BETWEEN AWARD AND IN THE MATTER OF THE ARBITRATION ACT AND IN THE MATTER OF AN ARBITRATOR CO-OPERATORS GENERAL INSURANCE COMPANY

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1 IN THE MATTER OF THE INSURANCE ACT R.SO C.18 S.275 AND REGULATION 6664 OF R.R.O S.9 AND IN THE MATTER OF THE ARBITRATION ACT 1991 SC C.17 AND IN THE MATTER OF AN ARBITRATOR BETWEEN CO-OPERATORS GENERAL INSURANCE COMPANY Applicant -and- THE GENERAL ACCIDENT ASSURANCE COMPANY OF CANADA Respondent Appearances AWARD Mr. Bruce Keay for the Applicant Cooperators General Insurance Company Mr. Gregory P. Heckel for the Respondent The General Accident Assurance Company of Canada ISSUES 1. Is the Co-operators General Insurance Company entitled to indemnification from the General Accident Assurance Company for all payments made to its insureds Antonio and Guiseppina Greco in respect of accident benefits 2. Does the bus owned by the City of Elliot Lake and/or A.J. Bus Lines Ltd. Qualify as heavy commercial vehicle pursuant to Regulation 275/ If the answer to questions and is in the affirmative then is Co-operators General Insurance Company entitled to interest on all payments for accident benefits

2 from June 1994 to the date of judgement. 4. If the answer to question is in the affirmative is the Co-operators General Insurance Company entitled to interest at the rate prescribed in the Statutory Accident Benefits Schedule i.e. two percent per month or in the alternative at the rate outlined in the Courts of Justice Act R.S.O c. 43. RESULT 1. The Co-operators General Insurance Company is not entitled to indemnification from the General Accident Assurance Company for all payments made to its insureds Antonio and Guiseppina Greco in respect of accident benefits. 2. The bus owned by the City of Elliot Lake and/or A.J. Bus Lines Ltd. is not heavy commercial vehicle pursuant to Regulation 275/90. HEARING The Arbitration Hearing was held at the City of Toronto in the Province of Ontario on July before me Bruce R. Robinson pursuant to the provisions of the Arbitration Act EVIDENCE The parties supplied an Agreed Statement of Facts and no witnesses were called to give evidence. FACTS The parties have agreed to the following facts The Co-operators General Insurance Company insured an automobile owned and operated by Antonio Greco pursuant to the provisions of standard automobile contract Policy No

3 The General Accident Assurance Company of Canada insured vehicle owned and operated by the Corporation of the City of Elliott Lake and A.J. Bus Lines Ltd. pursuant to standard automobile policy of insurance Policy No On or about October 1993 Antonio Greco was operating his motor vehicle in an easterly direction on Mississauga Avenue near its intersection with Pearson Avenue in the City of Elliot Lake when his vehicle was struck by bus owned and/or operated by the Corporation of the City of Elliot Land and A.J. Bus Lines which had been proceeding in northbound direction on the said Pearson Avenue and failed to stop for stop sign facing northbound traffic on Pearson Avenue. As result of the aforesaid motor vehicle collision Antonio Greco and his wife Guiseppina Greco who was travelling as passenger in the Greco motor vehicle sustained injuries. The Co-operators Generai Insurance Company pursuant to the aforesaid policy of insurance paid weekly income medical and rehabilitation benefits to Antonio Greco and Guiseppina Greco. Pursuant to Section 93 of Regulation 664 of the Insurance Act R.S.O second party insurer under policy of insurance insuring heavy commercial vehicle is obligated under Section 275 of the Insurance Act to indemnify first party insurer unless the person receiving Statutory Accident Benefits from the first party insurer is claiming them under policy insuring heavy commercial vehicle. The Greco motor vehicle was not heavy commercial vehicle. Co-operators General Insurance Company is first party insurer in this instance. The General Accident Assurance Company is second party insurer with respect to this claim.

4 Pursuant to Section 2751 of the Insurance Act the insurer responsible under Section 2682 for payment of Statutory Accident Benefits to such classes of persons as may be named in the Regulations is entitled subject to such terms conditions provisions exclusions limits as may be prescribed to indemnification in relation to such benefits paid by it from the insurers of such classes or classes of automobiles as may be named in the Regulations involved in the incident from which the responsibility to pay Statutory Accident Benefit arose. By way of correspondence dated June 1994 Co-operators General Insurance Company put the General Accident Assurance Company on notice of this loss transfer claim. The Co-operators General Insurance Company has demanded that the General Accident Assurance Company of Canada indemnify it for benefits paid to Antonio Greco and Guiseppina Greco. To date the General Accident Assurance Company has refused to indemnify the Co-operators General Insurance Company for the accident benefits paid to Antonio and Guiseppina Greco. The total of weekly income medical and rehabilitation benefits paid to Antonio Greco by the Co-operators General Insurance Company as result of this accident is $ The total of accident benefits paid to Guiseppina Greco as result of this accident is $ The total pay out in respect of accident benefits to these two claimants by the Co-operators General Insurance Company is $ Ontario Regulation defines heavy commercial vehicle as follows vehicle with gross vehicle weight greater than 4500 kilograms that is used primarily to transport materials goods tools or equipment.

5 The bus owned and/or operated by the City of Elliot Lake and A.J. Bus Lines Ltd. has gross vehicle weight of greater that 4500 kilograms. LEGISLATION The Ontario Insurance Act R.S.O c. 18 states 275. IDEMN1FICATION IN CERTAIN CASES. The insurer responsible under subsection 268 for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled subject to such terms conditions provisions exclusions and limits as may be prescribed to indemnification in relation to such benefits paid by from it the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which the responsibility to pay the statutory accident benefits arose c.10 s.1 At the time of the accident in this case namely October 1993 Section of the Ontario Regulation 664/90 was in place. It dealt with Indemnification for No-Fault Benefits and stated as follows heavy commercial vehicle means vehicle with gross vehicle weight greater than 4500 kilograms that is used primarily to transport materials goods tools or equipment Regulation 664 was amended on January 1994 by Regulation 780/93 which provided other definitions for commercial vehicle and public vehicle as follows commercial vehicle commercial vehicle means an automobile used primarily to transport materials goods tools or equipment in connection with the insureds occupation and includes police department vehicle fire department vehicle driver training vehicle vehicle designed specifically for construction or maintenance purposes vehicle rented for thirty days or less or trailer intended for use with commercial vehicle public vehicle public vehicle means an automobile used primarily to provide transportation services to the public and includes an ambulance bus funeral vehicle limousine or taxi. Section of the amended Regulation further states

6 heavy commercial vehicle Heavy commercial vehicle means commercial vehicle with gross vehicle weight greater that 4500 kilograms. FINDINGS The applicant Co-operators General Insurance Company submits that despite the fact that there is no reference to bus in the definition of heavy commercial vehicle under Section of Regulation 664 bus is implicitly included. The Respondent General Accident Assurance Company of Canada submits this is an improper interpretation of the section and that bus is not vehicle which would be included in the definition of heavy commercial vehicle as stated in the Section of the old regulation. find that the interpretation of Section 91 is clear and the definition of heavy commercial vehicle is divided into the following categories vehicle having gross weight of greater than 4500 kilograms used primarily to transport materials good tools or equipment was referred to summary of the decision of Mr. Montgomery sitting as an arbitrator in Wellington Insurance v. Guarantee insurance Company December Ontario Accident Benefit case summaries 4149 and to the subsequent appeal of this decision under the name of Lloyds of London v. Guarantee Company of North America October 1995 Ontario Accident case summary 0054 decision of Mr. Justice Mandel. The vehicle in that case was garbage packer unit which was insured with Canadian General Insurance Company. It had gross weight in excess of 4500 kilograms and was used in the pick-up and transportation of commercial garbage and refuse. The garbage truck struck pedestrian who was insured with Wellington

7 Insurance Company. On the original application Mr. Montgomery found that garbage and refuse were not material or goods and refused the request of Wellington Insurance Company for loss transfer. On appeal Mr. Justice Mandel came to the contrary conclusion finding that heavy commercial vehicle included this particular garbage truck as garbage was material or goods. In the summary of the case presented to me Justice Mandel held that the purpose of Section 275 of the Insurance Act must require insurers of certain classes of commercial vehicles to bear greater burden in paying accident benefits on the burden placed on automobile insurers. Since there was no reason to include the dictionary meaning of commercial the definition need not be confined to useful materials as that would affect the purpose of section 275. was advised by both counsel that there were no reported cases with regard to buses. It is important to note that whereas the original regulation which is the subject matter of this application spoke simply of heavy commercial vehicles the amended regulation provides more specific definition of the term commercial vehicle. The effect of that specific definition excludes buses on the basis that they are public vehicles. The definition under the amended regulation appears to have been split identifying commercial vehicles and then further identifying heavy commercial vehicles as those commercial vehicles having gross vehicle weight greater than 4500 kilograms. The old regulation referred to weight and usage within the context of the one definition of heavy commercial vehicle whereas the amended regulation

8 separates use and weight in two different definitions. During argument both counsel agreed that this bus transported people. Unfortunately there was no evidence put before me as to any other purpose of this particular bus. find that the transportation of people does not fall into the definition to transport materials goods tools or equipment. Therefore this bus in not heavy commercial vehicle pursuant to Section 91 of Regulation 644. Furthermore the use of the term is used primarily injects usage component to the definition which is extremely important when considering the scope of the definition. The importance of usage to the definition becomes apparent when we look at the amendments to the Regulation where the new definition becomes broken down in terms of usage and weight and specifically now refers to bus. Usage is therefore an integral part of the definition which in this case is expressed in terms of inclusiveness rather than exclusiveness. common tool of statutory interpretation that is of assistance is the presumption of straight-forward expression. In the respected text of Dreidger On The Construction Of Statutes the commentary on this presumption if found on page 158 as follows Presumption of straightforward expression. It is presumed that in so far as possible legislatures will adopt simple straightforward and concise way of expressing themselves. As Monnin J.A. wrote in ReMedied Centre Apartments Ltd. and City of Winnipeg The Legislature is assumed to have used the clearest way of expressing its intention.

9 The legislators subsequently took the opportunity to refine the usage distinction by amending the Regulation in December of 1994 which amendment specifically excluded buses as being public vehicles used primarily to provide transportation services to the public an includes an ambulance bus funereal vehicle limousine or taxi. find this to be simple clarification of the legislatures intent and purpose. It is also helpful to consider the limited class rule or ejusdem generis from Driedger where it is defined as follows whatever the particular document one is construing when one finds clause that sets out list of specific words followed by general term it will normally be appropriate to limit the general term to the genus of the narrowing enumeration that proceeds it. For the limited class rule to apply there must be an identifiable class to which all the specific items set out in the provision belong. This prerequisite is essential because the class inferred from the enumerated specifics fixes the limits to which the general words are confined. In this case there is general description of heavy commercial vehicle and specific items namely vehicles to primarily transport materials goods tools or equipment. The feature or set of features that is common to each enumerated item becomes the defining feature of the limited class and that which makes it identifiable. In this case the class includes inanimate objects associated with trade or commerce. The important factor here is not word order but rather the meaning of the words used to introduce the list of specific terms and to link them to the general category.

10 find it is clear that the specific usages are meant to narrow and particularize in what circumstances the vehicle will be viewed as heavy commercial vehicle. find further assistance in the maxim expressio unius est exclusio alterius which simply stated means that to express one thing is to exclude another. An implied exclusion argument will lie whenever there is reason to believe that if the legislature had meant to include particular thing within the ambit of its legislation it would have referred to that thing expressly. Because of this expectation the legislatures failure to mention the thing such as bus in this case becomes grounds for inferring that it was deliberately excluded. Although there is no express exciusion exclusion is implied. The ordinary meaning rule as and applied by modern courts consists of the following propositions It is presumed that the ordinary meaning of legislative test is the intended or most appropriate meaning. In the absence of reason to reject it the ordinary meaning prevails. Even where the ordinary meaning of legislative text appears to be clear the courts must consider the purpose and scheme of the legislation and the consequences or adopting this meaning. They must take into account all relevant indicators of legislative meaning. In light of these additional considerauons the court may adopt an interpretation in which the ordinary meaning is modified or rejected. That interpretation however must be plausible that is must be one it the words are reasonably capable of bearing. Simply stated the ordinary meaning of word is that which is understood by competent user of the English language upon reodng those words in their immediate context. 10

11 find that the words materials goods tools or equipment do not include people. These words are used for specific purpose and to be understood not only by other legislators but by the public at large. find no ambiguity in the definition of the phrase heavy commercial vehicle and therefore find the bus in this application does not fall into that category. AWARD 1. The Co-operators General Insurance Company is not entitled to indemnification from the General Accident Assurance Company for payments made to Antonio and Guiseppria Greco in respect of accident benefits. 2. The bus owned by the City of Elliot Lake and/ora.j. Bus Lines Ltd. is not ORDER heavy commercial vehicle pursuant to Regulation 275/ It is ordered that the application of Co-operators General Insurance Company herein for indemnification from Co-operators General Insurance Company is dismissed. 2. It is further ordered that the Co-oper ors General Insurance Company pay to the respondent the General Accideit Insurance Company of Canada its cost of the Arbitration. Dated at Toronto this August Bruce R. Robinson Arbitrator 11

12 SAN1S AND CO S3 P.12 Footnotes 1. Sullivan Ruth Driedger on the Construction of Statutes 3rd Ed. Toronto Butterworths Canada Ltd P Ibid. p lbid.p Implied Exclusion Espresslo Unius Est Excusio Alterius Governing principle. One of the so-called maxisof statutory interpretation is expressio unius est exclusio alterius to express one thing is to exclude another. This maxim reflects form of reasoning that is widesp ead and important in interpretation. Cote revers to it as the contrario argument. Dickerson refers to it negative implication. The term implied exclusion has been adopted here. An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include particular thirc. within the ambit of its legislation it would have referred to that thing expressly. Because of this expectation the legislatures failure to mention the thing becom. grounds for inferring that it was deliberately excluded. Although there is no express exclusion exclusion is implied. The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to thing the more telling the silence of the legislat e. 4. lbid.p.7. 12