A snow plow was held to be a “heavy commercial vehicle” for the purposes of the Ontario loss transfer provisions. Use of the phrase “and includes” in the applicable regulation expanded the types of automobiles captured under section.

Insurance law – Automobile insurance – Automobile – Definition – Heavy commercial vehicle – No-fault coverage – Loss transfer provision – Use of vehicle – Statutory provisions

Dominion of Canada General Insurance Co. v. Aviva Canada Inc., [2015] O.J. No. 5153, 2015 ONSC 6195, Ontario Superior Court of Justice, October 6, 2015, C. J. Brown J.

The insured was injured after snow from an overpass fell onto his car, shattering his moon roof. A witness identified the cause of the snow fall as a passing snow plow, but was unable to identify the company. Only two snow plow companies operated in the area. The insurer and the two snow plow insurers proceeded to arbitration to determine whether the matter was subject to the Ontario loss transfer provisions for no fault benefits. The matter turned on the interpretation of Automobile Insurance, R.R.O. 1990, Reg. 664 (“Regulation 664”), which partially provided as follows:

1  In this Regulation,

“commercial vehicle” means an automobile used primarily to transport materials, goods, tools or equipment in connection with the insured’s occupation, and includes a police department vehicle, a fire department vehicle, a driver training vehicle, a vehicle designated specifically for construction or maintenance purposes, a vehicle rented for 30 days or less, or a trailer intended for use with the commercial vehicle;

9(1)  In this section

…

“heavy commercial vehicle” means a commercial vehicle with a gross vehicle weight greater than 4,500 kilograms.

The arbitrator found that the snow plows were heavy commercial vehicles and therefore subject to loss transfer. While the arbitrator found that the snow plows were not “used primarily to transport materials…”, she determined they were automobiles “designated specifically for construction or maintenance purposes”. The snow plow insurers appealed, arguing that the section required the automobile in question to be both an automobile “used primarily to transport materials…” and “designated specifically for construction or maintenance purposes” in order to meet the criteria for a commercial vehicle. The court upheld the arbitrator’s decision on a correctness standard. By adding “and includes” the legislature expanded the list of vehicles captured under the section. There was not a two-part test under the section. The approach advocated by the snow plow insurers would result in the list of vehicles after “and includes” rarely being subject to the loss transfer provisions, which was not the intent of the legislation.

This case was digested by Michael J. Robinson and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at mrobinson@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.

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