Accident Benefit Reporter Volume 12, Issue 2

Planes, Trains and Automobiles

In this issue:

• Snowmobiles and Trailers
• Accident Benefits Entitlement
• Attendant Care Incurred
• Trauma Resource Directory

Snowmobiles & Trailers

By:

Leonard H. Kunka Partner | Thomson, Rogers

and

Carr Hatch Associate | Thomson, Rogers

 

As summer comes to a close, and winter only a few months away, recreational enthusiasts’ thoughts turn to winter sports and to snowmobiling.

There is often significant confusion surrounding how snowmobiles are treated for the purpose of insurance claims in the event of a snowmobile accident. Snowmobiles are required to be insured in the same manner as any other motorized vehicle which is used upon a highway. The typical snowmobile insurance policy is therefore the standard automobile policy.

Any claim involving a collision between two snowmobiles, a snowmobile and a pedestrian or a snowmobile and another type of vehicle will be treated in the same fashion as an automobile insurance claim. Statutory Accident Benefits are also available to the drivers and passengers.

If the accident involves a single snowmobile, the driver and passengers on the snowmobile are still entitled to the full compliment of Statutory Accident Benefits, should they be injured.

Ontario moved to a more customized form of automobile/snowmobile insurance in September of 2010. While certain basic coverages were reduced, optional benefits were introduced to allow people to customize insurance coverage to their needs. Owners of snowmobiles should carefully consider whether they should opt for the enhanced insurance benefits which increase the Statutory Accident Benefit limits in the case of non-catastrophic and catastrophic injuries.

Similar to motorcyclists, snowmobile occupants are fully exposed to numerous hazards. Snowmobile trails are lined with trees, as the trails weave in and out of forested areas. Any miscue can lead to sudden contact with a tree or rocks. Many trails continue across bodies of water, which creates numerous risks including breaking through the ice into icy waters below, ejection from the machine as the snowmobile goes over uneven terrain, or contact with an ice "shove". Trails contain sharp turns, steep slopes and the added complication of icy surfaces. Unfortunately, another risk of snowmobiling involves being on trails with other operators who are often inexperienced drivers, drive too quickly, or drive under the influence of alcohol.

Frequently, injuries arising from snowmobile accidents are serious and often "catastrophic". Enhanced optional benefits become important to help a person rehabilitate from their injuries. Similarly, the significant level of accident benefits available for catastrophic injuries becomes important when serious snowmobile accidents occur, particularly since many snowmobile accidents are single vehicle collisions.

The other component of claims involving snowmobiles revolves around the use of snowmobile trailers. A significant body of jurisprudence has developed, under Statutory Accident Benefits¹ and in tort, revolving around the question of whether insurance coverage extends to cover accidents arising out of the use and operation of a trailer.

The Ontario court decision of Healy v. Blake², addressed the issue of whether a homeowner’s policy, which excluded coverage for use and operation of a motor vehicle, applied where the Defendant was negligent in the construction and the connection of a trailer to an automobile, and the automobile was subsequently involved in an accident. The court applied the exclusion in the policy, and determined that the negligent construction and connection were considered to be "use and operation of a motor vehicle", resulting in the Plaintiff being unable to recover under their homeowner’s insurance policy.

In the Ontario Court Appeal decision of Copley v. Kerr Farms Ltd.³, a tomato hauler (farm employee) was injured while he was attempting to connect his tomato wagon, (which was a flat-bed trailer), to the back of his truck. If the Court determined that the wagon was an automobile, the Plaintiff would have been unable to recover for his personal injuries against the Defendant farm owner based on s. 267.1(1) of the Insurance Act⁴. The Court determined that the act of connecting a flat-bed tomato trailer to the truck constituted "use or operation of a motor vehicle", but the court also found that the tomato trailer was not an "automobile", as it had not yet been attached to the truck, nor was it under the "power and control" of the truck, and was therefore not a "trailer of a motor vehicle" as stated in the Compulsory Automobile Insurance Act⁵.

In Gramak Ltd. v. State Farm Mutual Insurance Co.⁶, when assessing insurance coverage, the court extended "use" to include the act of negligently drilling a hole through a car trunk to attach a travel trailer. The court stated: "The basic function of a motor vehicle is to carry people and personal property from place to place. And certainly the hauling of trailers as a means of carrying on this function is a common use of motor cars and in order to use trailers for this purpose it is necessary to make mechanical adjustments for the hook-up or wiring from car to trailer."⁷

Our courts have taken a generally broad approach⁸ when defining the scope of what amounts to use and operation, when trailers are involved. Considering how our courts have treated the "use and operation" with respect to the connection or attempted connection of a trailer to an automobile, it is vital for recreational enthusiasts and those planning on using trailers this upcoming winter to be informed of the coverage limitations and exclusions within their motor vehicle and homeowner’s insurance policies. The more customized form of insurance now available since the 2010 automobile insurance amendments, combined with the typical risks associated with towing trailers and recreational vehicles should lead owners and users to consider more expansive coverage; regardless of whether they are the avid snowmobiler, or the farmer pulling a tomato wagon.

 

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Accident Benefits Entitlement

By:	Stacey L. Stevens Partner | Thomson, Rogers

 

Pocket Bike Rider Injured in a Collision on Private Property Entitled to Claim Statutory Accident Benefits From Her Automobile Insurer.

On January 13, 2008, Cassandra Bouchard sustained serious injuries when she was riding a pocket bike. The pocket bike was owned by Kristin Stratton and was being ridden on his property. The pocket bike was not insured. Ms. Bouchard applied for accident benefits through her own automobile insurer, Motors Insurance.

Pocket bikes are restricted-use vehicles which are not intended to be ridden on public roads; are not street legal because they do not have VIN numbers; and drivers of the bikes are not required to be licensed or wear protective equipment. Pocket bikes are usually less than 50 cm (20 in), and up to 1 m (3 ft 3 in) length. The bike usually packs a 39–50 cc two-stroke engine with a maximum of 4.5–6 horsepower. Its maximum speed varies between 30 to 64 km/h.

Motors Insurance denied Cassandra’s application and took the position that a pocket bike was not an "automobile" and therefore her injuries were not sustained in an "accident" as required by section 3(1) of the SABS which states:

" ... "accident" means 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 aid, prosthesis or other medical or dental device ..."

Defining the word "automobile" is not a simple task. The SABS do not define the word "automobile" but it is woven together by a group of interacting legislative and regulatory provisions contained in the Insurance Act, the Compulsory Automobile Insurance Act, the Highway Traffic Act and the Off-Road Vehicles Act. Further, the Court of Appeal in Adams v. Pineland Amusements Ltd. et al 88 O.R. (3d) 321 sets out a three part test for defining an "automobile" which asks:

• Was the vehicle an automobile in common parlance? If the answer is "no" then,
• Is the vehicle defined as an automobile in the wording of the insurance policy? If the answer is again "no", then
• Does the vehicle fall within any enlarged definition of "automobile" in any relevant legislation.

An affirmative answer to any of these three questions classifies the vehicle as an automobile insured by the Standard Automobile Insurance Contract.

The parties agreed that a pocket bike was not an "automobile" in common parlance and is not defined as an automobile in the wording of an insurance policy. The crux of the issue was whether the pocket bike fell within any enlarged definition of "automobile" in any relevant legislation or is an automobile by virtue of its being required to be insured by any Act pursuant to section 224(1)(a) of the Insurance Act.

The Highway Traffic Act, R.S.O. 1990 c.H.8 defines a motor vehicle as "an automobile and any other vehicle propelled or driven otherwise by muscular power". Given the nature of a pocket bike, the Arbitrator considered the definition of an off-road vehicle in the Off Road Vehicles Act, R.S.O. 1990 c.O.4 Section 1 defines an off-road vehicle as a "vehicle propelled or driving otherwise than by muscular power… on not more than three wheels". Based on these definitions, the Arbitrator concluded that the pocket bike fell met the third category of the Adams test.

Arbitrator Ashby then considered whether the pocket bike was required to be insured by any Act. Section 15(1) of the Off Road Vehicles Act requires off-road vehicles to be insured unless it is being operated on land occupied by the owner of the vehicle.

As expected, Motors Insurance argued the pocket bike was not required to be insured as it was being ridden on property occupied by the bike’s owner Mr. Stratton. However, Mr. Stratton’s evidence was that in addition to riding the bike on his property he also rode it at his friend’s house.

Arbitrator Ashby relied on this evidence to conclude the pocket bike did not meet the narrow exception provided by section 15(1) as it was not solely ridden on Mr. Stratton’s property and therefore it was required to be insured under the Act. Her reasoning for this decision is as follows:

Subsection 15(1) of the Off-Road Vehicles Act states: "No person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act." The only exception to this rule is an off-road vehicle driven on lands occupied by its owner as set out in subsection 15(9). It is a very narrow exclusion. Clearly the legislature intended that off-road vehicles be insured unless they were used solely on lands occupied by the owner. I agree that it would be an absurd result if each time an owner was to drive the vehicle on lands other than those she or he occupied insurance had to be procured. In my view, the consequence of the owner of the pocket bike driving it at "my friend’s house" was the necessity to insure it."

As a consequence, Arbitrator Ashby ruled that Cassandra Bouchard was involved in an accident within the meaning of subsection 3(1) of the Schedule and entitled to Statutory Accident Benefits. Motors Insurance did not appeal this decision.

This decision raises some interesting issues in light of the increased use and operation of motorized Scooters and E-Bikes on our roads. While these vehicles may be street legal, many do not require insurance. This raises the question; what benefits are you entitled to in the event of an accident and how does riding an uninsured vehicle affect your right to sue the at fault driver for damages. Given FSCO’s approach in this case it is likely we have not seen the end of these novel approaches to defining an "automobile".

Please feel free to post your comments at: www.thomsonrogers.com/stacey-stevens-blog

 

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Attendant Care Incurred Under the September 1, 2010 SABS

By:	David F. MacDonald Partner | Thomson, Rogers

 

Insurers have been obliged to pay for "incurred expenses" for attendant care under successive Statutory Accident Benefit Schedules (SABS). Wawanesa v. Smith¹ stood for the proposition that:

"… the word "incurred" is capable also of the wider meaning of "run into", "render oneself liable to", "bring upon oneself" or "be subject to". There is a wider sense in which the expenditure is incurred within the time limit as soon as it is known with certainty that it is necessary and the amount is known."

On September 1, 2010, the SABS was amended. The new Section 3 (7)(e) states:

3 (7)(e) " subject to subsection (8), an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(i) the insured person has received the goods or services to which the expense relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person;"

The September 1, 2010 SABS enshrines the right for an attendant care provider to be a family member. Specifically, Section 3 (7)(c) provides:

3 (7)(c) " For the purposes of this regulation, an aid or attendant for person includes a family member or a friend who acts as that person’s aid or attendant, even if the family member or friend does not possess any special qualifications."

In the normal course, as a pre-requisite to payment of attendant care, an occupational therapist or nurse will prepare a Form 1 which identifies the attendant care need.

In the context of attendant care, if

1. the insured person (injured person) has received attendant care;
2. the injured person has paid, promised to pay, or is legally obligated to pay for the Attendant Care; and
3. the attendant care provider did so in the course of the employment, occupation or profession in which he or she would normally have been engaged, but for the accident,

The insurer is obliged to pay the attendant care expense. Equally, if

1. the injured person has received attendant care;
2. the injured person has paid, promised to pay, or is legally obligated to pay for the attendant care; and
3. the attendant care provider sustained an economic loss as a result of providing attendant care,

The insurer is obliged to pay the attendant care expense.

In dealing with the insured person’s obligation to pay for attendant care, in the ordinary course an insured person is in a position to agree or promise to pay a family member for services which they provide as an attendant. As such that is not a significant hurdle. For a child, a custodial parent or guardian may pay for, provide a promise to pay for or have the legal obligation to pay for attendant care.

If an attendant care provider did so in the course of the occupation which he or she would have normally been engaged but for the accident, attendant care is payable.

As such if, on a pre-accident basis, a family member is regularly occupied by providing care to another family member, that may be considered a person’s occupation.

If a family member regularly passes his or her time providing care to a family member that is an "occupation".

If a family member’s calling or pursuit is taking care of another family member, that too may be considered an "occupation" in accordance with the Oxford English Dictionary’s definition.

Economic Losses

In addition, there are many economic losses which may be suffered as a result of using one’s time to provide attendant care, thereby leaving one unable to provide services for the purposes of other pursuits which have an economic value.

A loss is either non-economic (non-pecuniary) or economic (pecuniary).

Non-pecuniary losses are comprised of all losses which do not represent an in-road upon the person’s financial or material assets, such as physical pain or injury to feelings. Pecuniary loss is everything else.

A loss is either calculable or not calculable. If it is calculable it is an economic loss. If it is not calculable it is a non-pecuniary loss. A loss may be a pecuniary loss "even though the calculation must sometime be a rough one where there are difficulties of proof".²

Section 61 of the Family Law Act, provides for the payment to family members of a non-pecuniary loss (loss of care, guidance and companionship). Family members are also entitled to "recover pecuniary losses arising from injury or death" (S.61). Damages may include "a reasonable allowance for loss of income or the value of services provided ..." (S.61 (2) (d)). The value of services provided is thus an economic loss unto itself, under this Act.

The loss of housekeeping capacity is also an economic loss in tort which is evaluated pecuniarily. A person who provides attendant care to a family member incurs an economic loss. Providing this care may impair his/her ability to perform household tasks. This also is an economic loss.

Specifically, when he/she is not able to attend to housekeeping tasks because he/she is providing attendant care or when person "B" provides the housekeeping services because person "A" is occupied with providing attendant care, it is settled law that the value of the services provided are special damages or economic losses. ^{3,4 & 5}

Dr. Jack Carr, an Economist has evaluated three potential economic losses which a laid off mother providing attendant care may have.

The mother did not have a job at the time of the accident, having been laid off previously. She could not be said to have permanently left the labour market. One of her economic losses was the loss of her availability to apply for a position to earn a living in her previous job or similar employment.

Secondly, this mother had another child. She was prevented/compromised in her ability to provide care to her second child in that she was required to devote herself full time to provide attendant care for her injured son. The cost of attendant care or babysitting services for her other child is an economic loss which she would sustain as a result of the need to provide attendant care to her injured son. Even voluntary services provided to supervise her other child are capable of pecuniary calculation and thus are an economic loss.

Finally, by virtue of her need to provide attendant care to her son, she was unable to engage in the regular home maintenance and housekeeping tasks in which she would otherwise have engaged. This too has been identified by Dr. Carr and the Courts as an economic loss.

A further alternative available for the family members is to engage a sitter to provide the care. This ordinarily is not the most economically viable option, given that the rates paid for attendant care under the Form 1 are substantially below market rates.

As to the nature or the extent of the economic loss necessary to trigger entitlement, we can expect a remedial and liberal interpretation of this phrase by the Courts and Arbitrators. If one sustains an economic loss, then one is to be paid attendant care expenses in accordance with the need identified by the Form 1, and the expense applications. Courts will likely accept that the phrase "an economic loss" as it has no modifiers nor qualifications, will be interpreted broadly, in favour of the accident victim so that a modest economic loss will qualify and entitle the care provider for the injured person to receive payment for the full value of the attendant care which he/she provides as determined using the Form 1 and reflecting the amount of time for which services have been provided by the attendant care provider. That is, so long as the loss is not non-pecuniary (ie. related to pain or feelings and as such not calculable), it is a pecuniary or economic loss capable of calculation. If the attendant care provider has an economic loss, attendant care is payable in accordance with the Form 1.

Denials May Lead To Entitlement:

Where there is a denial by the insurer of an expense related to attendant care, Section 3 (8) of the SABS also assists the insured/injured person. It states:

" ... if in a dispute… a Court or Arbitrator finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of an expense, the Court or Arbitrator may, for the purposes of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred."

As such, if there is a denial of attendant care and the Arbitrator finds the denial to be one of the reasons an expense for attendant care treatment was not incurred the Court or Arbitrator may deem attendant care to be incurred. For example if a person required attendant care, payment was delayed and the person available to provide attendant care was a family member who did not sustain an economic loss or did not do so in the course of his or her usual occupation, an Arbitrator’s Order may reinstate entitlement.

In these circumstances, injured people will be well advised to engage appropriately trained nurses, occupational therapists and legal counsel who can identify the attendant care need and, if denied, are prepared to proceed to Arbitration and bring Interim Motions to obtain an Order compelling the insurer to pay attendant care.

Expense Applications

Applicants for payment of attendant care expenses for services they have provided should include information in the Expense Application relating to the attendant care. Where appropriate arrangements have been made with the injured person, the person submitting the claim for payment of the attendant care should indicate on the Expense Application:

" I, the undersigned hereby certify that the insured person for whom I am performing these services has [use one of:] paid [or], promised to pay me for these services. I have [use one of:] provided these services in the course of my regular occupation or profession [or] sustained an economic loss as a result of providing these services to the insured person."

Motions for Interim Benefits

Motions for payment of interim benefits at the Financial Services Commission of Ontario have been a very helpful resource for injured persons and families who have provided attendant care to family members and had insurers deny the claim.

Two such interim motions, Keyes v. The Personal and Haimov v. ING Insurance were brought by counsel of record, David MacDonald. Each of these motions resulted in the Arbitrator ordering the insurer to pay past attendant care benefits and attendant care benefits on an ongoing basis. Copies of these cases may, in appropriate instances, be sent to adjusters to remind them of their obligation and the consequences of failing to pay reasonable attendant care owing to injured people who require this attendant care. These decisions may be downloaded from the firm profile page of the author, David MacDonald at www.thomsonrogers.com/david-macdonald.

The Meaning of "Occupation"

The Oxford Dictionary definition of "occupation" includes:

"what occupies one"
" a means of passing one’s time"
" a business, calling or pursuit"

Absent an accident, children, spouses, siblings or parents often provide attendant care in the course of their usual occupation.

Occupational Therapy’s definition of "occupation" is inclusive of one whose regular activities include, for instance, providing care to a relative. In fact, it includes "any human endeavour that provides meaning or purpose in our lives".

 

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Trauma Resource Directory

We are pleased to announce the launch of the online Trauma Resource Directory. It can be found at www.traumaresourcedirectory.com.

The directory allows health practitioners to upload their contact information, including their area of specialization, their years of experience, the area of the province they service and the languages they can speak.

All service providers are welcome to sign up for this free online directory which will be regularly used by discharge planners at hospitals, lawyers, insurance adjusters, other health practitioners along with accident victims and their families.

Sign up with the online Trauma Resource Directory - www.traumaresourcedirectory.com and be FOUND.

Should you have any questions, please contact Joseph Pileggi at jpileggi@thomsonrogers.com.

If you have any questions regarding the articles in this issue of the Accident Benefit Reporter, please contact the following authors:

Leonard H. Kunka
lkunka@thomsonrogers.com

Carr Hatch
chatch@thomsonrogers.com

Stacey L. Stevens
sstevens@thomsonrogers.com

David F. MacDonald
dmacdonald@thomsonrogers.com

Accident Benefit Reporter is a publication of Thomson, Rogers
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Toronto, Ontario M5H 1W2

Tel 416-868-3100
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The material in this newsletter is provided for the information of our readers and is not intended nor should it be considered legal advice. For additional copies or information about "Accident Benefit Reporter", please contact Thomson, Rogers.

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Posted: November 2, 2011