A Tomato Wagon? Defining 'Automobiles' Under Ontario's Insurance Legislation

To the uninitiated, it might seem that defining the word "automobile" ... should be a relatively simple matter. Those familiar with the byzantine nature of insurance legislation know better.

- Justice Doherty, speaking for the Court of Appeal for Ontario in Copley v. Kerr Farms Ltd.1

To be entitled to statutory accident benefits under Ontario's no-fault legislation, also known as the SABS,2 the individual seeking benefits must have been involved in an accident. An accident, under section 3(1) of the SABS, is defined as:

an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

This seemingly simple definition is actually extraordinarily complex. For example, what constitutes use or operation of an automobile?; what qualifies as an impairment?; what does it mean for an impairment to be directly caused (which in turn begs the question of what it means for an impairment to be indirectly caused)? Each of these legal terms has generated their own body of case law, both before the Financial Services Commission of Ontario and before the civil court system.

This paper will deal with what could be considered the precursor to all of these questions: what is an automobile? While often the answer is so obvious that this question does not arise, decision-makers have struggled with how far the definition could stretch ever since the implementation of no-fault benefits in Ontario.

Qualifying a Vehicle as an Automobile: An Overview

The SABS was created by the provincial Cabinet pursuant to the Insurance Act.3 While automobiles are not defined under the SABS itself, Part VI of the Insurance Act (entitled "Automobile Insurance") contains a definition within section 224(1):

224. (1) In this Part,

"automobile" includes,

a motor vehicle required under any Act to be insured under a motor vehicle liability policy, and a vehicle prescribed by regulation to be an automobile ...4 Justice Doherty looked at this section in Copley v. Kerr Farms Ltd.5 He noted that because the Legislature had chosen to use the word includes rather than means, the Legislature was sending a signal to the courts that the section was meant to expand the ordinary definition of automobiles.6

Since there is no statute that provides a definition of an automobile, that definition defaults to the common law. The common law three-part test for determining if a vehicle is an automobile under section 224 was set out in the Ontario Superior Court of Justice decision of Grummet v. Federation Insurance Co.:

Is the vehicle an "automobile" in the ordinary parlance? If not, Is the vehicle defined as an "automobile" in the wording of the insurance policy? If not, Does the vehicle fall within any enlarged definition of "automobile" in any relevant statute?7 The Court of Appeal for Ontario recently upheld the use of this three-part test in its 2007 decision of Adams v. Pineland Amusements Ltd.8 Since this decision, the test has been referred to as the Adams test by the Court.9

Step 1: The Ordinary Parlance Test

The first step of the Adams test is known as the ordinary parlance test. That is to say, "it must be determined whether the vehicle in issue is an automobile within the ordinary sense of the word".10 Justice Somers in Grummett adopted the reasoning of Justice McCart in McFarland v. Storm,11 in that an automobile, in its ordinary sense, is a vehicle designed for and capable of transportation of passengers on streets and highways.12

Generally there is little case law that addresses this stage in-depth. The reason is that an automobile, in the ordinary sense of the word, is a restricted term that typically refers to passenger vehicles seen on highways. For example, a truck would obviously be considered an automobile in ordinary parlance.13

Justice Somers in Grummett accepted that a race car was not in ordinary parlance an automobile, due to the fact that "they do not have brake lights, they do not have doors and they carry no passenger except the driver".14 Mr. Grummett was eventually...