The Dominion of Canada General Insurance Company v Aviva Canada Inc. et al., 2015 ONSC 6195 – This is an appeal to the Ontario Superior Court of Justice following a loss transfer arbitration.

The matter arises out of a motor vehicle accident that occurred when a vehicle was struck by ice and snow from a snow plow passing on the overpass above him, causing injury to the driver of the vehicle. The insurers of the parties proceeded by way of arbitration to determine the loss transfer issue. At the time, the Arbitrator found that a snow plow was a “commercial vehicle” as defined in Regulation 664 of the Insurance Act (the “Act”) and subject to the loss transfer provisions of the Act. Zurich Insurance Company Limited (the “Appellant”), appealed the decision.

Under Regulation 664, a “commercial vehicle” is defined as meaning “an automobile used primarily to transport materials, goods, tools or equipment in connection with the insured’s occupation, and includes a police department vehicle, a fire department vehicle, a driver training vehicle, a vehicle designated specifically for construction or maintenance purposes, a vehicle rented for 30 days or less, or a trailer intended for use with the commercial vehicle.

The issue on appeal was whether the Arbitrator correctly determined that the snow plow in question was a “commercial vehicle” under Regulation 664.

The Appellant argued that the definition of “commercial vehicle” is inclusive, such that the vehicle must be found to be “an automobile used primarily to transport materials, goods, tools or equipment in connection with the insured’s occupation” for the purposes of the loss transfer provisions.

The Court held that the Arbitrator applied the correct interpretation of the Regulation. More specifically, Brown J. stated that in considering the definition, the Arbitrator appropriately found that the snow plow was an automobile but was not “used primarily to transport materials, goods, tools or equipment.” She then correctly proceeded to consider whether it fell within the list of the vehicles that followed the words “and includes” in the Regulation. She found that said list broadened the meaning of the provision to include vehicles which would not otherwise have been caught by the definition. The Court agreed with the Arbitrator that in adding the list after the words “and includes,” the legislature extended the vehicle coverage to include vehicles not covered under the former definition contained in the Regulations of the Act.

The Court ultimately held that the Arbitrator properly considered the loss transfer scheme and that her interpretation of the statute was correct and did not require the intervention of the Court. Accordingly, the Court dismissed the appeal and awarded $5,000.00 in costs to the Respondent.

What the Insurer Should Know

For the purposes of a loss transfer, a snow plow is considered an commercial vehicle and as such, subject to loss transfer in the Insurance Act.

Mitch Kitagawa	Jennifer Therrien