) ) CASSONDRA BOUCHARD Applicant – v. –, 2013 ONSC 2205

CITATION : Bouchard v. Motors Insurance Corporation and Financial Services Commission of Ontario, 2013 ONSC 2205 DIVISIONAL COURT FILE NO.: 392/12 DATE: 20130412 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, SACHS AND HARVISON YOUNG JJ. BETWEEN: ) ) CASSONDRA BOUCHARD Applicant – and – MOTORS INSURANCE CORPORATION and FINANCIAL SERVICES COMMISSION OF ONTARIO Respondents )) )) )) )) )))) David S. Steinberg , for the Applicant J.

Claude Blouin, for the Respondent, Motors Insurance Corporation Mark Bailey , for the Respondent, Financial Services Commission of Ontario ) ) HEARD at Toronto: April 12, 2013 molloy j. (ORALLY) [ 1 ] This is an application for judicial review of a decision made by a delegate of the Director of Arbitrations of the Financial Services Commission of Ontario (“FSCO”) reversing a decision of an FSCO Arbitrator. The Director’s Delegate concluded that the applicant was not involved in an “accident” within the meaning of the Statutory Accident Benefits

Schedule – Accidents on or after November 1, 1996, O.R. 403/96 ( “SABS” ), so as to be entitled to statutory accident benefits. [ 2 ] The applicant asks this court to set aside the decision of the Director’s Delegate. [ 3 ] The issue before the Director’s Delegate was a pure question of law: whether an off- road motorized bike (“a pocket bike”) met the definition of “automobile” under the relevant legislation. The parties are in agreement that in this case that turns on whether the pocket bike was required to be insured under the Off-Road Vehicles Act , R.S.O. 1990, c. O.4.

If so, the applicant had coverage for SABS under a motor vehicle insurance policy. If not, there was no such coverage. [ 4 ] On January 13, 2008, the applicant was involved in a collision and injured while driving a pocket bike that was owned by Mr. Kristin Stratton, on Mr. Stratton’s leased property. Accordingly to the agreed statement of facts, Mr. Stratton had previously used the pocket bike on his own property and on the property of a friend. However, at the time of the injury to the applicant, she was driving the bike on Mr.

Stratton’s property. [ 5 ] In the first instance, the Arbitrator found that the pocket bike was an automobile within the meaning of s. 224(1)(

a) of the Insurance Act . She also found that the bike qualified as an off-road vehicle pursuant to s. 1 (

a) of the Off-Road Vehicles Act . An off-road vehicle must be insured pursuant to s. 15 of the Act unless it is driven “on land occupied by the owner”. Since Mr. Stratton also drove the pocket bike on his friend’s property, it was required to have been insured. As a result, even though the collision occurred on Mr. Stratton’s property, the pocket bike was found by the Arbitrator to be an “automobile” pursuant to s. 224(1)(

a) of the Insurance Act , and therefore, the applicant was involved in an accident within the meaning of s. 2(1) of SABS.

[6] The Director’s Delegate reversed the decision of the Arbitrator, essentially relying on the Ontario Court of Appeal decisionin Copley v. Kerr Farms Ltd. (2002), (ON CA), 59 O.R. (3d) 346 (C.A.), in which the Court of Appeal had todetermine whether a tomato wagon that was being attached to a motor vehicle when the incident occurred was an automobile within themeaning of the Insurance Act. The Court considered s. 2(1) of the Compulsory Automobile Insurance Act, R.S.O. 1970, c. C.25. Underthat section, a motor vehicle that is being operated on a public highway is required to be insured.

Since the tomato wagon was not beingoperated on a highway when the incident occurred, s. 2(1) did not require the tomato wagon to be insured. The court reasoned that eventhough the tomato wagon was regularly taken on the highway, s. 2(1) speaks only to motor vehicles that are being operated on thehighway at that point in time. Applying that reasoning, the Director’s Delegate concluded that since the pocket bike was being operatedon Mr.

Stratton’s property when the collision occurred, the Off-Road Vehicles Road Act did not require the pocket bike to be insured andtherefore the applicant was not operating an automobile and was not involved in an accident under s. 2(1) of SABS. [7] The Director’s Delegate’s decision turns on the

interpretation of a statute squarely within his specialized area of expertiseand is entitled to deference. The Court of Appeal held in Pastore v. Aviva Canada, 2012 ONCA 642 that the applicable standard ofreview is reasonableness. [8] The applicant seeks to differentiate Copley from the present case by stating that the pocket bike status as a vehicle does notdepend on being connected to a motor vehicle, unlike the tomato wagon in Copley. We do not agree.

Copley is directly applicable andbinding. [9] The Director’s Delegate correctly pointed out that both the Compulsory Automobile Insurance Act, which was interpreted inCopley, and the Off-Road Vehicles Act being interpreted here, are provisions relating to motor vehicles which are in the present tense. He stated at page 6 of his decision: “The general rule of construction set out in

Section 63 of the Legislation Act, 2006, S.O. 2006, c. 21,

Schedule F, is that “The law isalways speaking, and the present tense shall be applied to circumstances as they arise.” The only difference between the two is that theCAIA uses the active voice – no owner of a motor vehicle shall operate the motor vehicle – whereas the ORVA uses the passive – wherethe vehicle is driven. I am not persuaded that this serves to convert the focus on the present, as required by the Legislation Act, into apresumption that the exception does not apply if a vehicle was ever driven off-property in the past. That is not applying the present tenseto the circumstances as they arise.

Furthermore, the Court of Appeal in Copley did not distinguish between the active and the passivevoice but instead stated that “The prohibition in Section 2(1) [of the CAIA] speaks in terms of a motor vehicle that is operated on thehighway.” Similarly, the exception in Section 15(9) of the ORVA speaks in terms of a vehicle that is driven on land occupied by theowner of the vehicle.” I find that Copley is not distinguishable on the basis set out by the Arbitrator and that her

interpretation of Section 15(9) was incorrect. Itfollows that the Copley “time and circumstances” analysis applies in this case. The pocket bike was being operated on Mr. Stratton’sproperty when the incident occurred. In those circumstances and at the time, the ORVA did not require Mr. Stratton’s pocket bike to beinsured under an automobile insurance policy. Therefore, Ms. Bouchard was not operating a motor vehicle and was not involved in an accident within the meaning of Section 2(1) ofthe SABS.

The appeal is allowed. [10] We agree with the analysis of the Director in that regard. [11] We accept that the underlying purpose and intent of the Off-Road Vehicles Act is the protection of the public in the context ofthe use of off-road vehicles by imposing certain responsibilities on owners. One of those obligations is the requirement of insurance fora pocket bike under ss. 15(1) and (2) of the Off-Road Vehicles Act which provide: Insurance 15(1) No person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with theInsurance Act. R.S.O. 1990, c.

O.4, s. 15(1).

(2) No owner of an off-road vehicle shall permit it to be driven unless it is insured under a motor vehicle liability policy inaccordance with the Insurance Act, R.S.O. 1990, c. O.4 [12] However, the legislature also saw fit to provide an exemption to those provisions in s. 15(9) of the Act as follows: Exemption (9) Subsections (1), (2) and (3) do not apply where the vehicle is driven on land occupied by the owner of the vehicle. R.S.O. 1990,c. O.4, s. 15(9). [13] The applicant seeks to interpret that exemption provision as being inapplicable if the owner of the bike ever takes the bike offhis own property or at least that he “regularly” does so. In our view, such an

interpretation implies that the exemption applies only if thebike is used “solely” or “exclusively” on the owner’s own property. That is not what the

section says. Giving the words used their plainand ordinary meaning, the bike is only required to be insured when it is off the owner’s property. Whenever it is operated on theowner’s property, it is not required to be insured.

[ 14 ] We also do not consider that such an

interpretation does violence to the statutory scheme or to the purpose and intent of the legislation. [ 15 ] The person injured while the bike is operated on the owner’s property is protected by occupier’s liability and tort claims against the owner of the property. An operator of the vehicle when off the property has coverage under uninsured motor vehicle provisions if the bike is uninsured. [ 16 ] A contextual and purposive analysis of the legislation, including the exemption in s. 15(9) requires that the analysis of whether insurance was required is both time sensitive and context sensitive.

In this regard, we believe the Court of Appeal’s analysis in Copley is directly applicable. This analysis was also adopted and applied by the Court of Appeal in Adams v. Pineland Amusements Ltd., 2007 ONCA 844 at paras. 15-17 . [ 17 ] The past use of the bike is not the determinative point. As was the case in Copley , the determinative point is not the use of the bike in the past but at the time of the accident. At the time of the accident, the pocket bike was being operated on Mr.

Stratton’s property and was not required to be insured. [ 18 ] Accordingly, we find the decision of the Director’s Delegate in this regard to be reasonable. His reasoning process was logical and transparent and the result is within a range of possible, acceptable outcomes which is defensible in respect of the facts and the law. Furthermore, the Director’s decision is consistent with prior decisions of FSCO in similar cases (see Turner v. CAA Insurance Co. (Ontario) [2000] O.F.S.C.I.D. 34, Donovan v.

Co-operators General Insurance Co. [2000] O.F.S.C.I.D. 57), as well as with the Court of Appeal decisions I have cited). [ 19 ] According, this application for judicial review is dismissed. COSTS [ 20 ] I have endorsed the Application Record, “The application is dismissed for oral reasons delivered today. Costs to the respondent Motors Insurance Corporation fixed at $8,665.74 payable by the applicant.” MOLLOY J. SACHS J. HARVISON YOUNG J. Date of Reasons for Judgment: April 12, 2013 Date of Release: April 30, 2013 CITATION : Bouchard v.

Motors Insurance Corporation and Financial Services Commission of Ontario, 2013 ONSC 2205 DIVISIONAL COURT FILE NO.: 392/12

DATE: 20130412 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, SACHS AND HARVISON YOUNG JJ. BETWEEN: CASSONDRA BOUCHARD Applicant – and – MOTORS INSURANCE CORPORATION and FINANCIAL SERVICES COMMISSION OF ONTARIO Respondents ORAL REASONS FOR JUDGMENT MOLLOY J. Date of Reasons for Judgment: April 12, 2013 Date of Release: April 30, 2013