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Repairing a vehicle is not an ordinary use
to which vehicles are put

Michael Kennedy
Michael Kennedy

October 2011

By Michael Kennedy, Partner
Published in McCague Borlack's Transportation Newsletter

The issue in Olesiuk and Kingsway General Insurance Company, FSCO A10-002609, was whether the claimant was involved in an accident as defined by the Statutory Accident Benefits Schedule (SABS), namely whether he was involved in “an incident in which the use or operation of an automobile directly causes an impairment”. In his decision, Arbitrator Feldman held that “repairing a vehicle, in general, will not constitute a use of the vehicle”.

The facts were that the claimant was hired to effect body work repairs to a truck that he normally operated. The claimant's last memory was standing on the hood of the truck. He was found the next morning in a pool of blood and awoke in the hospital a few days later. He had sustained serious fractures and a brain injury. Arbitrator Feldman inferred from the evidence that the claimant had fallen from the truck while attempting to effect repairs to the roof.

Pursuant to the Supreme Court of Canada's decision in Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405, the accident (to qualify as an accident) must have resulted from an ordinary and well-known activity to which automobiles are put (the “Purpose Test”) and the claimant's injuries must have been directly caused by the ownership, use or operation of the vehicle (the “Causation Test”).

Arbitrator Feldman reasoned that vehicles can be used to transport people and things, to store goods, to tow other vehicles and sometimes to provide a temporary place to sleep. While the types of uses to which vehicles may be put will no doubt expand as vehicles and technologies change, Arbitrator Feldman ruled that one is not actually using a vehicle while effecting repairs (“repairing a vehicle is something that is done to an automobile, not an activity to which automobiles are put”). Arbitrator Feldman further held that simply standing on a vehicle did not mean the claimant was using it.

The claimant's application for benefits was therefore dismissed, as he was not involved in an accident as defined by the Schedule.

While Arbitrator Feldman decided against the claimant in this particular case, it is important to note that the arbitrator stated in obiter that a claimant injured while effecting repairs could nevertheless have been involved in an accident if those repairs flowed uninterrupted from the use or operation of a vehicle. For example, if a motorist gets a flat tire while driving and is injured while changing the tire, this would likely qualify as an accident even though he was effecting repairs at the exact time of injury.

Each case must therefore be examined on its specific set of facts in order to determine whether it is an accident pursuant to the Schedule.


 

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