Dumoulin v. Binder, 2022 ONSC 6874
Written By: Brandon Pedersen and Cody Malloy, Student-at-Law
This Superior Court decision stems from an incident where Ryan Dumoulin, the Plaintiff, was injured riding his uninsured dirt bike on private property owned by the Defendant, Michael Binder. Binder pursued Dumoulin in his pickup truck and the two vehicles collided.
The Defendant brought a motion for the determination before trial of a question of law under Rule 21.01 of the Rules of Civil Procedure. The question of law before the court was whether the Plaintiff is barred from an action in tort against the Defendant due to his operation of an uninsured dirt bike at the area of loss, at the material time.
The Legislation
The Court considered the following three sections of legislation in its decision:
Section 267.6(1) of the Insurance Act (IA):
Despite any other Act, a person is not entitled in an action in Ontario to recover any loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2 (1) of the Compulsory Automobile Insurance Act in respect of that automobile.
Section 2(1) of the Compulsory Automobile Insurance Act (CAIA):
Subject to the regulations, no owner or lessee of a motor vehicle shall,
(a) operate the motor vehicle; or
(b) cause or permit the motor vehicle to be operated,
on a highway unless the motor vehicle is insured under a contract of automobile insurance.
Section 15(1) of the Off-Road Vehicles Act (ORVA):
No person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act.
Analysis
Justice McCarthy began his analysis by dismissing the Defendant’s position that the Ontario legislature intended on making section 267.6(1) of the IA a blanket provision limiting any uninsured driver’s ability to sue in tort to recover for injuries sustained. The Court highlighted that the only provision limiting an uninsured dirt biker’s ability to sue in tort is under section 2(1) of the CAIA, which stems from the operation of a motor vehicle on a highway. In the Court’s view, if the legislature wanted to restrict all uninsured motorists’ ability to sue in tort, they would have used more definitive language in section 267.6(1) of the IA.
After considering the relevant legislation, Justice McCarthy opined in paragraph 21 of the decision that the language in section 2(1) of the CAIA is clear:
… the use of the words “operate a motor vehicle on a highway” are capable of no other reasonable interpretation but that the offending motor vehicle must be operated on highway at the time of the incident for the rights depriving prohibition to apply.
The Defendant also argued that “time” and “incident” in section 267.6(1) of the IA should be interpreted broadly to encompass both the material time and the context and circumstances of the incident. The Court declined to stretch the meaning of the words “far beyond their plain and ordinary meanings” in paragraph 24:
In my view, “the time of the incident” can only refer to the bodily injury causing event, in this case the collision between the truck and the dirt bike.
The Court explained that the physical and psychological injuries arose from the collision itself or the moments leading up to the collision. Although the context and surrounding circumstances are relevant to an analysis of negligence, the “incident” in question is the “brief passage of time on either side of the collision”.
Justice McCarthy found that the Court of Appeal in Beaudin v. Travelers Insurance Company of Canada “stopped well short of pronouncing that the operator of an uninsured motor vehicle will always be deprived of her rights to advance a claim for damages or benefits. Instead, the court pointed only to the “serious risk” such a person runs of facing that outcome.” As such, the language from Beaudin indicates how insured drivers face a “serious risk” of not being able to sue in tort, but not an outright prohibition against doing so.
Conclusion
The Court concluded that it cannot ignore or distort the “plain statutory language” of section 2(1) of the CAIA. Therefore, the Plaintiff was not barred from advancing his claim under section 267.6(1) of the IA.
