Court of Appeal confirms “car surfing” is within the ordinary and well-known uses of a vehicle giving rise to accident benefits coverage.
Date Heard: September 25, 2018 | Full Decision [PDF]
Intact Insurance Company appealed the Order of Adjudicator Nicole Treksler of the Ontario Licence Appeal Tribunal who held that Ms. Iris Charbonneau was involved in an accident under s.3(1) of the Statutory Accident Benefits Schedule.
Ms. Charbonneau was seriously injured after standing on the rear bumper of a vehicle in motion. She had one hand on the roof rack and another on a friend’s shoulder who was also standing on the bumper of the moving vehicle. Another friend was recording the event. The driver of the vehicle made a sharp turn causing Ms. Charbonneau to fall and hit her head on the concrete.
The dispute between the parties on appeal involved the “purpose” branch of the two-part test used to determine if Ms. Charbonneau was involved in an “accident.” The Court of Appeal confirmed that the purpose test was designed to exclude a person from receiving accident benefits where a vehicle is being used for abnormal and aberrant purposes disassociated from the normal purposes of a vehicle which are to transport people and things. The Court of Appeal went on to say:
“[13] Intact submitted that the purpose test is designed to ensure that no fault benefits are confined or restricted to accidents or to motorists and others who are making an ordinary and well-known use of the vehicles. In the immediate case, Intact’s submission is self-defeating because the Adjudicator had material before her to suggest that car surfing is a commonplace enough activity that the legislature has thought fit to criminalize it as an offence under s. 178 of the Highway Traffic Act, which prohibits “attaching oneself to a vehicle”. Car surfing or attaching oneself to a vehicle, while reckless and dangerous, is not a more abnormal use of a vehicle than the other reckless and dangerous uses of a vehicle such as texting while driving.
“[14] In our opinion, while reckless and foolish, Ms. Charbonneau was using the vehicle for its normal purpose of transportation and there was an accident in which the Adjudicator correctly determined there was Statutory Accident Benefits.
Accordingly, the appeal was dismissed.
Read the full decision [PDF]
