FSCO Director's Delegate Feldman has reversed an arbitration decision and has found that a child who fell off a parked fire truck at a birthday party was involved in an "accident".
In Carr v. TD, the incident involved a stationary fire truck, which was parked at a private residence for a child's birthday party. Children were allowed to access the fire truck for entertainment and educational purposes. A child fell down the stairs of the fire truck, striking her head on the asphalt. The hearing arbitrator determined that this did not constitute an "accident".
In Amos v. Insurance Corp. of British Columbia (1995), the Supreme Court of Canada established two elements a claimant must be satisfy for an incident involving a motor vehicle to be considered to be an “accident” within the meaning of automobile insurance:
- It must be proven that the incident resulted from the ordinary and well-known activities to which motor vehicles are put (the “purpose test”); and
- It must be proven that there is a direct causal relationship between the insured person’s impairments and the use or operation of the vehicle in question (the “chain of causation test” or, simply, the “causation test.”)
The Ontario Court of Appeal has since modified the causation test for statutory accident benefits claims in Ontario, to take into account the requirement of "direct" causation of the impairment. However, the purpose test set out in Amos is still the first hurdle a claimant must satisfy to receive coverage.
The main issue in Carr was whether the child's use of the fire truck was “an ordinary and well-known activity to which motor vehicles are put”. Delegate Feldman emphasized that the “use” to which a vehicle is being put at the time of an accident “must simply be a well-known, ordinary use for that particular vehicle”. Delegate Feldman also referenced the recent ONCA decision of Economical Mutual Insurance Company v. Caughy in support of the point that a vehicle need not be active/moving to be considered “operational”. The ONCA decided in that case that “parking a vehicle is an ordinary and well-known activity to which vehicles are put.”
Ultimately, Delegate Feldman found the child's activity on the fire truck was an ordinary and well-known use of that particular vehicle. Therefore, an “accident” had occurred.
Delegate Feldman distinguished between cases where a vehicle was in a museum, "disabled", or being used for some non-vehicle purpose (e.g. propping up a shed.). In this case, the vehicle was a functioning fire truck that was temporarily parked.
This decision reinforces the importance of considering the well-known and ordinary use for the particular vehicle in question at the time of the incident.