appeal and concluded that in order for the ATV to qualify as an “automobile,” it must have been driven on land occupied by individuals other than the owners of the ATV (based on the requirements of the Off-Road Vehicles Act). Adjudicator Hines then had to consider who the owners of the ATV were at the time of the incident, due to a purported sale from one family to another family shortly before the incident. She concluded that the owner of the ATV was the same person that occupied the land on which the incident occurred. Arbitrator Hines therefore concluded that the ATV was not an “automobile” and the incident was not an “accident”. She also ruled that the LAT did not have jurisdiction to award equitable relief, and that the insurer could not be estopped from paying accident benefits after it stopped payment based on the “accident” not occurring.

S.C.L. v. State Farm Mutual Automobile Insurance Company (16-001683)

The claimant was struck by a golf cart while on the driveway of a private golf course. The insurer denied that an “accident” had occurred because the golf cart did not qualify as an “automobile”. Adjudicator Sewrattan agreed with the insurer and concluded that the golf cart was not an “automobile” because it was not a motor vehicle required to be insured under the Highway Traffic Act or Compulsory Automobile Insurance Act. The adjudicator noted that the driveway on which the incident had occurred was not a common and public driveway; had it been a common and public driveway, the result may have been different.