Dobson v Hill, 2019 ABQB 904

Court of Queen’s Bench of Alberta Citation: Dobson v Hill, 2019 ABQB 904 Date: 20191127 Docket: 1303 00030 Registry: Edmonton Between: David R. Dobson Plaintiff - and - Raymond Michael Hill, Raymond Michael Hill operating as Anthill Hauling, ABC Corporation, the Administrator of the Motor Vehicle Accident Claims Act and John Doe Defendants _______________________________________________________ Reasons for Decision of W.S. Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This application is about the

interpretation of s 5(1) of the Motor Vehicle Accident Claims Act ; specifically, whether the results of a trailer explosion are covered by the Motor Vehicle Accident Claims Fund. The facts are not in dispute. [ 2 ] In January 2011, the Plaintiff was at a well site near Grande Cache with his heater truck. The Defendant, Hill, was at the well site with his water truck and trailer to supply water to the Plaintiff’s heater truck. It was very cold. [ 3 ] The valve to release the water from Hill’s tanker-trailer had frozen. Dobson went to find a steam wand to thaw it. He could not find one and returned to the truck.

Hill was trying to thaw the valve on the water tanker trailer with a propane torch. [ 4 ] That proved to be a bad decision. There was some combustible material in Hill’s tank that exploded just as Dobson returned to the truck. Dobson was badly injured. We do not know about Hill. [ 5 ] Dobson was given Judgment against Hill (by consent). There was Workers’ Compensation but Hill had no insurance. Dobson made a claim under s 5 of the Motor Vehicle Accident Claims Act , which was denied under s 5(3)(d). The substance of the denial related to the fact that it was the trailer that exploded, not the tractor unit.

Section 5 permits an application to the Court to deal with the denial. The issue is whether the tanker trailer can be a motor vehicle for the purposes of the Motor Vehicle Accident Claims Act . [ 6 ] The Motor Vehicle Accident Claims Act adopts the meaning of ‘motor vehicle’ from the Traffic Safety Act . The definition of

motor vehicle in the Traffic Safety Act does not include ‘trailer’, which is separately defined. [7] Parenthetically, I note that trailers are registered once. Motor vehicles are registered annually and a levy is collected from theannual registration to cover the Accident Claims Fund. [8] Dobson argues that the distinction between a motor vehicle and a trailer is purely artificial when the trailer is attached to thetruck and used in conjunction with it. In the Hauck case (Hauck v Dominion of Canada General Insurance Company, 2005 ABCA160) we find: [10] The

interpretation of automobile insurance coverage provisions has been a topic of recent judicial consideration. Initially, trailerswere regarded as mere appendages: their operation was dictated by the tractor. As a result, it was only the operation of a tractor thatcould be negligent: see Quinnsway Transport Ltd. et al. v. Kavanagh (1982), (NL CA), 40 Nfld. & P.E.I.R. 184(Nfld. C.A.); Stromberg and Gerlitz v. South British Insurance Co. Ltd. (1952), (AB CA), 6 W.W.R. (N.S.) 193(Alta. S.C. (A.D.)); State Farm Mutual Automobile Insurance Co. v.

Zurich Insurance Co. (1988), (ON SC), 66O.R. (2d) 176 (H.C.J.); Superior Equipment Haulers Ltd. v. Zurich Insurance Co. (1988), 1988 ABCA 28 , 57 Alta. L.R. (2d)158 (C.A.). [11] However, in Aetna [Aetna Insurance Company v Canadian Surety Company, (1994), 1994 ABCA 145 , 149 AR321(CA)] this Court abandoned that absolute approach and concluded that a trailer could be operated negligently. Under Aetna,negligent operation of a trailer could exist if the damage was tied to the movement or operation of that trailer.

While the damage had tobe tied to the movement or operation specifically, Aetna did expand the application of insurance coverage. [12] The development of this area continued with Amos [Amos v Insurance Corp of British Columbia, (SCC), [1995] 3SCR 405]. In Amos, a driver was shot while attempting to flee a carjacking. Justice Major, in interpreting whether the injuries arose outof the ownership, use or operation of a motor vehicle, enunciated a two-part test: 1. Did the accident result from the ordinary and well-known activities to which automobiles are put? 2.

Is there some nexus or casual relationship (not necessarily a direct or proximate causal relationship) between the injuries and theownership, use or operation of the motor vehicle, or is the connection between the injuries and the ownership, use or operation of thevehicle merely incidental or fortuitous? [13] On the facts of Amos, Major J. found that the test was met.

Although the automobile was not the instrument that caused theinsured’s injuries, and although there was no negligence associated with its operation, there was a sufficient nexus as the shootingoccurred while the assailant was attempting to enter the automobile. In arriving at this conclusion, Major J. adopted the reasoning ofKangas v. Aetna Casualty and Surety Co., 235 N.W. 2d 42 (Mich.

C.A. 1975) in which the Michigan Court of Appeals held that“arising out of” was broader than “caused by” and synonymous with “originating from”, “having its origin in” and “flowing from.” [14] Since Amos, several courts have applied the reasoning of Major J. in a variety of instances, in many of which the use of anautomobile played what might be described as merely a supporting role. In Lefor (Litigation guardian of) v.

McClure (2000), (ON CA), 49 O.R. (3d) 557 (C.A.), the Ontario Court of Appeal held that a child hit by oncoming traffic while crossing thestreet, after exiting her mother’s vehicle, suffered injuries arising from the operation of her mother’s vehicle. The court held that therewas a clear nexus between the operation of the vehicle and the injuries suffered because stopping vehicles to pick up and drop offpassengers is a well-known aspect of the use and operation of motor vehicles. In Beger v.

MacAstocker Estate (1996), (AB KB), 192 A.R. 241 (Q.B.), the nexus was found to exist when a motorist was driven off the road and assaulted by a fellowmotorist. The same nexus was found in another incident involving assault due to “road rage”: Itani v. Stan Poulson Trucking Ltd.(2002), 320 A.R. 375, 2002 ABCA 8 . Finally, in Chan v. Insurance Corporation of British Columbia (1996), (BC CA), 16 B.C.L.R. (3d) 96 (C.A.) the British Columbia Court of Appeal held that the rationale in Amos is of general applicationin the

interpretation of coverage provisions. [9] I acknowledge that the Court is not to rewrite legislation under the guise of statutory

interpretation (eg Canada v CanadaNorth Group Inc, 2019 ABCA 314, at para 83 per Wakeling JA, dissenting). [10] In the Alberta Legislative Assembly (Hansard, May 8, 1996 at 1471), we are told that the intention of the Motor VehicleAccident Claims Act is to put injured third-parties ‘in the same position as they would have been in terms of recovery for damage had itnot been for an uninsured motorist...’. In my view, we are also entitled to look beyond the statute itself, on the principle of consistencywith similar legislation (ie Azevedo v Markel Insurance Company of Canada, 1999 ABCA 301, at para 13).

Finally, Rizzo (Rizzo &Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27, at para 36) tells us that benefits-conferring legislation should be givena broad and generous

interpretation, with any doubts being resolved in favour of a claimant. [11] The accident was caused by the operation of a trailer attached to a motor vehicle. The accident fits within the principles statedin Hauck, above, and there is a chain of causation between the use of the truck, the trailer and the cause of the injury (eg Citadel GeneralAssurance Co v Vytlingam, 2007 SCC 46, at para 25 and Lumbermens Mutual Casualty Co v Herbison, 2007 SCC 47, pages 403 – 404at para 14). [12] Accordingly, it is my view that the Motor Vehicle Accident Claims Act, properly interpreted, covers Mr. Dobson for thisaccident.

Disposition [13] The application is allowed. My compliments to counsel for this interesting issue, nicely packaged and ably argued.

Heard on the 20 th day of November, 2019. Dated at the City of Edmonton, Alberta this 27 th day of November, 2019. W.S. Schlosser M.C.Q.B.A. Appearances: John Hagg Stillman LLP for the Plaintiff Lionel Whittaker Alberta Justice for the Defendant, The Administrator of the Motor Vehicle Accident Claims Fund