Benson v. Belair Insurance Company Inc., 2019 ONCA 840

• James Page


• 3 Jan 2020

Full Decision

Benson v. Belair Insurance Company Inc. was a decision of the Ontario Court of Appeal. This was actually two appeals heard together involving two separate accidents and different parties but with a common important issue.

In the Benson matter, Austin Benson was a resident of Ontario living in British Columbia. Benson was a passenger in an ATV that was owned and driven by a B.C. resident on a public trail in B.C. Benson fell off the ATV and suffered catastrophic injuries. Benson was the named insured under an Ontario insurance policy. But the ATV was not a listed insured vehicle.

In the Perneroski matter, Christopher Perneroski, a resident of Ontario, suffered a brain injury while riding his dirt bike on a closed track in Georgia, USA. He owned the bike. Like Benson, Perneroski had his own auto insurance policy. However, the dirt bike was not a listed vehicle in the policy.

Both Benson and Perneroski applied for accident benefits. Both insurers denied coverage on the basis that the vehicles were not “automobiles”. Benson applied to FSCO for arbitration on the issue. FSCO upheld the denial. Benson appealed to the Director’s Delegate and then moved for judicial review to Divisional Court. His appeals were dismissed both times. Perneroski brought a motion seeking a declaration of coverage. The motions judge found there was coverage, contrary to the rulings in the Benson matter.

One case involved the SABS Regulation 403/95 and the other involved SABS Regulation 34/10. In both instances, the Court of Appeal found that coverage would exist if the accidents happened in Ontario. The basis for the ruling was as follows:

• An “insured person” under the SABS includes a named insured or specified driver who is involved in an accident in or outside Ontario involving the insured automobile or another automobile
• Section 2(3) of the SABS Regulation 34/10 and section 3(2) of the SABS Regulation 403/96 provided that benefits shall be provided in respect of accidents that occur in Canada or the USA
• “Accident” under the SABS means an incident in which the use or operation of an automobile directly causes an impairment
• Adams v. Pineland Amusements Ltd., 2007 ONCA 844 ruled there were three ways to determine if a vehicle was an “automobile”. The third way was if the vehicle fell with an enlarged definition of automobile in a relevant statute.
• Section 224(1) of the Insurance Act defines automobile to include a motor vehicle required under any Act to be insured under a motor vehicle liability policy. The ATV and the dirt bike were both motor vehicles.
• It was agreed by all parties that the ATV and the dirt bike off-road vehicles as defined by the Off-Road Vehicles Act (“ORVA”)
• An off-road vehicle cannot be driven without insurance unless it is driven on land occupied by the owner of the vehicle (ORVA, s. 15), or if it is driven in a sponsored closed course competition or rally (ORVA Regulation, s. 2(1) 5.).
• In neither case was the off-road vehicle being driven on land occupied by the owner of the vehicle or in a sponsored rally or competition.

Under the circumstances, the ATV and the dirt bike were “motor vehicles” and they were also “automobiles” pursuant to the Adams decision and the Insurance Act when read together with the Off-Road Vehicles Act. Benson and Perneroski were therefore in “insured persons” involved in “accidents” as defined by the SABS, and entitled to claim benefits pursuant to the SABS. Both parties acknowledged this to be true if the accident happened in Ontario.

The issue in dispute was if Ontario law applied. The Off-Road Vehicles Act is not enforceable outside of Ontario and neither the ATV nor the dirt bike was required to be insured in B.C. or Georgia respectively. If the Off-Road Vehicles Act did not apply, neither vehicle was required to be insured, which meant that neither vehicle was an “automobile” under the Insurance Act, which also meant neither Benson nor Perneroski was an “insured person” involved in an “accident”. Therefore they would not be entitled to SABS benefits.

The Court of Appeal held that Ontario law governs. Section 224(1) of the Insurance Act defines automobile to include a motor vehicle required under any Act to be insured. Section 87 of the Legislation Act, states that the words “Act” means an Act of the Ontario Legislature. Therefore, it is an error to look to the statute of any jurisdiction outside of Ontario to see if that jurisdiction requires insurance. Ontario legislation requires the ATV and dirt bike to be insured, making them both automobiles entitling Benson and Perneroski to claim benefits. That ends the analysis.

This interpretation, the Court of Appeal reasoned, is consistent with the wording of the SABS which states that (a) “insured persons” are named insureds involved in accidents inside or outside Ontario with the insured automobile or another automobile; and (b) benefits will be provided whether the incident occurs in Canada or the USA. Coverage therefore should not depend on if the accident happened in Ontario or elsewhere in Canada or in the U.S. Coverage should also not depend on the automobile being a listed vehicle under an auto policy.