DECISION WITH RESPECT TO PRELIMINARY ISSUE

Transcription

1 IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. I. 8 as amended AND IN THE MATTER OF THE ARBITRATION ACT, S.O. 1991, c.17 as amended B E T W E E N : AND IN THE MATTER OF AN ARBITRATION AVIVA INSURANCE COMPANY OF CANADA Applicant - and - WAWANESA MUTUAL INSURANCE COMPANY Respondent DECISION WITH RESPECT TO PRELIMINARY ISSUE COUNSEL Kevin H. Griffiths Evans, Philp LLP Counsel for the Applicant, Aviva Insurance Company of Canada (hereinafter referred to as Aviva ) J. Claude Blouin Blouin, Dunn LLP Counsel for the Respondent, Wawanesa Mutual Insurance Company (hereinafter referred to as Wawanesa ) ISSUE In the context of a loss transfer dispute pursuant to Section 275 of the Insurance Act, R.S.O c.i.8, the preliminary issue before me is whether loss transfer is available in a situation where the claimant, while operating a forklift truck on private property, was involved in an incident involving a tractor trailer. The Respondent Wawanesa contends that the forklift being operated by the claimant was not an automobile and as a result, loss transfer would not be available. PROCEEDINGS The preliminary issue proceeded on the basis of an Agreed Statement of Facts and written submissions.

2 2 AGREED FACTS 1. Orlando Tassone was injured in a June 9 th, 2007 incident, hereinafter referred to as the incident, that took place at a furniture factory located at 180 New Huntington Rd, in Woodbridge, Ontario. 2. At the time of the incident, Aviva insured Orlando Tassone s pick-up truck under motor vehicle liability policy A Orlando Tassone was a named insured under said policy and the policy did not also insure a heavy commercial vehicle. 3. Aviva paid Statutory Accident Benefits to Orlando Tassone as a result of injuries that he sustained in the incident. 4. At the time of the incident, Wawanesa insured a tractor trailer, hereinafter referred to as the tractor trailer. The tractor trailer was a heavy commercial vehicle within the meaning of section 9 of Ontario Regulation The incident occurred on private property occupied by Campio Furniture Limited, hereinafter referred to as Campio Furniture. The premises occupied by Campio Furniture included a warehouse that contained docking bays. 6. The docking bays at Campio Furniture are designed to allow a forklift to efficiently travel between the warehouse and the inside of a trailer. The docking bays have bumpers around the opening to the docking bay doors to allow the back bumper of a trailer to touch the bumper of the docking bay. This typically results in a small gap between the docking bay floor and the trailer deck. The docking bays have a hydraulic platform that can be raised or lowered to the height of a trailer deck. The platform acts as a bridge over the gap. 7. Immediately before the incident, the tractor trailer was reversed up against a docking bay. The docking bay door and the trailer door were open. The hydraulic platform was in place to act as a bridge between the docking bay floor and the trailer deck. 8. Orlando Tassone was operating a forklift inside the Campio Furniture warehouse and intended to drive the forklift into the trailer in order to unload cargo. However, when the forklift was approximately halfway onto the hydraulic platform and halfway into the trailer, the tractor trailer, which was being operated by Wawanesa s insured, drove away from the docking bay which caused Orlando Tassone to fall to the asphalt below and sustain injuries. 9. The forklift that was being operated by Orlando Tassone had four wheels and a seat that was not designed to be straddled by the driver. The forklift was being borrowed by Campio Furniture and consequently at all material times the forklift was not driven on land occupied by the owner of the forklift.

3 3 APPLICABLE LEGISLATION Section 275 of the Insurance Act, R.S.O C.I.8 ( Insurance Act ) creates a scheme for loss transfer indemnity where any insurer who paid statutory accident benefits may, in certain circumstances, be repaid by another insurer. Section 9(2) of Ontario Regulation 664 ("O. Reg. 664") under the Insurance Act provides a first party insurer who insures an automobile with the right, in certain circumstances, to claim indemnification from a second party insurer who insures a heavy commercial vehicle. If the insurers are unable to agree with respect to indemnification under s.275 of the Insurance Act, the dispute shall be resolved through arbitration under the Arbitration Act, 1991, S.O. 1991, Chap.17. Indemnification under subsection 275(1) of the Insurance Act shall be made according to the respective degree of fault of each insurer s insured as determined under the Fault Determination Rules as set out in Ontario Regulation 668/90 under the Insurance Act ("Fault Determination Rules"). Ontario Regulation 668 Fault Determination Rules ( FDR ) made under the Insurance Act provides in s.2(1): An insurer shall determine the degree of fault of its insured for loss or damage arising directly or indirectly from the use or operation of an automobile in accordance with these rules. Section 1 of the Insurance Act defines automobile as follows: Automobile includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft; Pursuant to s.224(1) contained in Part VI of the Insurance Act, the part dealing with Automobile Insurance, an automobile is defined as follows: Automobile includes, (a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and (b) a vehicle prescribed by regulation to be an automobile Section 1(1) of the Compulsory Automobile Insurance Act, defines motor vehicle to have the same meaning as in the Highway Traffic Act, and to include trailers, accessories and equipment of a motor vehicle. Section 1(1) of the Highway Traffic Act, defines motor vehicle as: Motor vehicle includes an automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a streetcar or other motor vehicle running only upon

4 4 rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine; The Off-Road Vehicles Act, R.S.O. 1990, c.o.4, requires off-road vehicles in certain circumstances to be insured. The prescribed class of vehicles referred to in section 1 of the Off-Road Vehicles Act, R.S.O. 1990, c.o.4, is set out in section 3 of R.R.O. 1990, Regulation 863, as follows: 3. For the purposes of the definition of off-road vehicle in section 1 of the Act, the following classes of vehicles are prescribed:. 1.2 Vehicles designed for utility applications or uses on all terrains that have four or more wheels and a seat that is not designed to be straddled by the driver (emphasis added). ANALYSIS AND FINDINGS The argument advanced by the Respondent Wawanesa is that loss transfer is not available on the facts herein as the claimant was not operating an automobile at the time of the incident. According to Wawanesa, Section 275 of the Insurance Act provides that indemnification shall be made in accordance to the respective degree of fault of each insurer s insured as determined under the Fault Determination Rules and that Ontario Regulation 668 Fault Determination Rules ( FDR ) made under the Insurance Act provides in s. 2(1): An insurer shall determine the degree of fault of its insured for loss or damage arising directly or indirectly from the use or operation of an automobile in accordance with these rules. Wawanesa maintains that the FDR require insurers to assess the liability of their insureds while they are using or operating an automobile. Here, according to Wawanesa, Mr. Tassone was operating a forklift and not an automobile so the FDR s are not available to determine the liability issue required by loss transfer. For the moment I will leave aside the issue of whether the subject forklift was an automobile and deal with the issue of whether it was necessary for the claimant to have been operating an automobile for loss transfer to apply. IS IT NECESSARY FOR THE CLAIMANT TO HAVE BEEN OPERATING AN AUTOMOBILE FOR LOSS TRANSFER TO APPLY? On a careful analysis of the applicable legislation, I am satisfied that it is not necessary for the claimant to have been operating an automobile for loss transfer to apply. In my view all that is necessary for loss transfer to apply is that the damage to the claimant arises directly or indirectly from the use or operation of an automobile according to s.2(1) of Ontario

5 5 Regulation 668 as set out above. Here, the incident also involved a tractor trailer, which would meet the definition of automobile, so as to meet that requirement. If the position advanced by Wawanesa were accepted, then loss transfer would not be applicable to accidents involving pedestrians and heavy commercial vehicles yet we see that situation on a regular basis. In my view, all that is required for s. 275 to apply is that there be two insurers and not necessarily two motorists for there to be loss transfer entitlement. A similar finding was made in Co-operators General Insurance Company v. Axa Insurance Company (Arbitrator Kenneth J. Bialkowski - September 16, 2008). At pages 6 and 7 of that decision the arbitrator writes: In my view, Section 275 requires that there be two insurers and not necessarily two motorists for there to be loss transfer entitlement. When one looks carefully at the wording of Section 275, it is clear that it effectively states that the insurer paying statutory accident benefits for a certain class of person is entitled to indemnification from the insurer of such other class. Indemnification is to be made according to the respective degrees of fault of each of the insurers insured. There is nothing to suggest that each insured must be a motorist. AXA argues that the Fault Determination Rules only apply to situations involving two or more motorists. I find that the Fault Determination Rules also apply to insureds who are not motorists. Although the various diagrams depicting various collisions involve two or more motorists, the general provisions provide at Section 5 (1) that if the incident is not described, then the degree of fault of the insured shall be determined in accordance with the ordinary rules of negligence. In the present case with the facts that have been presented to me, the driver would bear 100% of the fault and the passenger 0% of the fault. Such approach would allow for a different finding if there was negligence on the part of the passenger as the cause for the accident itself. For example, if a passenger tugs the steering wheel in a heavy commercial vehicle being operated reasonably by the driver and a loss of control results causing injury, that passenger may be found 100% at fault with no loss transfer applicable. AXA has submitted that Section 2 (1) of the Fault Determination Rules is indicative of the fact that the degrees of fault to be determined must deal with the use or operation of two insured automobiles. The Section reads as follows: 2. (1) An insurer shall determine the degree of fault of its insured for loss or damage arising directly or indirectly from the use or operation of an automobile in accordance with these rules. Although the wording is awkward, I do not believe that it restricts the application of the Fault Determination Rules to accidents involving two or more vehicles. I am of the view that the awkwardness of the wording is only as a result of the fact that the Fault Determination Rules were introduced not only for use in loss transfer claims, but also for use to determine liability for Direct Compensation in property damage claims of insureds. Section 263 of the Insurance Act provides a right of an insured to essentially recover from his or her insurer property damage occasioned to his or her vehicle to the extent that the insured was not at fault for the collision. This Direct Compensation scheme was introduced as the right to sue for property damage had been taken away with the legislative changes. The occasional awkward wording of the Fault Determination Rules merely reflects its use in the Direct Compensation scheme while also being applicable for loss transfer fault allocation.

6 6 It is clear that allowing loss transfer claims in situations involving passengers, pedestrians and bicyclists might not always satisfy the attempt to redress financial imbalance caused by the expansion of accident benefit availability in In my view, the odd inequity cannot be avoided. On whole, I believe the loss transfer legislation significantly helps address the financial imbalance created by the expansion of accident benefit availability in 1990, but not in all cases. There are several Arbitration decisions commenting on how the overall scheme of loss transfer does result in the odd inequity. As stated in Jevco Insurance Co. v. York Fire & Casualty Co. (1996) O.J. 646 (C.A.), the purpose of the legislation is to spread the load among insurers in a gross and somewhat arbitrary fashion, favouring expedition and economy over finite exactitude. I am of the view that there is nothing in the language of the legislation or the Regulations to suggest that the right of the first party insurer is limited to claims involving multiple vehicle accidents. I am further of the view that if the legislators intended for the loss transfer provisions not to apply to passengers, pedestrians or bicyclists when struck by a heavy commercial vehicle, it would have been easy for them to state so specifically. That is not the case. Nowhere in the enabling legislation or regulations does it state that the loss transfer regime is inapplicable in single vehicle accidents where the claimants are passengers, pedestrians or bicyclists. In my view, the language of Section 275 is clear and unambiguous in providing for indemnity by the second party insurer according to the respective degrees of fault of each insured involved in the accident. In the case of injury to a pedestrian, bicyclist or passenger, liability is determined according to common law principles on the basis of Section 5 (1) of the Fault Determination Rules. A similar conclusion was reached by arbitrator The Honourable W. David Griffiths Q.C. in Allstate Insurance Company of Canada v. Old Republic Insurance Company May In that case, a passenger of a heavy commercial vehicle died when the heavy commercial vehicle was involved in a single vehicle accident. Allstate paid death and funeral benefits pursuant to a policy that insured the deceased s personal vehicle. Allstate commenced a loss transfer claim against Old Republic, who insured the heavy commercial vehicle. Old Republic defended on the basis that loss transfer requires a collision between a heavy commercial vehicle and at least one or more passenger vehicles. This position was rejected by the arbitrator, who noted that there is nothing in the language of the legislation or the regulations to suggest that loss transfer is limited to claims involving multiple vehicle accidents. Rather, section 275(2) of the Insurance Act refers to the fault of each insured without reference to the number of vehicles involved. Further, the arbitrator noted that if only multiple vehicle accidents could give rise to a loss transfer claim, loss transfer would be unavailable where a heavy commercial vehicle struck a pedestrian or bicyclist. The arbitrator felt that such a result would be contrary to the language of the legislation and would defeat the clearly expressed intention of loss transfer to shift the costs of accident benefits from the insurer of the non-commercial automobile to the insurer of the heavy commercial vehicles in accordance with fault.

7 7 I am satisfied that the subject incident involved an automobile (the tractor trailer) and it is not relevant whether the claimant was operating an automobile. Loss transfer is available in my view where it involves an automobile and a claimant who is a pedestrian, bicyclist or operator of a vehicle not encompassed by the definition of automobile. In the event that I am wrong in this analysis I will still deal with the issue as to whether the subject forklift was an automobile. WAS THE FORKLIFT AN AUTOMOBILE? As can be seen from the analysis which follows and at risk of oversimplification, the crucial issue for determination is whether the forklift was a motor vehicle required under any Act to be insured under a motor vehicle policy. Wawanesa relies on a long line of cases dealing with this issue where various vehicles were found not to be automobiles whereas Aviva relies on a more recent FSCO arbitration decision which relied on the definition of off-road vehicle in the Off-Road Vehicles Act. R.S.O. 1990, c.o.4, to argue that the forklift was an automobile. According to Wawanesa a forklift is an industrial vehicle intended for use in warehouses to move pallets of material in an efficient manner. These machines are also used to load and unload boxcars and trailers, but they are not typically used nor designed for use as all-terrain vehicles. Wawanesa has referred me to the decision of Justice Pitt in Pinto v. Allstate (2002) O.J. 2741, where it was decided that a forklift was not an automobile within the meaning of the Statutory Accident Benefits Schedule. The reported decision provides no analysis other than to say that the decisions in Regele, Morton and Copley (which will be dealt with in detail below) were dispositive of the issue. Wawanesa proposes that to determine if a vehicle is an automobile for the purpose of s. 275 of the Insurance Act, one must begin with the Insurance Act, R.S.O. 1990, c.i.8, s.1 travel through the Compulsory Automobile Insurance Act, R.S.O. 1990, c. 25 and proceed to the Highway Traffic Act, R.S.O. 1990, c.h.8, s.1(1). Section 1 of the Insurance Act defines automobile as follows: Automobile includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft; Pursuant to s.224(1) contained in Part VI of the Insurance Act, an automobile is defined as follows: Automobile includes, (a) a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and (b) a vehicle prescribed by regulation to be an automobile.

8 8 The Ontario Court of Appeal in Regele v. Slusarczyk (1977) O.J. No 1849, held that s.224(1) is the statutory provision essential to the determination of the issue as to whether a motor vehicle is an automobile. A reasonable interpretation of the language in s.224(1) leads one to the conclusion that a motor vehicle required under any Act to be insured under a Motor Vehicle (not automobile ) Liability Policy is an automobile. In other words, motor vehicles that are not, in ordinary parlance automobiles, are automobiles if they are motor vehicles required to be insured under a motor vehicle liability policy. Section 1(1) of the Compulsory Automobile Insurance Act, defines motor vehicle to have the same meaning as in the Highway Traffic Act, and to include trailers, accessories and equipment of a motor vehicle. Section 1(1) of the Highway Traffic Act, defines motor vehicle as: Motor vehicle includes an automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a streetcar or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine; According to Wawanesa, the Ontario Court of Appeal in Regele v. Slusarczyk (supra) established a two part test to be followed in determining what constitutes an automobile for the purpose of Part VI of the Insurance Act the part dealing with Automobile Insurance. The first step is to determine if the vehicle is something which would be considered to be an automobile in ordinary parlance. If the answer to the inquiry is in the affirmative, then the Court does not have to go any further. However, if the answer is negative, then the Court has to go further and consider whether or not the vehicle in question is a motor vehicle required under any Act to be insured under a motor vehicle liability policy. The Ontario Court of Appeal in Regele (supra) considered the question of whether certain vehicles were automobiles within the meaning of s.224(1) of the Insurance Act as opposed to the definition in s.1 of the Act. In four cases, which I will deal with in the paragraphs to follow, this approach was used to determine if a vehicle was an automobile. In Regele and the four cases which followed, the Court determined that the following vehicles were not automobiles : a flatbed trailer used to haul tomatoes ( tomato wagon ), a farm tractor, a backhoe, a snowmobile and a racecar. In Copley v. Kerr Farms Ltd. (2002) O.J. No.1644, the Plaintiff was injured while attempting to connect a tomato wagon to a transport truck, in order to transport tomatoes from a field to a processing plant. The issue turned on whether or not the tomato wagon fell within the definition of automobile in the Compulsory Automobile Insurance Act, which includes trailers and accessories and equipment of a motor vehicle. Although the Court concluded that the tomato wagon was indeed a trailer, the Court determined that the phrase of a motor vehicle meant only trailers attached to and under the power of a motor vehicle could properly fit the definition. Because the tomato wagon was not attached to a motor vehicle when the accident occurred, the Court found that it was not an automobile within that Statute. In Regele v. Slusarczyk (supra) the Court held that a farm tractor was not an automobile within the meaning of Part VI of the Insurance Act because s.224(1) incorporates the Highway Traffic Act definition of motor vehicle which expressly excludes a farm tractor.

9 9 The Court stated that when a word is not exhaustively defined, its usual meaning is conserved. The non-exhaustive definition merely clarifies or extends the ordinary meaning. The Court held that in order to determine if a vehicle is an automobile, s.224(1) of the Insurance Act as well as the Highway Traffic Act and the Compulsory Automobile Insurance Act must be examined. In Morton v. Rabito (1998) O.J. No.5129, the Court, relying on Regele (supra), held that a backhoe does not fall within the definition of automobile either in ordinary parlance or within some enlarged definition of that term found in the insurance policy. There was no relevant distinction between a farm tractor and a backhoe and therefore, a backhoe was not an automobile within s.224(1) of the Insurance Act. In Fortin v. Laplante (2000) O.J. No. 414, the Court concluded that a snowmobile was not an automobile within s.224(1) of the Insurance Act because the Highway Traffic Act definition of motor vehicle expressly excludes a motorized snow vehicle. In Grummett v. Federation (1999) O.J. No. 4854, the Ontario Superior Court had to decide whether a racecar was an automobile. The Plaintiff, a named insured under a standard motor vehicle liability policy, was injured while at a racetrack. A wheel came off of a racecar as a result of a collision. The Court found that the racecar was not, in ordinary parlance, an automobile, paying special attention to the differences between the function and purpose of a racecar compared to those of an automobile. As a result, the Court went on to conclude that there was nothing in s.224(1) of the Insurance Act or the subject insurance policy that would be broad enough to include the racecar in the definition of automobile. The Grummett case suggested the design, function and purpose of the vehicle are essential to the determination of whether a vehicle is an automobile. On the basis of the cases aforesaid, Wawanesa claims that the subject forklift was not an automobile. Aviva maintains that the forklift was an automobile on the basis of a recent FSCO arbitration decision Beattie v. Unifund (2014 FSCO Arbitrarion Decision) which used the Off- Road Vehicles Act R.S.O. 1990, c.o.4, as the basis for expanding the definition of automobile to include a boom crane. Aviva maintains that applying a similar analysis results in a forklift being considered an automobile. Wawanesa maintains that this decision is distinguishable. In Beattie, the applicant was standing on a stationary Genie Boom Crane at ground level in a parking lot when a parking structure collapsed causing him injury. Arbitrator Kelly had to determine whether the boom crane was an automobile within the meaning of the SABS at the time of the incident. Arbitrator Kelly cited the Court of Appeal decision of Adams v. Pineland Amusements Ltd. (1997) 88 O.R. (3d) 321, that held that an automobile includes a motor vehicle that falls within any enlarged definition of automobile in any relevant statute. Arbitrator Kelly ruled that the boom crane was an automobile because it met the definition of off road vehicle as set out in the Off-Road Vehicles Act R.S.O. 1990, c.o.4 and it was required to be insured under the said Act. Consequently, since the boom crane was required to be insured, it met the definition of automobile set out in s.224 of the Insurance Act.

10 10 As noted by Arbitrator Kelly at paragraph 17 of the decision, section 224(1) of the Insurance Act defines automobile to include a motor vehicle required by any Act to be insured under a motor vehicle liability policy. As noted by Arbitrator Kelly, an off road vehicle is defined in section 1 of the Off-Road Vehicles Act to include a vehicle propelled or driven otherwise than by muscular power on more than three wheels and being of a prescribed class of vehicle. The prescribed class of vehicles referred to in section 1 of the Off-Road Vehicles Act is set out in section 3 of R.R.O. 1990, Regulation 863, as follows: 3. For the purposes of the definition of off-road vehicle in section 1 of the Act, the following classes of vehicles are prescribed:. 1.2 Vehicles designed for utility applications or uses on all terrains that have four or more wheels and a seat that is not designed to be straddled by the driver (emphasis added). Arbitrator Kelly noted that the regulation did not require that the vehicle [described in 3(1.2)] be designed for recreational. Rather, it had to be for utility applications. Given that utility was not defined in the Off-Road Vehicles Act, Arbitrator Kelly adopted the Webster s dictionary definition, namely the capacity for being useful for some purpose. As the term utility application fits the normal working function of the boom crane, Arbitrator Kelly concluded that it was an off road vehicle and since used at locations no occupied by the owner of the vehicle was required by the Act to be insured. Aviva takes the position that a forklift has the capacity for being useful for some purpose and would easily satisfy the utility application requirement. In addition, as set out in paragraph 9 of the Agreed Statement of Facts, the forklift also had four wheels and a seat that was not designed to be straddled by the driver. Consequently, the forklift was an off-road vehicle within the meaning of the Off-Road Vehicles Act according to Aviva. Section 15(1) of the Off-Road Vehicles Act prohibits the driving of an off-road vehicle unless it is insured under a motor vehicle liability policy. However, section 15(9) allows for an exemption if the vehicle is driven on land occupied by the owner of the vehicle. As set out in paragraphs 5 and 9 of the Agreed Statement of Facts, the forklift was not being used on land that was occupied by the owner of the forklift. Consequently, the forklift according to Aviva was required to be insured under section 15 of the Off-Road Vehicles Act. Given that the forklift was required to be insured, it met the definition of automobile under section 224 of the Insurance Act according to Aviva. Wawanesa disagrees with the application of the Beattie decision to the present fact situation. According to Wawanesa, the Off-Road Vehicles Act is intended to protect the public from mischief including injuries and other risks associated with the operation of motorized vehicles on private and public lands which are not streets or highways. Off-road vehicles are rather illdefined in the Act and the accompanying Regulations, and there is nothing within these which would capture the forklift being operated by Mr. Tassone at the time of the accident.

11 11 Wawanesa has submitted that there are significant factual distinctions between the Genie Lift Truck being operated by Mr. Beattie and the forklift being operated by Mr. Tassone. Firstly, at page 9 of the Beattie decision, the arbitrator makes the following comment: It is uncontested that the Genie had four wheels, and operated on all-terrains. Wawanesa maintains that the forklift was not operated on all terrains and Aviva has conceded this fact. It was submitted by Wawanesa that a Genie boom crane is designed for outdoor use and indeed, it was used outdoors in the context of the Beattie decision. There is no evidence before me that the forklift was used outdoors. In addition, the Genie Lift Truck was also used to travel on highways as was found by the arbitrator in the Beattie decision. Wawanesa maintains that the forklift was not designed for travel on highways nor is there evidence before me that the subject forklift was used on highways rather than on private property as was the case here. In many respects the Beattie case is factually distinguishable. Regardless of these distinctions, on careful analysis of the Off-Road Vehicles Act R.S.O. 1990, c.o.4 as a whole, I am of the view that it was not the intention of the legislators for it to apply to vehicles such as forklifts being used in an industrial setting. As a result, the Act in my view cannot be used to expand the definition of automobile for the purposes accident benefit entitlement or loss transfer purposes. A reading of the Act as a whole clearly leads to this conclusion. Firstly, the title of the Act itself conjures thoughts of ATV s or similar vehicles. The Act refers to conservation officers, the Fish and Wildlife Conservation Act and the Provincial Parks and Conservation Reserve Act. What would they have to do with a forklift in an industrial setting? This should give some idea as to what the Act was designed to cover. Most importantly, s.19 of the Act requires the operator of an off-road vehicle to wear a helmet. I have never seen a forklift operator wearing a helmet or having heard of some forklift operator being charged for not wearing a helmet. Section 4(1) of the Act prohibits an owner from allowing a child under the age of twelve to drive the vehicle. This cannot be said to applicable to a forklift truck. At section 20, the operator of the off-road vehicle is deemed to have willingly assumed all risks when entering another s premises. In my view, a careful reading of the Off-Road Vehicles Act R.S.O. 1990, c.o.4 as a whole, leads to the inescapable conclusion that it was not intended to govern a forklift in an industrial setting and cannot be used to expand the definition of automobile for the purposes of accident benefit entitlement or loss transfer purposes. The Ontario Court of Appeal decision of Adams v. Pineland Amusements Ltd. (1997) 88 O.R. (3d) 321, held that an automobile includes a motor vehicle that falls within any enlarged definition of automobile in any relevant statute. Given the facts before me I do not believe the Off-Road Vehicles Act R.S.O. 1990, c.o.4 is a relevant statute. In the final analysis, I am satisfied that the jurisprudence referred to me by Wawanesa, as outlined above, results in a finding that the forklift, on the agreed facts herein, was not an automobile and that the law as set out in Regele, Copley, Morton, Fortin and Grummett (all supra) must be applied. I am specifically bound by the 2002 judicial precedent in Pinto (supra) where it was held that a forklift was not an automobile. I therefore find that the subject forklift was not an automobile. However, since the subject incident involved an automobile, namely the tractor trailer which pulled away from the loading dock, the claimant was entitled to statutory accident benefits leaving the issue as to which insurer stands in priority for payment of those statutory accident benefits.

12 12 Given my finding that it was not necessary for the claimant to have been operating an automobile for loss transfer to apply, I must conclude that I have jurisdiction to deal with this loss transfer dispute. ORDER I hereby order that the loss transfer dispute proceed on the merits. I order that Wawanesa pay the costs of Aviva with respect to the preliminary issue on a partial indemnity basis. I order that Wawanesa pay the costs of the Arbitrator with respect to the arbitration of this preliminary jurisdictional issue. DATED at TORONTO this 21st ) day of September, ) KENNETH J. BIALKOWSKI Arbitrator