Balon v. BelairDirect (22-001100)

The claimant was involved in an ATV accident and sought benefits pursuant to the SABS. The preliminary issue to be considered at the hearing was whether the incident the claimant was involved in was considered an accident. The adjudicator found that the claimant was not involved in an accident pursuant to s. 3 of the SABS. The ATV was being used on private property and was subject to the Off -Road Vehicles Act. This legislation states that the claimant is entitled to claim accident benefits if an ATV was required to be insured under section 15 of the ORVA. In Adams v. Pineland Amusements Ltd. (“Adams”), 2007 ONCA 844, the Court of Appeal adopted a three-part test set out in Grummett v. Federation Insurance Co. of Canada, 1999 CanLII 15103 (ONSC) to determine whether a vehicle is an automobile. Under the Grummett test, a vehicle is an “automobile” when (a) it is an “automobile” in common parlance; (b) it is defined as an “automobile” in a policy of insurance; and (c) it falls within any enlarged definition of “automobile” in any relevant statute. The claimant did not meet the Grummett test as jurisprudence established that an ATV is not considered to be an “automobile” in the ordinary sense of the word. The claimant did not provide any evidence that defines the ATV as an automobile in an insurance policy. The Respondent submitted the insurance policy of the ATV’s owner, and the ATV was not covered under this policy. The analysis then turned to the third part of the test. The claimant submitted that the ATV on which she was riding was compelled to carry a motor vehicle liability policy on it as per the Insurance Act, the ORVA and the Compulsory Automobile Insurance Act, R.S.O. 1990, c.C.25, and due to this requirement, the ATV in question was deemed to be an “automobile”. The Respondent argued that an ATV would only require insurance if it was operating on a highway and not on her friend’s private property. The claimant did not provide compelling evidence to show that the incident took place on a roadway. Therefore, the claimant failed on the third part of the Grummett test, as she did not demonstrate the ATV fell within any enlarged definition of “automobile” in any relevant statute. The application was dismissed as the incident was not considered an accident.