In a recent decision, Beattie and Unifund Assurance Company, [FSCO A13-005289], Arbitrator Kelly considered whether a "Genie Boom Crane" was an automobile under the Statutory Accident Benefits Schedule ("SABS").
The accident happened on July 8, 2010 when the applicant was operating a "Genie S65 Boom Lift" - a four-wheeled mobile crane propelled by its own motor. The purpose of the Genie was to elevate the Claimant to enable him to perform a maintenance function with respect to a building. He was operating the Genie in a private parking lot. While he was working, the ground level of the parking lot collapsed. The Claimant suffered injuries.
There was no dispute that the accident occurred on private property. The only issue was whether, at the time and place of the incident, the Genie was an automobile within the meaning of section 1(1) of the SABS.
In order to be successful, the Claimant had to establish that, at the time and place when and where the incident took place, the Genie was (a) a motor vehicle or an off-road vehicle and (b) was legally required to be insured under a motor vehicle liability policy (either pursuant to the Compulsory Automobile Insurance Act or pursuant to the Off-Road Vehicles Act).
In answering the question, Arbitrator Kelly considered the Court of Appeal's decision in Adams v. Pineland Amusement Ltd., which confirmed the three-part test as follows:
- Is the vehicle an "automobile" in ordinary parlance?
- If not, is the vehicle defined as an "automobile" within the wording of the insurance policy?
- If not, does the vehicle fall within any enlarged definition of "automobile" in any relevant statute?
On the evidence, Arbitrator Kelly found that the Genie failed on the first two tests. In considering the third test, the Arbitrator was satisfied that in accordance with the Highway Traffic Act and therefore in accordance with the Compulsory Automobile Insurance Act, the Genie was at all material times a motor vehicle as it was propelled otherwise than by muscular power and was not excluded by the exceptions set out in the Highway Traffic Act. It was noted that the Insurance Act did not define motor vehicle.
Arbitrator Kelly was satisfied that the Genie was at the material time and place an off-road vehicle. As it was not operated on a highway and was not owned by the owner of the parking lot, it required liability insurance at the material time. Accordingly, the Genie was found to be an automobile pursuant section 224 of the Insurance Act for the purposes of section 2(1) of the SABS.
This decision serves as another example of the expansive definition given to the meaning of "automobile" in the context of the SABS.
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