Broad Definitions Of "Automobile" and "Accident" For Accident Benefits Claims At The LAT
Nov 14, 2017
Generally, most accident benefit claims start with the premise that there was an “accident” that involved an “automobile”. However, there are the exceptions which can lead to a perusal of a dictionary and a second or even third look at well-worn copy of the SABS. Two recent decisions from the LAT stand out as such: I.C. and Intact, 2017 CanLII 69443 and B.M. and Aviva, 2017 CanLII 69451.
In I.C. and Intact, the preliminary issue revolved around defining the meaning of an accident, pursuant to section 3(1) of the SABS. Here, the applicant had gone car surfing: for those unfamiliar with such activities, and do not have their own copy of the movie Jackass, she stood on the rear bumper of the vehicle and held on to the roof rack and the shoulder of her friend next to her, who mirrored her position. Another friend recorded with his cell phone from the front passenger seat, half hanging out of the window. The driver took a sharp left turn and the applicant fell off and suffered injuries.
Adjudicator Nicole Treksler applied the two part test set out in Amos v Insurance Corporation of British Columbia, to determine whether the applicant was in an accident: (1) purpose test – did the accident result from the ordinary and well-known activities to which automobiles are part; and (2) causation test – was the injury directly caused by the use and/or operation of a vehicle (as modified by section 3(1) of the SABS.
While the Adjudicator agreed that dangerous use of a vehicle does not necessarily exclude the individual from receiving benefits, she distinguished the facts from Whipple v Economical, wherein an injury from doing a handstand on a stripper pole on a party bus was compensable because it related to the advertised purpose of the vehicle: entertainment or party. Here, the applicant’s primary use of the car was found to be transportation, albeit not in the regular manner.
The question became: was it sufficiently abnormal to disentitle her to benefits? The Adjudicator found that the language of section 3(1) creates a presumption of entitlement unless the behavior was so abnormal that it could not have been contemplated by the legislature. The applicant pointed to examples of car surfing in the media, notably Teen Wolf and Back to the Future (i.e. Michael J. Fox showing us all the moves in the ‘80s) as well as references in legislature including the Highway Traffic Act under sections 178(1) and (4) as proof that car surfing did not meet this threshold of abnormal activity. The Adjudicator agreed and equated this behavior with speeding or texting while driving, which are both illegal but would not necessarily disentitle a person to accident benefits.
In B.M. and Aviva, the question was the meaning of the word automobile. The applicant was riding a motorcycle specifically designed, manufactured, and sold for close course competitions at a privately owned and operated training and racing facility. He fell off his motorcycle during an unsuccessful jump. As he was recovering from the fall, another rider came over that same jump and struck him.
Adjudicator Meray Daoud applied the test from Adams v Pineland Amusements to determine whether the motorcycle was an automobile. The only relevant portion was the last question: does the vehicle fall within any enlarged definition of an automobile in any relevant statute? Section 224(1) of the Insurance Act defines an automobile as (a) a motor vehicle required under any act to be insured under a motor vehicle liability policy and (b) a vehicle prescribed by any regulation to be an automobile.
Pursuant to section 224(1)(a), the Adjudicator looked to the Off Road Vehicles Act to determine whether there was a requirement for the motorcycle to be insured because the vehicle had been driven off highways. However, there are several exceptions under the ORVA, including the fifth designated class of vehicles that are exempt from the requirement of being insured which relates to vehicles driven at a closed course competition. “Competition” was defined broadly because the strict interpretation of competition (limited to “race”) would produce an absurd result where the exact same circumstances would be required to be insured if it were a practice run, but not for a race. As such, competition included the present circumstances of the recreational practice run and it was an exception under the ORVA.
The motorcycle was exempt from the requirement of being insured and so did not meet the definition of an automobile. Therefore, the applicant was not involved in an accident as defined in section 3(1) of the SABS.
While the LAT has made clear that it is not bound py precedent, and that its decisions are not binding on other adjudicators, it has to be welcome news that broad acceptance of earlier precedents is the norm. For example, a recent ONCA decision, Dittman v Aviva similarly applied a broad definition of “accident” (and the purpose test) to determine that a coffee cup spill while the car was stationary, after receipt of the coffee from a drive-through, amounted to an accident and was compensable by accident benefits. The Adams Court of Appeal decision, while involving tort coverage, dealt with precisely the same type of claim, and was reasonably followed in B.M. While the LAT seeks to preserve the consumer protection requirement for reasonable expectations regarding coverage as in I.C. and Intact, there is also a clear desire to balance this with a common sense understanding of the SABS as in B.M. and Aviva. In other words, broad definitions will only get you so far at the LAT.
Maia Abbas is an associate at ZTGH and a member of the License Appeal Tribunal practice group. If you have a question about these decisions or a LAT file, please contact Maia.