IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. I. 8, as amended AND IN THE MATTER OF THE ARBITRATION ACT, S.O. 1991, c.

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1 IN THE MATTER OF THE INSURANCE ACT, R.S.O. 1990, c. I. 8, as amended AND IN THE MATTER OF THE ARBITRATION ACT, S.O. 1991, c.17, as amended AND IN THE MATTER OF AN ARBITRATION B E T W E E N : ALLSTATE INSURANCE COMPANY OF CANADA Applicant - and - GORE MUTUAL INSURANCE COMPANY and THE MOTOR VEHICLE ACCIDENT CLAIMS FUND Respondents DECISION COUNSEL Daniel Strigberger - Strigberger, Brown, Armstrong LLP Counsel for the Applicant, Allstate Insurance Company of Canada (hereinafter referred to as Allstate ) Arthur Robert Camporese Camporese, Sullivan, Di Gregorio Counsel for the Respondent, Gore Mutual Insurance Company (hereinafter referred to as Gore ) John Friendly Financial Services Commission of Ontario Counsel for the Respondent, The Motor Vehicle Accident Claims Fund (hereinafter referred to as the Fund ) ISSUE INVOLVED IN THE INCIDENT [1] In the context of a priority dispute pursuant to s.268 of the Insurance Act, R.S.O. 1990, c. I.8 and Ontario Regulation 283/95, the issue before me is to determine which insurer stands in priority to pay statutory accident benefits to or on behalf of the claimants, Christopher Ugilini (deceased) and Lindsay Lance, with respect to personal injuries sustained in a snowmobile accident which occurred on December 26, The ultimate finding depends on a determination as to whether the snowmobile insured by Gore was a vehicle involved in the incident.

2 2 [2] By way of background, the accident benefits claims of the two claimants were first presented to Allstate on the basis that the claimants were dependent on Allstate s insureds. During the arbitration process, the dependency issue was resolved with the parties agreeing that the claimants were not dependent on Allstate s insureds, leaving the involved in the incident issue as being determinative as to whether Gore or the Fund stands in priority. The parties have agreed that Gore will be the priority insurer if found that the snowmobile insured by them was a vehicle involved in the incident of December 26, Otherwise, the Fund would be the priority insurer with respect to the two claimants. PROCEEDINGS [3] The arbitration hearing proceeded in Toronto on May 30, FACTS [4] This matter arises as a result of a series of events that occurred on December 26, 2013, wherein two snowmobiles travelling one behind the other, operated by Christopher Ugulini and Casey Ugulini respectively, collided with a fallen tree on a trail in Thorold, Ontario. Lindsay Lance was a passenger on the snowmobile being operated by Christopher Ugulini. As a result of these collisions, Christopher and Casey Ugulini were pronounced dead at the scene. Lindsay Lance sustained personal injuries. [5] The lead snowmobile owned and operated by Christopher Ugulini, on which Lindsay Lance was a passenger, was not insured on the date of loss. The trailing snowmobile owned and operated by Casey Ugulini was insured by the Respondent Gore. [6] As I have indicated, if it is found that the snowmobile insured by Gore was involved in the incident, then Gore would stand in priority. If not, then the Fund would stand in priority. The facts case law analysis which follow must therefore be viewed with such issue in mind. The facts outlined for the most part find their origin in a Motor Vehicle Accident Report and an Accident Reconstruction Report prepared by the police. [7] On December 26, 2013, at 5:52 p.m., the police were dispatched to the area of Beaverdams Road and Ormond Street South in Thorold, Ontario, as a result of a reported collision that occurred on the Welland Canals Parkway Trail, herein referred to as the trail, in Thorold, Ontario. At 6:04 p.m., the police discovered the bodies of Casey Ugulini, Christopher Ugulini, and Lindsay Lance on the trail. Two snowmobiles were found resting nearby. [8] Casey Ugulini was the owner and operator of a 1999 Ski-Doo Formula Z hereinafter referred to as Casey s Snowmobile. Christopher Ugulini was the owner and operator a 2003 Yamaha SX snowmobile hereinafter referred to as Christopher s Snowmobile. These were the two snowmobiles found at the scene. Ms. Lance advised that she had been

3 3 travelling on the back of Christopher s snowmobile which was the lead snowmobile. [9] Both Casey Ugulini and Christopher Ugulini succumbed to their injuries and were pronounced dead at the scene of the accident. Lindsay Lance was rushed to hospital where she was treated for personal injuries. [10] The police were able to obtain video surveillance from the St. Lawrence Seaway Authority, owners of the trail, from the night of December 26, This video surveillance shows both Casey and Christopher s Snowmobiles travelling south on the trail, with their headlights and taillights activated, at approximately 5:26 p.m. on their approach to the point of collision. The snowmobiles were following each other in line at a distance of approximately 10 metres. The approximate speed of the snowmobiles was calculated to be 59km/hour. The actual impact with the tree was not caught on the surveillance video as it was blocked by a thicket of trees. [11] The police surveillance and reconstruction confirmed that Christopher Ugulini and Lindsay Lance were travelling on the lead snowmobile; which was followed by the snowmobile operated by Casey Ugulini. The police indicated in their reconstruction report that here was no evidence to suggest that either Christopher or Casey Ugulini were operating their snowmobiles in a dangerous manner or at excessive speeds but the Motorized Snow Vehicles Act, R.S.O. 1990, c. M.44 limits speeds on a trail to 50 kilometres per hour. [12] A fresh single pre-collision track mark was located travelling in a southerly direction towards the area of impact. The single track mark disappeared at the area of impact and did not re-appear. The single track mark indicates in my view that the snowmobiles continued to follow each other in a single file line immediately prior to the snowmobile collisions. [13] The police determined that Christopher s Snowmobile collided with a large fallen tree limb that stretched entirely across the Trail, following which, Casey s Snowmobile also collided with the same tree. The raised portion of the tree limb was freshly damaged on its north face and was missing bark at a height between centimetres. The width of the largest area of damage was approximately 12 centimetres. The height of the missing bark would be the same height of the face and neck of the snowmobile operators. The fallen tree is clearly depicted in the photographs taken by the police. [14] Lindsay Lance advised police that Casey s snowmobile and Christopher s snowmobile struck the aforesaid tree and that they were all thrown off of their snowmobiles. [15] According to police, fresh damage was observed to Christopher s Snowmobile; specifically, a crack in the front right side of the hood, a broken brake lever on the left side handle bar and a broken throttle actuator on the right side handle bar. Further, there was fresh bark/wood imbedded into the front of the right side handle bar and the right mirror was broken off.

4 4 [16] According to police, damage was also observed to the front-end of Casey s Snowmobile. The hood/bumper was partially detached and cracked along with the windshield. The handlebars were sheered at the steering column and attached with wires/cables. A fresh piece of wood was imbedded in the front of the left side handle bar brake reservoir. This sled had rolled as a result of the impact with the tree. [17] The police opined in the Accident Reconstruction Report that the facial area of Christopher Ugulini s helmet came into contact with the fallen limb. This impact sent his body backwards into his passenger, Lindsay Lance. Both riders were thrown from the sled and landed in the snow. The unoccupied snowmobile continued south before coming to a rest. The police further opined that Casey s Snowmobile continued to follow behind Christopher s Snowmobile. He was also unable to avoid the collision with the tree and his facial area made contact with the same tree limb. He was thrown from the sled as well. His unoccupied sled continued south before overturning. The reconstruction report is silent as to whether there was evidence of contact as between the two snowmobiles. [18] The Motor Vehicle Accident Report reports both snowmobiles had minor damage to their front ends only, suggesting that there was no contact between the two snowmobiles, but rather only with the tree. However, the Fund maintains otherwise and suggests that there was damage to the right rear of Chris Ugilini s snowmobile as depicted in photographs on page 169 of the reconstruction report. These photographs do show a small piece of bent metal at the right rear corner of the snowmobile, but for the most part there is no damage to the metal or plastic at the rear of the snowmobile as one might expect to see it the lead vehicle was rear-ended by the following vehicle. There was no expert evidence adduced to connect the small piece of bent metal on the right corner to a rear end collision as opposed to striking something (like branches) on its way to its resting position. [19] Given the time of year, the police confirmed in their Accident Reconstruction Report that the sun had set by 5:45 pm. and there were no artificial light sources in the area. Police measured the seat heights of the snowmobiles and combined the estimated seated riding heights of Casey and Christopher Ugulini. Each of their faces and necks were approximately at the same height as the area of impact on the limb. ANALYSIS AND FINDINGS [20] A priority dispute arises when there are multiple motor vehicle liability policies which might respond to a statutory accident benefits claim made by an individual involved in a motor vehicle accident. Section 268 (2) of the Insurance Act sets out the priority rules to be applied to determine which insurer is liable to pay statutory accident benefits. It essentially sets out a hierarchy or priority ladder to determine the priority insurer.

5 5 [21] Since the claimants were occupants of a vehicle at the time of the accident, the following rules with respect to priority of payment apply: (i) (ii) (iii) (iv) The occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured; If recovery is unavailable under (1), the occupant has recourse against the insurer of the automobile in which he or she was an occupant; If recovery is unavailable under (1) or (2), the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose; If recovery is unavailable under (1), (2) or (3), the occupant has recourse against the Motor Vehicle Accident Claims Fund. [emphasis mine] [22] The claimants were on a snowmobile that was uninsured. According to the priority hierarchy set out above and the facts herein, the Fund would stand in priority (fourth rung of the priority ladder) unless it was found that the snowmobile insured by Gore was involved in the incident. If the snowmobile insured by Gore is found to be involved in the incident, then Gore would stand in priority (third rung of the priority ladder). [23] There exists considerable jurisprudence on the issue of whether a vehicle is involved in the incident. The words are analyzed in different contexts though. Some of the cases involve priority disputes while others involve loss transfer or entitlement to uninsured motorist coverage. The legislative intent may well be different depending the on the context of the words being interpreted. [24] The criteria to be considered in determining whether an vehicle is involved in the incident was canvassed in the Dominion of Canada General Insurance Company v. Kingsway Insurance Company (unreported decision of Arbitrator Lee Samis, released August 23, 1999, affirmed in an unreported decision of H. Sachs, J. of the Ontario Superior Court of Justice, released January 11, 2000), namely: (a) (b) (c) (d) Whether there is contact between the vehicles; The physical proximity of the vehicles; The time interval between the relevant actions of the two vehicles; The possibility of a causal relationship between the actions of one vehicle and the subsequent actions of another; and

6 6 (e) Whether it is foreseeable that the actions of one vehicle might directly cause harm or injury to another vehicle and its occupants. [25] In Dominion, the issue of involved in the incident arose in the context of a loss transfer dispute and the determination of whether there was a Fault Determination Rule that would apply, or whether fault would be determined by application of the ordinary rules of law as per s. 5 of O. Reg 668. The court took into consideration the actions of another vehicle involved in the collision, rather than simply applying the fault chart depiction with respect to only the two vehicles actually in collision with one another. The facts of that case disclosed that the operator of the heavy commercial vehicle, insured by Kingsway, exited from a truck stop on the east side of Highway 11 and was moving through the northbound lane of Highway 11 while making a left turn. Rock Russeau was driving a vehicle insured by Dominion. He was driving north on Highway 11 when he saw the heavy commercial vehicle making its turn. Believing the northbound lane was obstructed by the heavy commercial vehicle, Mr. Russeau applied his brakes, lost control of his vehicle and skidded into collision with a parked pickup truck. Mr. Russeau sustained injuries that entitled him to statutory accident benefits from the insurer of his vehicle, Dominion. Dominion sought reimbursement from the insurer of the heavy commercial vehicle, Kingsway. Kingsway denied liability for any loss transfer payment and the two insurers proceeded with an Arbitration. Arbitrator Samis found that although the heavy commercial vehicle exiting from the truck stop was not involved in any collision, it was still a vehicle involved in the incident, applying the criteria aforesaid. He found that the incident at hand could not be characterized by simply taking into account the actions of only the two vehicles actually involved in the collision. As a result, it was found that the Fault Determination Rules called for the determination of fault in accordance with the ordinary rules of law, taking into account the involvement of three vehicles as opposed to just the two that made contact with one another. The decision of Arbitrator Samis was appealed to the Superior Court of Justice wherein Justice Sachs accepted the analysis of Arbitrator Samis. The decision stands for the proposition that there need not be contact for a vehicle to be considered involved in the incident, so long as the actions of the alleged non-involved vehicle contributed to the actions of the other vehicles leading to the ultimate collision. [26] In the decision of Janousek v. Halifax Insurance Company, et al., (Arbitrator Shemin Manji, January 19, 1998, [1998] O.I.C.D. No. 8), the criteria for being considered involved in the incident were also considered. It should be noted that this was a priority dispute decision. In Janousek, a pedestrian was struck by an uninsured vehicle that carried her onto the roadway where she fell off the vehicle. The vehicle then continued to cross a street, where it struck a concrete and metal fence. Three insured vehicles were parked behind the fence that was struck by the uninsured vehicle. The only damage to the parked vehicles occurred as a result of debris from the fence falling on them. Arbitrator Manji concluded that the three parked insured vehicles were not involved in the incident.

7 7 [27] In Janousek, Arbitrator Manji noted that the insured vehicles played no role in the incident in which the use or operation of an automobile caused injury to the claimant. She went on to say: I am unable to accept that the insured automobiles were drawn into the accident as associates or participants or shared the experience or effect of the accident, or became embroiled in the accident or became implicated or wrapped or enveloped in the accident merely because some debris from the fence which was subsequently struck by the uninsured vehicle, fell on them. In my view, the nexus or link between the insured automobiles and the accident is remote in this case. [28] I have also been referred to the decision of Seetal v. Quiroz (2009) O.J. No In that case, an uninsured vehicle struck a pedestrian, carrying her on its hood when then struck by a nearby taxicab insured by Lombard. One of the issues was a determination as to whether the claimant was entitled to uninsured motorist coverage from the insurer of the taxi. In order to qualify, the claimant had to demonstrate that she was a person who was involved in an accident involving the insured automobile. The meaning of involved was considered. In the Seetal decision, it was determined that there was sufficient proximity in time and place and there were sufficient spatial and participatory factors to conclude that there was involvement in the accident by the taxicab. There was contact between the two vehicles involved. There was no evidence in the Seetal decision that the taxicab was in any way a cause of the pedestrian being struck, or that the conduct of the taxicab driver contributed to the damages. Justice Perell made it clear in his decision that the determination of whether a vehicle was involved was fact-based. His comments at paragraphs 42, 55, 56 and 57 of his decision are helpful. They read as follows: 42. Being fact-based, involvement or non-involvement will be easy to determine in some cases but not in others. For example, one would not hesitate in concluding that Mr. Quiroz, Jr. was involved in Ms. Seetal s accident because he caused it. One would also not hesitate to conclude that if Mr. Bali s vehicle had been struck several blocks distant from Jane St. and Driftwood Ave. during Mr. Quiroz s flight from the scene, that this would not be involvement in Ms. Seetal s accident but a separate accident involving Mr. Bali s vehicle. However, the case at bar is more difficult because although Mr. Bali s vehicle was not the cause of the accident, nevertheless, it was at least in very close proximity in time and place to Ms. Seetal s accident. 55. I agree with Arbitrator Manji s reasoning and decision but it is not dispositive of the case at bar. As I indicated earlier in these Reasons for Decision, determining whether there is involvement in an accident will be more or less difficult depending on the facts of the particular case. Janousek strikes me as an easy case to find no involvement given that there was some significant separation in time, place and participation of the parked and unoccupied vehicles and the accident that occurred on the other side of the street and that was completed before the uninsured vehicle struck the fence. 56. I also agree with the fact-based approach of the Hannam line of authorities, where courts without providing a comprehensive definition, simply recognize involvement when they see it. The common law sometimes develops that way before a clear rule emerges and in my opinion, the circumstances of the case at bar bring Mr. Bali and his vehicle within the temporal, spatial and participatory factors sufficient to

8 8 conclude that there was involvement in Ms. Seetal s accident, notwithstanding that Mr. Bali was not a cause or a contributing cause to the accident. [emphasis added] 57. However, I think I can go further. Without providing a comprehensive definition, I think that a person who is involved in an accident involving the insured vehicle includes: (a) a person who caused or contributed to the accident, and (b) a person who to borrow from S.7 (3) of the Motor Vehicle Accident Claims Act is a person against whom the injured person might reasonably be considered as having a cause of action. [29] In Aviva v. RSA (Arbitrator Rudolph - June 28, 2007), Mr. Marchese was operating a motor vehicle insured by Aviva. He was travelling north along Highway 61. At the same time, Mr. Hogan, who was insured with Royal, was operating a transport truck and was in the process of merging from the shoulder into the northbound lanes of Highway 61, ahead of the Marchese vehicle. As a result of the merging vehicle, Mr. Marchese claimed to have lost control of his vehicle and collided with a transport truck travelling in the oncoming lane operated by a Mr. Lindgren. One of the issues Arbitrator J. Rudolph was asked to determine in the context of the loss transfer dispute before him was whether Mr. Hogan s transport truck was involved in the incident between Mr. Marchese and Mr. Lindgren. [30] Arbitrator Rudolph stated that to be involved in an incident does not require contact between vehicles. A vehicle can be involved in an incident if the driver of that vehicle did something which causes or contributes to a motor vehicle accident. On the facts before him, Arbitrator Rudolph stated that Mr. Hogan s vehicle may have been involved in the incident if Mr. Hogan did something or failed to do something which caused or contributed to Mr. Marchese losing control of his vehicle. However, based upon the facts of this case, Arbitrator Rudolph determined that Mr. Hogan s vehicle was not to blame for Mr. Marchese s loss of control; rather, Mr. Marchese was to blame for his own actions. Thus, Mr. Hogan s vehicle was found not to be involved in the incident. [31] Personal Insurance Co. v. Unifund Assurance Co CarswellOnt 14837, involved a priority dispute in which the issue of involved in the incident was considered by Arbitrator Novick. In that case, a vehicle insured by Unifund turned left across the path of a vehicle insured by ACE. The ACE vehicle was propelled into the claimant who was standing on the sidewalk, while the Unifund vehicle was propelled into another vehicle stopped at the intersection insured by the Personal. The claimant submitted his claim for accident benefits to the Personal which commenced a priority dispute claiming the insured vehicle was not involved in the incident. Arbitrator Novick concluded that the vehicle insured by the Personal was not involved in the incident. She found that while the requirements of proximity in place and time were met, the requirement of participation was lacking. She found that the involvement of the vehicle insured by the Personal was too remote and played no role in the injuries sustained by the claimant. She found the vehicle insured by Unifund in priority by use of the transmission of force concept.

9 9 [32] Gore has taken the position in the case before me that the snowmobile that they insured and operated by Casey Ugilini was not involved in the incident of December 26, Gore Mutual submitted the following: (a) There is no evidence to suggest that Casey and Christopher s Snowmobiles came into contact with each other on the date of loss; (b) The evidence suggests that Casey s Snowmobile was approximately 10 metres behind Christopher s Snowmobile at the time of Christopher s collision with the fallen tree; (c) The only relevant action of Casey Ugulini was that he travelled south on the Trail behind Christopher Ugulini. Casey s subsequent incident with the fallen tree did not occur until seconds after Christopher s incident was completed; (d) There is no evidence that Casey s Snowmobile took any action that would have caused Christopher s Snowmobile to strike the fallen tree; and, (e) Casey s Snowmobile did not take any action that might have directly caused the harm or injury to Christopher or Lindsay. [33] Gore takes the position that the jurisprudence as set above suggests that where a vehicle is determined to be involved in the incident, despite no contact between the subject vehicles, there must be evidence of a causal relationship between the actions of one vehicle and the subsequent actions of another. They claim that here there is no evidence to suggest that Casey s Snowmobile played any role in the incident that caused injury or damage to Christopher Ugulini and Lindsay Lance. This damage was the sole result of their impact with the fallen tree. Further, there is no evidence of any evasive action or a loss of control of either snowmobile that led to the subject collisions with the fallen tree. The Police Reconstruction Report concluded that both Christopher and Casey s Snowmobiles were travelling in a straight-line, one after the other immediately prior to their impact with the tree. The evidence suggests that both vehicles independently and without any interaction or involvement with the other snowmobile, collided with a fallen tree that hung across the trail. [34] Based upon the available facts, it is Gore s position that the within dispute is best described as two separate incidents that occurred in quick succession and completely independent of one another and the vehicle that they insured was not involved in the incident. [35] In response, the Fund advanced several positions. [36] Firstly, they have taken the position that the three requirements to be considered in determining whether a vehicle was involved as set out by Justice Perell in Seetal were

10 10 satisfied. Clearly there was proximity of time and proximity of space with the collisions taking place at the same spot and only 6/10ths of a second apart. The Fund claimed that the requirement of participation is met as the photographs of the rear of the Chris Ugilini vehicle support a finding that there was contact between the vehicles. I am not satisfied on the evidence before me that there was contact between the vehicles. This was never suggested in the police reconstruction. I am not satisfied that the slight bend of a piece of metal on the rear right corner of the snowmobile is damage resulting from collision between the two vehicles as opposed to damage occasioned while proceeding through the debris field. The photographs in the police reconstruction show no crush damage to the rear of the lead snowmobile that one would expect from a collision at the speeds they were travelling. On the totality of the evidence, I find that there was no contact between the two snowmobiles. [37] Secondly, the Fund claims that regardless of any lack of contact, the vehicle insured by Gore should still be considered an involved vehicle. They have submitted that the word involved is not defined in the legislation and therefore should be given an expansive interpretation in keeping with the body of jurisprudence supporting the proposition that with regard to accident benefits, statutory interpretation ought to be liberal so as to expand coverage rather than restrict coverage. The Fund claims that given the ordinary meaning of the word involved as used in common parlance, it would include the situation we have here. They claim that if an objective observer were asked how many vehicles were involved in this accident, the answer would clearly be two. The Fund took the position that the facts herein cannot be viewed as two separate incidents. Here the snowmobiles were only separated by 10 metres in length and 6/10ths of a second in time, with the collisions occurring at the same location. The Fund also suggested a causal relation between the actions of the two drivers with the vehicles traveling too closely to one another. The Fund maintained that a sufficient number of the criteria have been met to satisfy that the vehicle insured by Gore was involved in the incident. [38] With respect to the Fund s second approach, I agree that on the established jurisprudence there does not have to be contact to be considered involved in the incident. I also accept that when determining an individual s access to statutory accident benefits, a liberal interpretation should be given to the words of the legislation. However, it should be kept in mind that the case before me is not a case of whether an individual is entitled to statutory accident benefits, but rather a determination of which of two insurers is responsible for payment of benefits. In my view, for there to be involvement in a priority dispute context not only must there be proximity of time and space, but there must still be some link or nexus between the actions of the operator of the alleged involved vehicle to the injuries sustained by the claimants. In the case before me, there was clearly proximity of time and space, but the facts cannot support the participatory component. I am satisfied that the injuries sustained by the occupants of the lead snowmobile would have occurred whether the vehicle insured by Gore was following or not. The involvement of the snowmobile insured by Gore must be considered simply too remote with regard to the injuries sustained by the claimants. Simply stated, I am of the view that in a priority dispute where there is an absence of contact between the vehicles, there must be some action on the part of the driver of the alleged involved vehicle that caused or contributed to the collision giving rise to the injuries

11 11 sustained by the claimants. There was no causal connection on the facts before me, just as there was no causal connection between the parked cars and the injuries sustained by the claimant in the priority dispute in Janousek. As I have indicated, this is not the case of the claimant not having access to accident benefits, but a priority dispute as to which insurer is obligated to pay such benefits. The test to be applied ought be the same whether it is two private insurers which are involved or whether one of the insurers is the Fund. [39] The third approach taken by the Fund was that the claimant was an insured under the Gore policy, placing Gore at the first rung of the priority ladder set out in s. 268(2) of the Insurance Act. Section 3(1) of the SABS defines insured person as a person who is involved in an accident involving the insured automobile. The Fund contended that as a result of this definition, the claimants were insured persons under the Gore policy because the accident in which they were in involved the snowmobile insured by Gore. This is the very argument raised in Personal (supra) and rejected by Arbitrator Novick where she found that the definition of insured person in s. 3 of the SABS should not be imported into the s. 268(2) priority analysis and explains in detail the basis for such finding, including the specific comments of Arbitrator Samis in Co-operators General Insurance Co. v. Royal Insurance Co CarswellOnt I fully agree with the findings of Arbitrator Novick and the reasoning outlined in her decision. In any event, the vehicle must be found to be involved and the facts before me do not support such a finding. [40] By way of summary, I am satisfied that in applying the criteria set out in the jurisprudence above, the Ugulini snowmobile insured by Gore was not an automobile involved in the incident, so as to make Gore the priority insurer by application of Section 268(2)(1)(iii) of the Insurance Act. There is insufficient evidence to prove that there was contact between the two vehicles. The two vehicles did collide with the same obstacle. Although there was proximity in time and space (10 metres apart and less than a second between impacts), I find that there was an absence of causal relationship between the actions of the driver of the trailing snowmobile contributing to the collision giving rise to the injuries sustained by the claimants. There is no evidence before me to suggest that the actions of the driver of the following vehicle in any way contributed to the collision of the lead snowmobile with the fallen tree. Had the claimants been on the trailing snowmobile, an argument would have been available to show that the actions of the lead driver did contribute to the injuries sustained by those on the trailing snowmobile. It could be argued that had the lead vehicle been travelling at speed commensurate with the illumination provided by its headlights and a proper lookout kept, then the brake lights of the lead vehicle, had they been applied in a timely fashion, would have warned the driver of the following vehicle of an obstacle ahead and the collision possibly averted. In such circumstances, it might well be found that the lead vehicle s speed, the improper lookout of the operator and late application of brake lights gave the operator of the following vehicle little chance to avoid a collision. In such circumstances there very well may be a finding of a causal relationship between the operation of the vehicles involved. That cannot be said on the evidence before me. On the facts before me, the result would have been the same whether the snowmobile insured by Gore was following or not.

12 12 [41] In my view, it is the lack of a causal connection between the operation of the following snowmobile and the collision of the lead vehicle with the fallen tree which, on the balance of the established criteria, leads to a finding that the vehicle insured by Gore was not involved in the incident. As in Personal (supra), there was proximity of time and proximity of space but not participation. [42] I am of the view that the element of participation is a required component in any involved vehicle analysis in the context of a priority dispute to determine which of two or more insurers is responsible for payment of statutory benefits to a claimant. To hold otherwise could conceivably result in a situation where the insurer of a parked car could be held to be in priority to the insurer of a vehicle that caused an accident, which in my view would be an unfair balancing of responsibilities among insurers. Assume for the moment that the claimant was a passenger in an uninsured vehicle and had no insurance of their own. Assume the uninsured vehicle swerved to avoid an insured vehicle that proceeded through a stop sign forcing the uninsured vehicle into an insured parked car with no contact with the vehicle that blew the stop sign. If both insured vehicles were considered vehicles involved in the incident and the claimant decided to make claim against the insurer of the parked vehicle, it would be the insurer of the parked vehicle responsible for payment of accident benefits according to s. 268(4) of the Insurance Act. I do not believe that this is what the legislature intended when creating the priority hierarchy set out in s. 268(2) of the Insurance Act. I cannot help but believe that third rung of the priority ladder was meant to be for vehicles meaningfully involved, that is a vehicle whose action caused or contributed to the injuries sustained by the claimant and connected in most circumstances by proximity of time and space. In the priority dispute context, the interpretation of the words involved in the incident as contained in s. 268(2), is not to expand coverage to make benefits available to an insured as the insured already has access to such benefits, but to fairly distribute responsibility for payment of benefits among those insurers involved in the priority dispute. [43] On the facts of the case before me, the snowmobile insured by Gore was not a vehicle involved in the incident. The involvement of the snowmobile insured by Gore was too remote to be causally connected to the injuries sustained by the claimants. ORDER [44] On the basis of the findings above, I hereby order: 1. That the Fund is the priority insurer; 2. That the Fund assume carriage of the accident benefits claims of the claimants and indemnify Allstate with respect to those payments subject to indemnity, together with interest calculated in accordance with the Courts of Justice Act;

13 13 3. That the Fund and Gore provide submissions within two weeks with respect to legal costs of the parties and costs of the Arbitrator, given the complicating factor of a previous preliminary decision in which costs were reserved and provided they are not able to come to a resolution of the costs issue as between them. DATED at TORONTO this 6 th ) day of June, ) KENNETH J. BIALKOWSKI Arbitrator