



COURT OF APPEAL FOR ONTARIO

CITATION: Benson v. Belair Insurance Company Inc., 2019 ONCA
    840

DATE: 20191025

DOCKET: C65918 and C66726

Feldman, MacPherson and Simmons JJ.A.

BETWEEN

DOCKET: C65918

Austin Benson

Applicant (Appellant)

and

Belair
    Insurance Company Inc. and

Financial
    Services Commission of Ontario

Respondents (Respondents)

AND BETWEEN

DOCKET: C66726

Christopher
    Perneroski, by his Litigation

Guardian, Wendy Perneroski

Plaintiff (Respondent)

and

Echelon General Insurance Company

Defendant
    (Appellant)

Ian W. Furlong and Robert M. Ben, for the appellant
    Austin Benson

Eric K. Grossman and Patrick M. Baker, for the
    respondent Belair Insurance Company Inc.

Deborah McPhail and Martina Aswani, for the respondent
    Financial Services Commission of Ontario

Daniel Strigberger and Caroline L. Meyer, for the
    appellant Echelon General Insurance Company

Robert M. Durante and Ben Irantalab, for the respondent Christopher
    Perneroski

Heard: May 29, 2019

On appeal from the judgment of the Divisional Court (Regional
    Senior Judge Geoffrey B. Morawetz, and Justices Julie A. Thorburn and E. Ria
    Tzimas), dated April 9, 2018, with reasons reported at 2018 ONSC 2297, 141 O.R.
    (3d) 541, refusing an application for judicial review of a decision of the
    Financial Services Commission of Ontario (Appeal Division), dated February 15,
    2017, with reasons reported at 2017 CarswellOnt 3134.

On appeal from the order of Justice Annette Casullo of
    the Superior Court of Justice, dated February 28, 2019, with reasons reported
    at 2019 ONSC 1415.

Feldman J.A.:

Introduction

[1]

Two accidents. Two recreational off-road vehicles, an ATV and a dirt
    bike. Two catastrophic injuries. Both accidents occurred outside Ontario, one
    in British Columbia, one in Georgia, U.S.A. Both injured parties are from
    Ontario. Both have an Ontario automobile insurance policy for a car or truck
    they own in Ontario. Both insurers denied statutory accident benefits (SABs).
    Both were challenged in court but via different procedural routes. One sued in
    the Superior Court, which held that the insurer must pay the SABs. The other
    sought arbitration at the Financial Services Commission of Ontario. The Arbitrator
    denied the claim. That denial was upheld on appeal to the Directors Delegate
    and on judicial review by the Divisional Court.

[2]

Both appeals were heard together by this court as they both concern the
    interpretation of the same provisions of the
Insurance Act
,
R.S.O.
    1990, c. I.8, and the
Off-Road Vehicles Act
,
R.S.O. 1990, c.
    O.4, as they apply to out of province accidents.

[3]

For the reasons that follow, I would find that both insurers are obliged
    to pay SABs because both vehicles are automobiles that were involved in an
    accident within the meaning of the
Statutory Accident Benefits Schedule 
    Effective September 1, 2010
,
O. Reg. 34/10 (the SABS Regulation
    34/10) and the
Statutory Accident Benefits Schedule  Accidents on or
    after November 1, 1996
,
O. Reg. 403/96 (the SABS Regulation
    403/96), collectively the SABS Regulations.

Background Facts

(1)

Benson v. Belair
:

[4]

The appellant, Mr. Austin Benson, was a resident of Ontario who was
    living in British Columbia in June 2013. On June 23, while a passenger on an
    all-terrain vehicle (ATV) that was owned and driven by a British Columbia
    resident driving on a public trail owned by the Northern Rockies Regional
    Municipality, Mr. Benson fell off and suffered a severe brain injury. He was
    the named insured under an Ontario automobile policy issued by the respondent,
    Belair Insurance Company Inc. That policy did not list an ATV as an insured
    vehicle.

[5]

Mr. Benson filed an application for accident benefits in Ontario. Belair
    denied coverage, contending that because the accident occurred in British
    Columbia, the question of whether an ATV constitutes an automobile for Ontario
    accident benefit purposes was to be determined under the laws of British
    Columbia which do not require ATVs to be insured as motor vehicles.

[6]

The parties were unable to resolve their dispute through mediation and Mr.
    Benson applied for arbitration at the Financial Services Commission of Ontario.
    The FSCO Arbitrator upheld Belairs denial of accident benefits. Mr. Bensons
    statutory appeal to the Directors Delegate and his further application for
    judicial review to the Divisional Court were both dismissed.

[7]

The Arbitrator rejected Mr. Bensons argument that Ontario legislation
    applied regardless of the jurisdiction in which the accident took place. He
    stated:

Rather, I agree with the Insurers analysis that the starting
    point of the analysis begins with the principle of
lex loci delicti
,
    which is a rule of private international law. The Supreme Court of Canada has
    stated that Canadas Constitution supports a rule that is certain and that
    ensures that an act committed in one part of this country will be given the
    same legal effect throughout country;
lex loci delicti
principle. Its
    support of this law is unequivocal because it allows for uniformity of legal
    effect throughout the country. On the whole, there is little to be gained and
    much to lose in creating an exception to
lex loci delicti
.

The Supreme Court of Canada decisions of
Tolofson v. Jensen
and
Lucas v. Gagnon
[[1994] 3 S.C.R. 1022] are particularly relevant
    when analyzing which provincial laws should be adhered to in the case before
    me. These cases address the choice of rule of law, which law should govern
    auto accidents involving residents of different provinces.

As it relates to the case before me, given that this incident
    occurred in British Columbia and using the Supreme Court of Canada decision as
    guidance; the laws of British Columbia and specifically the laws of British
    Columbia that relate to insurance requirements of an ATV at the time of the
    accident, should apply in this case.Clearly, Ontario law has no relevance to
    the insurance coverage regarding this vehicle.I am not convinced that the
    usage of the term any relevant law in the third part of the ordinary parlance
    test can be used to impose an Ontario insurance requirement on Mr. Askins ATV
    in British Columbia.

[8]

On appeal, the Directors Delegate upheld the Arbitrators decision. In
    his view, this was a matter of statutory interpretation. He concluded:

If any Act in s. 224(1)(a) [of the
Insurance Act
] refers
    strictly to Ontario law, it cannot apply to the ATVs owner in British
    Columbia, as Mr. Askin and his ATV fall outside of Ontarios jurisdiction. And
    if any Act can include Acts of British Columbia, the ATV was not required to
    be insured under a motor vehicle policy there, so again the any [sic] extended
    definition of automobile under relevant legislation does not apply.

[9]

On judicial review, the Divisional Court concluded that the application
    involved a matter of statutory interpretation to which the standard of review
    of reasonableness applied, and because the decision fell within the range of
    possible defensible outcomes, deference was warranted.

[10]

On
    the issue of whether Ontario or British Columbia law applied to the question of
    whether the ATV was required to be insured, the Divisional Court stated at
    paras. 39-42:

The Ontario Court of Appeal in
Adams v. Pineland Amusements
    Ltd.
, 2007 ONCA 844, 88 O.R. (3d) 321 held that when determining a case of
    liability insurance, "the proper question is whether the vehicle [involved
    in the accident] required motor vehicle insurance at the time and in the
    circumstances of the accident."

This ATV ("the vehicle") was not required to be
    insured under any motor vehicle liability insurance policy because this ATV was
    operated in British Columbia where ATVs need not be insured. At the time and in
    the circumstances of this accident, this ATV was not insured.

Moreover, there is no basis to assert that the Applicant had a
    legitimate expectation that his insurer would cover an accident involving ATVs,
    as ATVs are not included under this insured's policy.

Finally, although Ontario's
Off-Road Vehicles Act
states that "no person shall drive an off-road vehicle unless it is
    insured under a motor vehicle liability policy" under the
Insurance Act
,
    it is reasonable to assume that this provision only requires this of ATVs in
    Ontario, not ATVs in British Columbia. Accordingly, although an ATV in Ontario
    is required by Ontario's Off-Road Vehicles Act to be insured under a motor
    vehicle liability policy, the same cannot be said of the particular ATV in this
    case because it is an ATV located in British Columbia.

[11]

The
    Divisional Court concluded, at para. 46: the Director's Delegate's decision
    that the relevant legislation to consider is British Columbia legislation and
    the ATV did not therefore fall within the definition of an automobile for the
    purpose of the SABs, was reasonable.

(2)

Perneroski v. Echelon
:

[12]

The
    parties presented the court with an agreed statement of facts which formed the
    basis for the motion judges analysis. The respondent, Mr. Christopher
    Perneroski, is a resident of Ontario. The appellant, Echelon General Insurance
    Company, issued a standard Ontario OAP 1 motor vehicle liability policy to him
    as the named insured, with his Toyota pick-up truck as the described automobile
    under the policy. The insurance policy contained the statutory benefits set out
    in the SABS Regulation 403/96. There is no dispute that if Mr. Perneroski was
    involved in an accident, he would be an insured person under the policy and
    entitled to accident benefits.

[13]

He
    purchased a dirt bike on February 27, 2006, which he registered with the
    Ontario Ministry of Transportation. Just 12 days later, on March 11, 2006, Mr.
    Perneroski was tragically injured while riding the dirt bike on a closed track at
    a sports resort in Union Point, Georgia, U.S.A. He sustained a severe traumatic
    brain injury. He has spent the ensuing years in a wheelchair, requiring
    round-the-clock care and supervision. Mr. Perneroski submitted a claim for
    accident benefits under the insurance policy. Echelon denied the claim on the
    basis that the dirt bike was not an automobile, and therefore the incident was
    not an accident as defined in the SABS Regulation 403/96.

[14]

The
    motion judge referred to the definition of automobile in s. 224(1) in Part VI
    of the
Insurance Act
. Under that definition, automobile includes (a)
    a motor vehicle required under any Act to be insured under a motor vehicle
    policy. A dirt bike is an off-road vehicle. The
Off-Road Vehicles Act
provides in s. 15(1) that: [n]o person shall drive an off-road vehicle unless
    it is insured under a motor vehicle policy in accordance with the
Insurance
    Act
.
[1]
Subsection (9) provides an exception from the insurance requirement where the
    off-road vehicle is being driven on land occupied by the owner of the dirt
    bike. Similarly, s. 2(1) 5. of a regulation to the
Off-Road Vehicles Act, General
,
R.R.O. 1990, Reg. 863, (the ORVA Regulation) also provides an insurance
    exemption when the bike is being driven in a sponsored closed course competition
    or rally. Because the plaintiff was not in a rally or on his own property, the
    motion judge accepted that had the accident occurred in Ontario, he would have
    been entitled to receive accident benefits.

[15]

The
    issue became whether the same result applied when the accident occurred outside
    Ontario. The motion judge approached the question in the same way as it was
    approached in the
Benson
case, by asking what law applied, Ontario law
    or Georgia law. The motion judge found that she would exercise her discretion
    to apply the
lex fori
, the law of Ontario, rather than the
lex
    loci delicti
, the law of Georgia. However, in the alternative, recognizing
    that this was not a tort case but a contractual dispute, she applied the law of
    the jurisdiction where the contract was formed, again, Ontario law, and found
    that Mr. Perneroski was entitled to receive SABs.

Issue

[16]

These
    appeals were heard together because they both raise the same issue: Do the SABS
    Regulations and the definition of automobile in Part VI of the
Insurance
    Act
, apply differently if the accident occurs in Ontario or outside
    Ontario?

Analysis

[17]

Part
    VI of the
Insurance Act
of Ontario governs automobile insurance in
    this province. The provision of SABs in every motor vehicle liability policy is
    mandated by s. 268(1) which provides:

Every contract evidenced by a motor vehicle liability policy,
    including every such contract in force when the
Statutory Accident Benefits
    Schedule
is made or amended, shall be deemed to provide for the statutory
    accident benefits set out in the
Schedule
and any amendments to the
Schedule
,
    subject to the terms, conditions, provisions, exclusions and limits set out in
    that
Schedule
.

[18]

Both
    Mr. Benson and Mr. Perneroski, residents of Ontario, held motor vehicle
    liability policies with Belair and Echelon respectively.

[19]

The
    SABS Regulation 34/10, the version currently in force and the version that was in
    force at the time of the Benson accident, and the SABS Regulation 403/96, the
    version in force at the time of the Perneroski accident, define an accident as
    follows:

accident means an incident in which the use or operation of
    an automobile directly causes an impairment or directly causes damage to any
    prescription eyewear, denture, hearing aid, prosthesis or other medical or
    dental device[.]

[20]

And
    insured person is defined in the SABS Regulation 34/10 in part as follows:

insured person means, in respect of a
    particular motor vehicle liability policy,

(a) the named insured, any person specified in
    the policy as a driver of the insured automobile and, if the named insured is
    an individual, the spouse of the named insured and a dependant of the named
    insured or of his or her spouse,

(i) if the named insured, specified driver,
    spouse or dependant is involved in an accident in or outside Ontario that
    involves the insured automobile or another automobile, or

(ii) if the named insured, specified driver,
    spouse or dependant is not involved in an accident but suffers psychological or
    mental injury as a result of an accident in or outside Ontario that results in
    a physical injury to his or her spouse, child, grandchild, parent, grandparent,
    brother, sister, dependant or spouses dependant[.]
[2]

[21]

I
    note here that an insured person is within the definition whether the accident
    occurs in or outside Ontario.

[22]

Other
    provisions make it clear that SABs are payable where an automobile is used or
    operated whether in Canada, the United States or any other jurisdiction
    designated in the SABS Regulations. Section 243(2) of the
Insurance Act
provides:

Statutory accident benefits
    provided under section 268 apply to the use or operation of any automobile in
    Canada, the United States of America and any other jurisdiction designated in
    the
Statutory Accident Benefits Schedule
, and on a vessel plying between
    ports of Canada, the United States of America or a designated jurisdiction.

[23]

At
    the time of the accidents, s. 2(3) of the SABS Regulation 34/10 and s. 3(2) of the
    SABS Regulation 403/96 also provided:

The benefits set out in this Regulation shall be provided in
    respect of accidents that occur in Canada or the United States of America, or
    on a vessel plying between ports of Canada or the United States of America.

[24]

Importantly,
    both Mr. Perneroskis insurance policy and Mr. Bensons insurance policy specifically
    state under the heading Where You Are Covered:

This policy covers you and other insured persons for incidents
    occurring in Canada, the United States of America and any other jurisdiction
    designated in the Statutory Accident Benefits Schedule, and on a vessel
    travelling between ports of those countries.

[25]

As
    benefits are provided for an accident, and an accident only arises out of the
    use or operation of an automobile, one must look for the relevant definition of
    automobile. Because the SABS Regulations do not include that definition, this
    court in
Adams v. Pineland Amusements Ltd.
, 2007 ONCA 844, 88 O.R.
    (3d) 321, endorsed a three-part test for determining whether the vehicle that
    caused the particular damage or injury was an automobile for the purpose of the
    provisions: 1) Is the vehicle an automobile in ordinary parlance? 2) If not, is
    it defined as an automobile in the wording of the insurance policy? 3) If not,
    does the vehicle fall within any enlarged definition of automobile in a
    relevant statute?

[26]

It
    was accepted in both decisions under appeal that neither a dirt bike nor an ATV
    is considered to be an automobile in ordinary parlance. That proposition is not
    in dispute on the appeals.

[27]

Nor
    was it argued that either is defined as an automobile in the wording of the two
    respective policies.
[3]

[28]

Therefore,
    the issue in each case is whether the dirt bike and the ATV fall within any
    enlarged definition of automobile in a relevant statute. Section 224(1) of the
Insurance Act
, in Part VI, defines automobile for the purpose of
    Part VI in part as:

automobile includes,

(a) a motor vehicle required under any Act to be
    insured under a motor vehicle liability policy[.]

[29]

Section
    1 of the
Off-Road Vehicles Act
defines an off-road vehicle as follows:

off-road vehicle means a vehicle
    propelled or driven otherwise than by muscular power or wind and designed to
    travel,

(a) on not more than three wheels, or

(b) on more than three wheels and being
    of a prescribed class of vehicle[.]

[30]

It is agreed that both the dirt bike and the ATV are off-road vehicles
    governed by the
Off-Road Vehicles Act
. Subsections
    15(1)-(3) and (9) of the
Off-Road Vehicles Act
provide that an off-road vehicle cannot be driven without insurance, with the
    one exception that insurance is not required where the vehicle is driven on
    land occupied by the owner of the vehicle. Subsections 15(1) and (9) state:

(1) No person shall drive an off-road
    vehicle unless it is insured under a motor vehicle liability policy in
    accordance with the
Insurance Act
.

(9) Subsections (1), (2), and (3) do
    not apply where the vehicle is driven on land occupied by the owner of the
    vehicle.

[31]

As
    mentioned earlier, s. 2(1) 5. of the OVRA Regulation also provides an insurance
    exemption when an off-road vehicle is driven in a sponsored closed course
    competition or rally:

2.
(1) The
    following are designated as classes of vehicles that are exempt from the
    provisions of the Act and this Regulation:

[]

5. Off-road vehicles driven or
    exhibited at a closed course competition or rally sponsored by a motorcycle
    association.

[32]

In neither incident was the off-road vehicle being driven on land that
    was occupied by the owner of the vehicle or in a sponsored rally. Mr. Benson
    was a passenger on an ATV owned and driven by Mr. Lee Askin in British Columbia
    on a trail that was owned and operated by the Northern Rockies Regional
    Municipality. Mr. Perneroski was driving his own dirt bike on a closed track at
    a sports resort in Georgia.

[33]

All agree that had the two incidents happened in Ontario, the two
    injured parties would have been entitled to receive SABs under their respective
    policies. Why? The two off-road vehicles would be automobiles within the
    extended definition in s. 224(1) of the
Insurance Act
, because under s. 15(1) of the
Off-Road Vehicles Act
, they would have required insurance in order to be driven in the
    locations they were being operated at the time of the accidents.

[34]

However, the same insurance requirement did not apply in either Georgia
    or British Columbia for dirt bikes and ATVs. In both cases under appeal, the
    courts and tribunals set out to determine whether the law of Ontario or the law
    of the jurisdiction where the incidents occurred governed the SABs entitlement
    issue, applying the legal constructs of
lex loci delicti
and
lex fori
. In my view, they erred in
    so doing.

[35]

As
    the motion judge in the
Perneroski
case recognized in her reasons, the
    issue before the court was not a tort claim arising out of an accident in
    another jurisdiction involving an Ontario resident and a local resident, where
    the choice of law rules from
Tolofson v. Jensen
,
[1994] 3
    S.C.R. 1022, must be considered and applied: see
Kingsway General Insurance
    Co. v. Canada Life Assurance Co.
(2001), 149 O.A.C. 303 (C.A.), at para.
    12.

[36]

The
    issue in the two cases under appeal is the proper interpretation and
    application of the respective insurance contract provisions and the Ontario
    statutes that govern SABs entitlement.

[37]

When
    all the relevant provisions are examined, it is clear, in my view, that Ontario
    law governs and that the provisions that dictate the result for Ontario
    incidents dictate the same result for incidents that take place outside Ontario
    that are covered under the automobile insurance policy.

[38]

The
    interpretive stumbling block that has challenged the courts and tribunals is the
    wording of s. 15(1) of the
Off-Road Vehicles Act
. That is the section
    that makes an off-road vehicle an automobile within the expanded definition in
    s. 224(1) of the
Insurance Act
because it requires insurance when such
    vehicles are driven. However, that requirement is not enforceable outside
    Ontario. As with any Ontario Act, it can only be enforced in Ontario. That led
    the Divisional Court to conclude that an off-road vehicle is only an automobile
    when it is being driven in Ontario.

[39]

With
    respect, that interpretation fails to read the section in the context and for
    the purpose of s. 224(1) of the
Insurance Act
.

[40]

As
    a stand-alone statute, the
Off-Road Vehicles Act
governs the use and
    operation of off-road vehicles when they are not being driven on a highway. It
    includes a number of enforcement provisions which apply only in Ontario.
    However, s. 224(1) of the
Insurance Act
contains a direction for the
    purpose of applying s. 3(1) of the SABS Regulation 34/10 (
formerly
    s. 2(1) of the SABS Regulation 403/96)
, to examine other Ontario statutes
    in order to determine whether a particular motor vehicle comes within the expanded
    definition of automobile by requiring that motor vehicle to be insured.

[41]

I
    say Ontario statutes because s. 224(1) refers to any Act, and s. 87 of the
Legislation
    Act
, 2006
, S.O. 2006, c. 21, Sched. F, states that the words Act
    and statute, when used in an Act or regulation, mean an Act of the
    Legislature of Ontario. Therefore, it is an error to look to a statute of
    another jurisdiction or to see if there is a statute in that jurisdiction that
    requires insurance. The expanded definition must be found in an Ontario Act.

[42]

On
    a plain reading of ss. 15(1) and (9) of the
Off-Road Vehicles Act
, and
    s. 2(1) 5. of the ORVA Regulation, insurance is required to drive an off-road
    vehicle except on the owners own property or where the off-road vehicle is designated
    by regulation as an exempt class of vehicles. Those sections therefore have the
    effect of defining an off-road vehicle as an automobile for the purpose of s.
    224(1) and s. 3(1) of the SABS Regulation 34/10 (formerly s. 2(1) of the SABS
    Regulation 403/96), except when it is driven on the owners own property or in
    a sponsored closed course competition or rally. There is no language that
    limits that definition to off-road vehicles driven in Ontario.

[43]

This
    result is consistent with the provisions of the
Insurance Act
, the
    SABS Regulations, and the contract language, which all state that the SABs will
    be provided whether the incident occurs anywhere in Canada, the U.S.A. or the
    other designated jurisdictions. The effect of the Divisional Courts
    interpretation would be to read out the expanded definition of automobile for
    incidents that occur outside Ontario and limit SABs payments accordingly. Even
    if the local laws where the incident occurred required insurance for the
    off-road vehicle, as I explained above, such laws do not inform the definition
    of automobile.

[44]

The
    result is also consistent with the statutory scheme for insurers liability for
    payment of SABs set out in ss. 268(2)-(5.2) of the
Insurance Act
. Those
    sections mandate which insurer pays the SABs, depending on the factors listed
    in the sections including whether the claimant is an occupant of an automobile
    or a non-occupant. Again, there is no differentiation based on where the
    incident that caused the loss or injury occurred. By applying the same
    definition of automobile no matter where the incident occurs, the same insurer
    will be called on to pay the benefits. There is no unfairness among insurers
    arising from this result.

[45]

I
    also respectfully disagree with the statement by the Divisional Court that Mr.
    Benson could have no legitimate expectation that his insurer would cover an
    accident involving an ATV because ATVs were not included in his policy. To the
    contrary, the SABS Regulations make it clear that if you are a defined insured
    person you are covered for incidents in the insured automobile
or another
    automobile
. A person can expect coverage if the accident occurs in an
    automobile within the extended definition.

[46]

The
    Divisional Court also referred to a statement in this courts decision in the
Adams
case at paras. 16 and 17 where the court said: [t]he proper question was
    whether [the vehicle] required motor vehicle insurance at the time and in the
    circumstances of the accident. The Divisional Court interpreted that statement
    to mean that if the vehicle is being driven outside Ontario in a jurisdiction
    that does not require insurance, that is a circumstance that precludes the
    vehicle from being an automobile within the extended definition.

[47]

I
    would not extend the intended effect of that statement to treat the fact that an
    incident occurred outside Ontario as a relevant circumstance for the purpose of
    determining whether the vehicle is an automobile for SABs purposes. That
    statement was made in the context of an Ontario action where the issue was
    whether a go-kart was an automobile for the purposes of receiving SABs. The
    argument had been made that the go-kart was an automobile because it
    conceptually might require insurance if it were illegally driven on a highway.
    The court looked at the actual timing and circumstances of the accident in
    rejecting that proposition. Because the go-kart was operated on a private
    go-kart track at the time of the accident, it did not require insurance.

[48]

A
    similar analysis applies when reviewing other Court of Appeal decisions that
    have considered the labyrinth of provisions under the relevant Ontario statutes
    including the
Insurance Act
, the Statutory Accident Benefits Schedule,
    the
Compulsory Automobile Insurance Act
, R.S.O. 1990, c. C.25, the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8, the
Off-Road Vehicles Act
, and the
Motorized Snow Vehicle Act
, R.S.O. 1990, c. M.44, for the purpose of
    determining whether such vehicles as a tomato wagon, a back-hoe, or a farm
    tractor were automobiles for the purposes of the
Insurance Act
. These
    cases include
Copley v. Kerr Farms Ltd.
(2002), 59 O.R. (3d) 346 (C.A.),
Morton v. Rabito
(1998), 42 O.R. (3d) 161 (C.A.), leave to appeal
    refused, [1999] S.C.C.A. No. 51, and

Regele v. Slusarczyk
(1997), 33 O.R. (3d) 556 (C.A.). In each of these cases, the relevant time and
    circumstance were where the particular vehicle was at the time of the incident,
    and whether an Ontario statute required it to be insured at that time. I have
    not been referred to any case that involved incidents that occurred outside
    Ontario.

[49]

To
    conclude, I am satisfied that when considering the extended definition of
    automobile, the circumstances to be considered are those mandated by the
    relevant statutory provisions that state when a vehicle is required to be
    insured under a motor vehicle liability policy. As a definitional mechanism,
    the provisions are applicable to any incident for which SABs may be payable in
    the same manner, regardless of where the incident occurred within the
    geographical coverage area of the relevant Ontario insurance policy.

Standard of Review

[50]

The
Benson

appeal is from a judgment denying an application for judicial
    review by the Divisional Court of a decision of the Directors Delegate on
    appeal from a Financial Services Commission of Ontario arbitrator, with leave
    granted by this court. The Divisional Court held that the reasonableness
    standard of review applies. I agree.

[51]

In
    my view, the decision of the Directors Delegate was unreasonable and must be
    set aside. This is the type of case recognized by the Supreme Court of Canada
    in
McLean v. British Columbia (Securities Commission)
, 2013 SCC 67, [2013]
    3 S.C.R. 895, at para. 38, where the range of reasonable outcomes will
    necessarily be limited to a single reasonable interpretation.

[52]

There can be only one reasonable interpretation of the statutory language
    regarding the extended definition of automobile. The language is not unclear
    or ambiguous. With respect, the Arbitrator and the Directors Delegate
    proceeded on a legal misapprehension that the
lex loci delicti
should
    be applied to a contract and statutory interpretation issue involving an
    Ontario contract and Ontario legislation where that legislation specifically
    directs that Ontario law is to apply:
Insurance Act
at s. 123. An
    interpretation of the statutory language cannot be within a range of reasonable
    outcomes where it is erroneously based on inapplicable legal principles. Further,
    the provisions of the statutes in question and the standard form motor vehicle
    insurance policy must have the same meaning for all claimants. The factual
    circumstances of the claimants will differ and require adjudication, but the
    application of the legislative provisions must be uniform.

Conclusion

[53]

I would dismiss the
Perneroski
appeal with costs fixed in the agreed
    amount of $10,000 inclusive. I would allow the
Benson
appeal with
    costs fixed in the agreed amount of $5,000 inclusive for the appeal and $4,000
    inclusive for the motion.

Released: K.F. October 25, 2019

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

Janet
    Simmons J.A.





[1]

The
Off-Road Vehicles Act
does not have any application
    to an off-road vehicle being driven on a highway (s. 2). In that circumstance,
    other statutes govern. Insurance is required for off-road vehicles driven on a
    highway (and therefore it is an automobile under the extended definition in s.
    224(1) of the
Insurance Act
), see s. 2(1) of the
Compulsory
    Automobile Insurance Act,
R.S.O. 1990, c. C.25 and s. 1(1) of the
Highway
    Traffic Act
, R.S.O. 1990, c. H.8.



[2]

A substantively similar definition was provided in the previous
    SABS Regulation 403/96, which read in part:

insured
    person in respect of a particular motor vehicle liability policy, means,

(a)

the named insured, any
    person specified in the policy as a driver of the insured automobile, the
    spouse of the named insured and any dependant of the named insured or spouse,
    if the named insured, specified driver, spouse or dependent,

(i)

is involved in an
    accident in or outside Ontario that involves the insured automobile or another
    automobile, or

(ii)

is not involved in an
    accident but suffers psychological or mental injury as a result of an accident
    in or outside Ontario that results in a physical injury to his or her spouse,
    child, grandchild, parent, grandparent, brother, sister, dependant or spouses
    dependant,



[3]
Mr. Perneroski took the position that his dirt bike was defined in the
    insurance policy as an automobile in the court below but the motion judge
    concluded, at para. 52, that as the dirt bike was an automobile under the third
    branch of the
Adams
test, it was not necessary to deal with the second
    branch. Mr. Perneroski did not take the position that the dirt bike was defined
    as an automobile in the insurance policy in this appeal.


