Under the Statutory Accident Benefits Schedule (the “Schedule”) an accident is defined as:
“an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aide, prosthesis or other medical or dental device”
Whether this definition covers home repairs on a vehicle that result in injuries was the question addressed by the LAT in C.C. vs. Intact Insurance Company, 2019 ONLAT 18-003343/AABS.
The applicants were two brothers who were attempting to replace the fuel pump of a 1998 Monte Carlo in the garage of one of their homes. During the course of this repair, there was an explosion that caused both applicants to suffer life-threatening burns.
The brothers made applications for benefits pursuant to the Schedule through each of their own automobile insurers. One applicant was receiving automobile insurance from Intact, the other from Economical. Both Intact and Economical denied the applicants’ claims, stating that their injuries were not the result of an accident within the meaning of the Schedule.
Vice Chair Susan Mathers used the test applied by the Supreme Court of Canada in Citadel General Assurance Company v. Vytlingam to determine whether the incident could be deemed an accident, and therefore covered under no fault statutory automobile benefits. The test is comprised of two parts. The first part is referred to as the “purpose” test, and the second as the “causation” test.
The purpose test asks the question: Did the accident occur in the course of the ordinary and well-known activities to which automobiles are put?
The causation test asks the question: If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or acts that resulted in the injuries, that cannot be said to be part of the “ordinary course of things”? In other words, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?
The applicants further argued that the more recent decision of the Ontario Court of Appeal in Economical v. Caughy (“Caughy”) stands for the proposition that there is no requirement that a vehicle must be in active use, or able to be driven at all times, as long as the use being made is an ordinarily and well-known activity such as parking or changing tires. The applicants argued that the vehicle does not even have to be turned on, so long as the use being made of the vehicle is ordinary or well known.
Vice Chair Mathers concluded that while Caughy stated that the vehicle does not have to be in active use to meet the purpose test, Vytlingam stands for the idea that coverage is limited to motor vehicles being used as motor vehicles.
The fact that the vehicle was inoperable at the time of the incident, coupled with the fact that the vehicle was parked in a garage for a few days prior, supports the conclusion that the applicants were not using the vehicle for motoring purposes at the time of the incident.
Intact and Economical argued that the vehicle being inoperable at the time of the incident was an important consideration in this case. They relied on the Financial Service Commission of Ontario decisions in Olesiuk v. Kingsway General Insurance Company and Khan v. Certas to support their argument that repair of an inoperable vehicle does not constitute use of the vehicle as per the Schedule. The applicants relied on Olesiuk to argue that it is conceivable that the use or operation of a vehicle could start a chain of events that leads to necessary repairs that results in an impairment.
The determination of whether a vehicle is in use or operation within the meaning of the Schedule is very fact specific. This was not a case where the use or operation of the vehicle could be said to have started a chain of events that led to necessary repairs, which in turn resulted in the incident. The Applicants’ car had been in the applicants’ garage for several days before the incident took place.
Vice Chair Mathers could not see any connection between the vehicle being used for motoring purposes and the repair that was undertaken by the applicants several days after the vehicle was last used for motoring purposes. The fact that the vehicle was inoperable at the time of the incident, and the complexity of the repair undertaken, support the conclusion that the applicants were not using the vehicle for motoring purpose at the time of the incident.
The repair undertaken by the applicants was not an ordinary and well-known use of a vehicle by an insured that is covered under the Schedule. The applicants’ activities were that of a repairman, not a motorist, and the no fault automobile benefits provided in the Schedule are not meant to be available to a person whose only connection to the vehicle is that of a repairman.
Vice Chair Mathers also concluded that it is not a reasonable expectation of insured or insurers that insured’s who undertake to repair a third party’s vehicle, and are not using the vehicle for a motoring purpose at the time of the repairs, are covered by no-fault accident benefit. Vice Chair Mathers concluded that the injuries are not the result of an “accident” within the meaning of the Schedule. The claims were dismissed.
Discussion/ Take Aways
While the Court of Appeal in Caughy seemed to expand the “accident” definition beyond where the Supreme Court of Canada had taken Vytlingam, this LAT decision has applied the brakes, if you will, on this expansion of coverage, applying a reasonable expectation /common sense approach. The notion that replacing a fuel pump, an essential piece of equipment on an automobile, is one of the ordinary and well-known activities to which automobiles are put was a bridge too far for Vice Chair Mathers to cross. The irony of course is that some car nuts who routinely buy old cars and restore them might have a different perspective of “ordinary and well known activities” than others of us whose idea of ordinary and well known activities, vis a vis car repairs, extends only to putting gas in the car, and possibly air in the tires; the rest is for a mechanic.
Nathan Fabiano is an associate at ZTGH and author of this blog. If you have a question about this decision or a similar file, please contact Nathan (416)777-2811 ex 7975 or Eric Grossman.