Morton v. Rabito

Morton v. Rabito Collection Decisions of the Court of Appeal Date 1998-12-10 Docket numbers C25245, C28970 Judges Morden, John Wilson; Catzman, Marvin Adrian; Feldman, Kathryn N. Subject Civil Decision Content DATE: 19981210 DOCKET: C25245 and C28970 COURT OF APPEAL FOR ONTARIO MORDEN A.C.J.O., CATZMAN and FELDMAN JJ.A. B E T W E E N C28970 ) David Zuber, for the ) appellant KEVIN MORTON, DALE MORTON and BRENT ) MORTON by his Litigation Guardian, Dale ) Daniel Dooley for the Morton ) respondents ) Plaintiffs ) Roderick S. Winsor for (Respondents) ) the intervener Continental ) Insurance and ) ) Kristopher Knutsen, Q.C. SALVATORE RABITO, VITO PERINO, THE ) for the interveners, Yvette DOMINION OF CANADA GENERAL ) Scott and Jesse Scott INSURANCE COMPANY, MOTOR VEHICLE ) ACCIDENT CLAIMS FUND, and ) COMMISSIONER OF INSURANCE ) ) Defendants ) (Appellants) ) BETWEEN: C25245 ) Thomas D. Galligan ) for the appellant, Jevco JEVCO INSURANCE COMPANY ) Christine H. Mauro ) for the respondent Applicant ) (Appellant) ) Roderick S. Winsor, ) for the intervener and ) Continental Insurance ) COMMERCIAL UNION ASSURANCE ) Kristopher Knutsen, Q.C., COMPANY ) for the interveners, Yvette ) Scott and Jesse Scott Respondent ) (Respondent) ) Heard: September 10, 11 ) and 14, 1998 CATZMAN J.A.: Morton v. Rabito [1] In January, 1993, Kevin Morton was driving his pick-up truck on a public highway when he came into collision with a backhoe. He was very seriously injured. The backhoe with which he collided was owned by Vito Perino, but was not being operated with Perino's consent. Salvatore Rabito, who was operating the backhoe, had stolen it earlier that evening from a construction site close to the scene of the accident. The backhoe was not insured under a motor vehicle liability policy. [2] Morton's own insurer, The Dominion of Canada General Insurance Company, provided uninsured and underinsured automobile coverage. Morton, his wife and infant son brought action against the owner and the operator of the backhoe and against Dominion for very substantial damages. Dominion moved for summary judgment dismissing the claims asserted against it, alleging that the backhoe was not an "automobile" within the meaning of the policy it had issued. [3] Hermiston J. held that the backhoe was an "automobile" within the provisions of the Dominion insurance policy, and dismissed Dominion's motion for summary judgment. His reasons are reported at (1998), 37 O.R. (3d) 274. [4] After setting out the relevant language of the insuring agreement, Part D, and of the O.E.F. coverage in Kevin Morton's standard form policy of insurance1, Hermiston J. characterized the issue before him to be "whether the definition of 'automobile' includes a backhoe, so that payment pursuant to the various sections of the policy becomes operative" (p. 276). He noted that the definition of "automobile" in s.1, the definition section of the Insurance Act, included "a self-propelled vehicle" which, he held, clearly included a backhoe. He noted further that the term "automobile" was defined in s. 224(1), the first section in Part VI of the Insurance Act, which deals specifically with automobile insurance. That section provides that, in Part VI, " 'automobile' includes a motor vehicle required under any Act to be insured under a motor vehicle liability policy". He then referred to the judgment of this court in Regele v. Slusarczyk (1997), 33 O.R. (3d) 556, which held that a farm tractor was not an "automobile" as defined by s. 224(1), and to Dominion's submission that since a backhoe, like a farm tractor, was expressly excluded from the definition of "motor vehicle" in the Highway Traffic Act, a backhoe was, likewise, not an "automobile" within s. 224(1) of the Insurance Act. Hermiston J. rejected this submission and held, following Heath v. Co- operators General Insurance Co. (1994), 24 C.C.L.I. (2d) 183 (Ont. Gen. Div.), that a backhoe fell within the definition of "automobile" in s. 1 of the Insurance Act and thus qualified as an automobile within the provisions of the policy issued by Dominion. [5] Dominion appeals. Jevco Insurance Company v. Commercial Union Assurance Company [6] In October, 1992, Stephen Hutson was driving his motorcycle on a public highway and attempted to pass a backhoe that was turning left across the roadway onto a private driveway. The motorcycle and the backhoe collided, and Hutson was seriously injured. The backhoe, owned by Pachecos Contractors Ltd., was not insured under a motor vehicle liability policy, but Pachecos was insured under a commercial general liability insurance policy issued by Commercial Union Assurance Company. The motorcycle was insured under a standard motor vehicle insurance policy issued by Jevco Insurance Company. Jevco paid Hutson, the injured motorcyclist, over $100,000 in accident benefit payments. It then brought an application against Commercial Union for a declaration that Commercial Union was a second party insurer within the contemplation of s. 275 of the Insurance Act and s. 9 of the Automobile Insurance Regulation and was therefore obliged to indemnify Jevco for the payments it had made2. [7] Hoillett J. held that s. 275 did not apply by reason of s. 226(2) of the Insurance Act, which makes Part VI inapplicable to contracts providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act unless it is insured under a contract evidenced by a form of policy approved under that Part. He therefore concluded that Commercial Union was not a second party insurer obliged to indemnify Jevco for the benefits it had paid. His reasons are reported at (1996), 37 C.C.L.I. (2d) 144. [8] In his reasons, Hoilett J. set out the relevant subsections of s. 275 of the Insurance Act and s. 9 of the regulation, the definitions of "automobile" in the Insurance Act and of "motor vehicle" and "road-building machine" in the Highway Traffic Act and the provision for inapplication of Part VI in s. 226(2) of the Insurance Act. He concluded that because a backhoe was "an automobile not required to be registered under the Highway Traffic Act" and because the backhoe was not "insured under a contract evidenced by a form of policy approved under [Part VI]", s. 226(2) operated to exempt Commercial Union from the obligation to indemnify Jevco under s. 275. His formal order declared that Commercial Union was not a "second party insurer" within the meaning of s. 275. [9] Jevco appeals. Relevant Statutory and Policy Provisions [10] The argument of these appeals canvassed a number of statutory provisions and standard form policy provisions. For ease of reference, I have set out the relevant statutory provisions in Schedule "A" and the relevant policy provisions in Schedule "B" to these reasons. Regele v. Slusarczyk [11] Much of the argument of these appeals was directed to the recent judgment of this court in Regele v. Slusarczyk (1997), 33 O.R. (3d) 556. Regele was an appeal from an order made on a motion for the determination, before trial, of the question of law whether a farm tractor was an "automobile" within the meaning of Part VI of the Insurance Act3. The motions judge held that it was. His order was reversed on appeal to this court. [12] The judgment of the court was delivered by Finlayson J.A. After setting out ss. 266(1) and (2) of the Insurance Act, he observed that "[i]n ordinary parlance, an automobile does not include a farm tractor" (p. 558). He then referred to s. 224(1) of the Insurance Act, which defines an automobile to include a motor vehicle required under any Act to be insured under a motor vehicle liability policy. He noted that the Act which requires a motor vehicle to be insured under a motor vehicle liability policy is the Compulsory Automobile Insurance Act4, which gives to "motor vehicle" the same meaning as that found in the Highway Traffic Act. He observed that the definition of "motor vehicle" in the Highway Traffic Act included an automobile but specifically did not include a farm tractor, a self-propelled implement of husbandry or a road-building machine within the meaning of that Act5. He then continued, at p. 559: Clearly, a farm tractor is not a motor vehicle under the Highway Traffic Act. This means that it is not a motor vehicle under the Compulsory Automobile Insurance Act. This is turn means that it is not an automobile under s. 224(1) since it is not "required under any Act to be insured under a motor vehicle liability policy". Accordingly, it is not an "automobile" within the meaning of s.266 of the Insurance Act. [13] He then turned to, and rejected, the motions judge's contrary view, which rested on the definition of "automobile" in s. 1 of the Insurance Act. Finlayson J.A. said, at p.559-560: With respect, the motions judge erred in finding that a farm tractor is an automobile for the purposes of s. 266. The operative definition is in s. 224(1) and not s.1. It is specifically applicable to Part VI and the special provisions that affect no-fault insurance. Even without the caveat ... [in the introductory words of] ... s.1, this is a case where the specific should override the general. It is clear that s. 224(1) was intended by the legislature to provide a definition of automobile for the purposes of Part VI. It incorporates by reference the definition of "automobile" in the Highway Traffic Act. That definition expressly excluded a farm tractor. It is illogical to make use of the word "includes" in s. 224(1) of the Insurance Act to bring in a vehicle which has already been expressly excluded. Section 1 is inconsistent with s. 224(1), the definition section that governs s. 266 of Part VI, and accordingly s. 224(1) must prevail. [14] Finally, Finlayson J.A. directed his attention to Heath v. Co-operators General Insurance Co., the case which Hermiston J. adopted in his reasons in Morton v. Rabito. Heath, said Finlayson J.A., at p. 560: dealt with the issue of whether an uninsured farm tractor was an uninsured automobile within the provisions of a policy of insurance. The policy did not define "automobile". Relying on s. 1 of the Insurance Act, Binks J. held that a farm tractor was an automobile for the purposes of the policy. Heath may well be distinguishable on this basis, but if it was not, it was wrongly decided. The Morton appeal [15] The Mortons' action against Dominion sought compensation pursuant to the uninsured automobile coverage in Part D (Uninsured Automobile Coverage) of Kevin Morton's Ontario Automobile Policy O.P.F. 1 and the underinsured automobile coverage in the O.E.F. 44 Family Protection Endorsement to his policy. Uninsured automobile coverage is made mandatory by s. 265(1) of the Insurance Act and finds its expression in Part D of the standard form automobile insurance policy used by insurers in Ontario and approved by the Ontario Insurance Commission. Underinsured automobile coverage is provided by an optional endorsement and finds its expression in O.E.F. 44, a standard form approved by the Superintendent of Insurance. [16] Was the backhoe that collided with Kevin Morton's pick-up truck an "automobile"? Just as it was the view of of Finlayson J.A. in Regele that, in ordinary parlance, an automobile does not include a farm tractor, so it is mine that, in ordinary parlance, an automobile does not include a backhoe. If, therefore, a backhoe is to fall within the definition of "automobile" as that term is used in the relevant provisions of Kevin Mortin's insurance policy, it must fall within some enlarged definition of that term found either in the policy or in an applicable statutory provision. [17] I deal first with the policy. [18] By s. 4.1 of Part D, Dominion agreed to pay all sums that its insured was legally entitled to recover from the owner or driver of an uninsured automobile. The expression "uninsured automobile" is defined in s. 4.2.4 of Part D to mean "an automobile with respect to which neither the owner nor driver thereof has applicable and collectible bodily injury liability and property damage liability insurance for its ownership, use or operation, ...". The word "automobile" is not defined in Part D. [19] By s. 3 of O.E.F. 44, Dominion agreed to indemnify an eligible claimant for "the amount he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile". The expression "inadequately insured motorist" is defined in s. 1.5(b) of O.E.F. 44 to mean "the identified owner or identified driver of an uninsured automobile as defined in Part D of the policy". Unlike Part D, however, s. 1 of O.E.F. 44 defines the word "automobile". By s. 1.1, "automobile" means "a vehicle for which motor vehicle liability insurance would be required if it were subject to the law of Ontario". It is common ground that a backhoe does not fall within this definition. [20] I therefore conclude that a backhoe does not fall within the definition of "automobile" either in ordinary parlance or within some enlarged definition of that term found in the insurance policy. [21] I turn to the statutory definitions of "automobile". [22] Dominion's position before Hermiston J. was that, having regard to the absence of a definition of "automobile" in Part D of the Policy, the court should have regard to the definition of that term in the Insurance Act. Section 1 provides, in relevant part: 1. In this Act, except where inconsistent with the definition sections of any Part, "automobile" includes a trolley bus and a self-propelled vehicle ..." [23] It is common ground that a backhoe is "a self-propelled vehicle" within the meaning of this definition. [24] Section 224(1) of the Insurance Act, which appears in Part VI --- AUTOMOBILE INSURANCE, defines "automobile" as follows: "automobile" includes a motor vehicle required under any Act to be insured under a motor vehicle liability policy; [25] As noted, in holding that a backhoe was an automobile within the provisions of Part D and O.E.F. 44, Hermiston J. adopted the reasoning of Binks J. in Heath v. Co-operators General Insurance Co. (1994), 24 C.C.L.I. (2d) 183. In Heath, Binks J. found that a farm tractor was an "automobile" within the meaning of Part D of the plaintiffs' policy of insurance. He reached that result by focusing on the word "includes" in s. 1 and s. 224(1) of the Insurance Act and concluded, at p. 186, that: ... if the insurance policy used restrictive words which limited the definition of automobile then a farm tractor would not be an automobile. Without such restrictive words, and in the case of the definition of the word automobile in s. 1 of the Insurance Act, a farm tractor being a self-propelled vehicle should be considered to be an automobile within the meaning of part D of the plaintiffs' policy of insurance. (Emphasis added.) [26] Applying this reasoning, Hermiston J. found that a backhoe qualified as an automobile within the provisions of Kevin Morton's policy of insurance. [27] In my respectful view, this reasoning --- in Heath and, subsequently, in Morton --- cannot stand in the face of the judgment of this court in Regele. [28] It is important to recollect the object of this definitional exercise. Part D of the policy does not define "automobile". O.E.F. 44 does define "automobile", but in a manner that excludes a backhoe. The impetus behind the consideration of the meaning of "automobile" under the Insurance Act was an effort to ascertain whether there was some statutory definition that might appropriately shed light on the meaning of "automobile" in the Morton automobile insurance policy. But if it is legitimate to have recourse to the Insurance Act in order to inform the meaning of "automobile" in the Morton automobile insurance policy, the appropriate definition to consider must surely be the definition found in that Part of the statute that deals specifically with automobile insurance, that is, Part VI. Regele holds that, in a case to which Part VI of the Insurance Act is applicable, the definition in s. 224(1) takes precedence over the definition in s. 1. It concludes that a farm tractor is not an "automobile" within s. 224(1) of the Insurance Act. I see no relevant distinction between a farm tractor and a backhoe. If a farm tractor is not an "automobile" within s. 224(1) of the Insurance Act, neither is a backhoe. [29] I therefore conclude that a backhoe does not fall within the applicable statutory definition of "automobile". [30] In the result, I am of the view that a backhoe is not an automobile within the contemplation of either Part D or O.E.F. 44, and that Hermiston J. erred when he came to the contrary conclusion. The Jevco appeal [31] On the argument of this appeal, counsel for Jevco (who was not counsel before Hoilett J.) made the preliminary submission that Commercial Union had conceded, on the hearing of the application, that a backhoe was an "automobile", although not one that was required to be registered under the Highway Traffic Act. Counsel for Commercial Union, who was counsel before Hoilett J., disputed that she had made any such concession. Although the language appearing at p. 149 of the reasons of Hoilett J. suggested such a concession, none appears in the agreed statement of facts, in the factum filed by Commercial Union before Hoilett J., or in the factum filed by Commercial Union in this court. I am satisfied that no such concession was made, and that the question whether the backhoe that collided with Stephen Hutson's motorcycle was an "automobile" is still open for argument on the Jevco appeal. [32] I now turn to that question. [33] In support of its position, Jevco relied on the decisions of Binks J. in Heath and of Hermiston J. in Morton, which I have already canvassed. Jevco also relied on an unreported decision of this court, affirming an unreported judgment of Hogg J., in Bergsma v. Canada (Attorney General), [1994] O.J. No. 2572, aff'd. [1996] O.J. No. 3082. In Bergsma, the plaintiff was involved in a motor vehicle accident which, she alleged, was caused by the negligence of drivers of vehicles owned by the Department of National Defence. It appears to have been common ground that the DND vehicles were owned by the federal government and as such were not required, by provincial law, to be insured under a motor vehicle liability policy. The plaintiff brought an application to determine whether s. 266(1) of the Insurance Act applied to her injuries and whether the DND vehicles were "automobiles" as defined in s. 224(1). She submitted that such vehicles were excluded from the definition of "automobile" in s. 224(1) because they did not have to carry insurance and that, because of such exclusion, the threshold provisions of s. 266(1) did not apply to her action. Hogg J. disagreed, and concluded that the DND vehicles were automobiles within the definition of s. 224(1) and that s. 266(1) applied to the plaintiff's injuries. In a brief endorsement, this court dismissed the plaintiff's appeal, saying: ... we agree with the motions judge that s. 266(1) of the Insurance Act applies to the injuries sustained by the appellant and that the vehicles involved in the accident are automobiles as defined by s. 224(1) of the Insurance Act. [34] By analogy, Jevco argued, the backhoe in the present case was an "automobile" even though it was not required to be insured under a motor vehicle liability policy. [35] Bergsma is very different from the present case. Although neither the reasons of Hogg J. nor the endorsement of this court indicates what types of DND vehicle were involved in the accident, the factums filed on the appeal indicates that the vehicles were trucks. A truck, in ordinary parlance, is an automobile6. One need not resort to the statutory definition of "automobile" in s. 224(1) to deem a truck to be an automobile, and the fact that the truck was not "a motor vehicle required under any Act to be insured under a motor vehicle liability policy" did not exclude it from being an automobile. In the present case, however, we are dealing with a backhoe, not a truck. In ordinary parlance, an automobile does not include a backhoe, so that if a backhoe is to fall within the definition of "automobile" as that term is used in s. 275 of the Insurance Act and in s. 9 of the automobile insurance regulation, it must fall within some enlarged statutory definition of that term. [36] In my view, it does not. [37] Unlike the Morton appeal, the Jevco appeal requires no canvass of the language of a policy of insurance. The narrow question in Jevco is whether Commercial Union is a second party insurer liable to indemnify Jevco under s. 275. Section 275 appears in Part VI of the Insurance Act. It provides that, in certain cases, the insurers of certain classes of automobiles must indemnify a first party insurer for no-fault benefits it has paid to its insured. If the backhoe is not an automobile, s. 275 does not apply. [38] I consider Regele to be dispositive of the question whether a backhoe is an automobile for the purposes of Part VI of the Insurance Act. If, as in Regele, a farm tractor is not an automobile for the purposes of s. 266 of the Insurance Act, neither, in my view, can a backhoe be an automobile for the purposes of s. 275. Since s. 275 applies only to "insurers of ... classes of automobiles", and since a backhoe is not an automobile within that section, Commercial Union cannot be obligated by s. 275 to indemnify Jevco. [39] There is a second reason why the Jevco appeal cannot succeed. Assuming, for the purpose of argument, that a backhoe is a class of automobile contemplated by s. 275, I agree with Hoilett J. that the operation of that section is excluded by s. 226(2) of the Insurance Act. That subsection makes Part VI inapplicable to "a contract providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act unless it is insured under a contract evidenced by a form of policy approved under this Part". A backhoe is not required to be registered under the Highway Traffic Act. The definitions section of that Act specifically excludes from the definition of "motor vehicle" any "road building machine", and the definition of "road building machine" in the same section specifically includes backhoes. The backhoe is not insured under a contract evidenced by a form of policy approved under Part VI. [40] I therefore conclude that, both because a backhoe is not an automobile for the purposes of Part VI of the Insurance Act and because, even if it is, the application of Part VI is specifically excluded by s. 226(2), Hoilett J. was correct in declaring that Commercial Union was not a "second party insurer" within the meaning of s. 275. Disposition [41] For these reasons, (a) I would allow the Morton appeal, set aside the order appealed from and substitute an order dismissing the action against Dominion. I would make no order respecting the costs of the action, the motion before Hermiston J. or the appeal to this court; and (b) I would dismiss the Jevco appeal, with costs. A note in closing [42] In my analysis, including my consideration of the decisions under appeal and of Bergsma, I have followed the approach of this court in Regele, that is, by considering the meaning of "automobile" first in ordinary parlance and then in the statutory definition in s. 224(1) of the Insurance Act and the provisions in other statutes to which that definition leads. [43] I confess to some misgivings about this process. Part VI of the Insurance Act represents the expression of a social policy adopted by the Legislature of this province to deal with automobile insurance. The resolution of cases that impact upon that policy would be better guided by reference not to ordinary parlance and not to a definitional labyrinth, but rather by clear legislative language that delineates the boundaries of the policy considerations sought to be achieved. [44] I am not alone in my discomfort. A number of judges and arbitrators have grappled with the definitions of "automobile" in s. 1 and s. 224(1) of the Insurance Act in an effort to distill an expression of legislative intent Some have sought to reach a result they considered to be fair by fastening on the use of "includes" instead of "means" in those sections. Others have sought to reach a result they considered to be fair by holding that the definition of "automobile" in s. 1 is not inconsistent with the definition of "automobile" in s. 224(1). Several have commented on the unfairness of excluding farm tractors and construction vehicles from the ambit of Part VI. The result is that the cases decided in this area of the law have gone in a number of different directions. [45] The definitive expression of legislative intent lies, of course, not with the courts but with the Legislature, and it would, in my respectful view, be helpful if the Legislature would turn its attention to the policy questions arising in these cases and would answer them with a clear, self-contained definition of "automobile" that reflects with precision the parameters of the social policy it is endeavouring to achieve. Released: December 10, 1998 Schedule A Statutory Provisions Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, as amended 1. (1) In this Act, ... "motor vehicle" has the same meaning as in the Highway Traffic Act and includes trailers and accessories and equipment of a motor vehicle; ... (2) An electric streetcar that runs on rails principally on a highway shall be deemed to be a motor vehicle for the purposes of this Act. ... 2. (1) Subject to the regulations, no owner 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. Highway Traffic Act R.S.O. 1990, c. H.8, as amended 1. (1) In this Act, ... "motor vehicle" includes an automobile, motorcycle, motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car, or other motor vehicles running only upon rails, or a motorized snow vehicle, traction engine, farm tractor, self-propelled implement of husbandry or road-building machine within the meaning of this Act; ... "road-building machine" means a self-propelled vehicle of a design commonly used in the construction or maintenance of highways, including but not limited to, (a) asphalt spreaders, concrete paving or finishing machines, motor graders, rollers, tractor-dozers and motor scrapers, (b) tracked and wheeled tractors of all kinds while equipped with mowers, post-hole diggers, compactors, weed spraying equipment, snow blowers and snow plows, front-end loaders, back-hoes or rock drills, and (c) power shovels on tracks and drag lines on tracks, but not including a commercial motor vehicle; Insurance Act R.S.O. 1990, c. I.8, as amended 1. In this Act, except where inconsistent with the definition sections of any Part, ... "automobile" includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft; ... PART VI -- AUTOMOBILE INSURANCE 224. (1) In this Part, "automobile", includes a motor vehicle required under any Act to be insured under a motor vehicle liability policy; ... 226. (1) This Part does not apply to contracts insuring only against, (a) loss of or damage to an automobile while in or on described premises; (b) loss of or damage to property carried in or upon an automobile; or (c) liability for loss of or damage to property carried in or upon an automobile. (2) This Part does not apply to a contract providing insurance in respect of an automobile not required to be registered under the Highway Traffic Act unless it is insured under a contract evidenced by a form of policy approved under this Part. (3) This Part does not apply to a contract insuring solely the interest of a person who has a lien upon, or has as security legal title to, an automobile and who does not have possession of the automobile. ... 265. (1) Every contract evidenced by a motor vehicle liability policy shall provide for payment of all sums that, (a) a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile; (b) any person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or the death of a person insured under the contract resulting from an accident involving an automobile; and (c) a person insured under the contract is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents, or to both the insured automobile and its contents, resulting from an accident involving an automobile, subject to the terms, conditions, provisions, exclusions and limits as are prescribed by the regulations. ... 266. (1) In respect of loss or damage arising directly or indirectly from the use or operation, after the 21st day of June, 1990, of an automobile and despite any other Act, none of the owner of an automobile, the occupants of an automobile or any person present at the incident are liablein an action in Ontario for loss or damage from bodily injury arising from such use or operation in Canada, the United States of America or any other jurisdiction designated in the Statutory Accident Benefits Schedule involving the automobile unless, as a result of such use or operation, the injured person has died or has sustained, (a) permanent serious disfigurement; or (b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature. (2) Subsection (1) does not relieve any person from liability other than the owner of the automobile, occupants of the automobile and persons present at the incident. ... 275. (1) The insurer responsible under subsection 268 (2) 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 it from 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. (2) Indemnification under subsection (1) shall be made according to the respective degree of fault of each insurer's insured as determined under the fault determination rules. (3) No indemnity is available under subsection (2) in respect of the first $2,000 of statutory accident benefits paid in respect of a person described in that subsection. (4) If the insurers are unable to agree with respect to indemnification under this section, the dispute shall be resolved through arbitration under the Arbitrations Act. (5) No arbitration hearing shall be held with respect to indemnification under this section if, in respect of the incident for which indemnification is sought, any of the insurers and an insured are parties to a mediation under section 280, an arbitration under section 282, an appeal under section 283 or a proceeding in a court in respect of statutory accident benefits. Automobile Insurance Regulation, R.R.O. 1990, Reg. 664, as amended 9.(1) In this section, "first party insurer" means the insurer responsible under subsection 268 (2) of the Act for the payment of statutory accident benefits; ... "second party insurer" means an insurer required under section 275 of the Act to indemnify the first party insurer. ... (2) A second party insurer under a policy insuring any class of automobile other than motorcycles, off-road vehicles and motorized snow vehicles is obligated under section 275 of the Act to indemnify a first party insurer, ... (3) A second party insurer under a policy insuring a heavy commercial vehicle is obligated under section 275 of the Act to indemnify a first party insurer unless the person receiving statutory accident benefits from the first party insurer is claiming them under a policy insuring a heavy commercial vehicle. Schedule B Standard Form Policy Provisions Standard Automobile Policy O.P.F.# 1 Part D - Uninsured Automobile Coverage 4.1 The insurer agrees to pay all sums that, 4.1.1 a person insured under the Policy is legally entitled to recover from the owner or driver of an uninsured automobile or unidentifed automobile as damages for bodily injury resulting from an accident involving an automobile; 4.1.2 any person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentifed automobile as damages for bodily injury to or the death of a person insured under the Policy resulting from an accident involving an automobile; and 4.1.3 a person insured under the Policy is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents, or to both the insured automobile and its contents, resulting from an accident involving an automobile. ... 4.2 For the purposes of this Part, ... 4.2.4 "uninsured automobile" means an automobile with respect to which neither the owner nor the driver thereof has applicable and collectible bodily injury liability and property damage liability insurance for its ownership, use or operation, but does not include an automobile owned by or registered in the name of the insured or his or her spouse. O.E.F. 44 - Family Protection Endorsement 1. Subject to section 2, in this endorsement, 1.1 "automobile" means a vehicle for which motor vehicle liability insurance would be required if it were subject to the law of Ontario ... 1.5 "inadequately insured motorist" means (a) the identified owner or identified driver of an automobile for which the total motor vehicle liability insurance or bonds, cash deposits or other financial guarantees as required by law in lieu of insurance, obtained by the owner or driver is less than the limit of family protection coverage; or (b) the identified owner or identified driver of an uninsured automobile as defined in Part D of the Policy; ... 3. In consideration of the premium indicated for this endorsement on the Certificate of Insurance, the insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile. _______________________________ 1 As appears below, the relevant policy and statutory provisions are set out in Schedules to these reasons. 2 Section 275 is in Part VI of the Insurance Act. It refers, in turn, to "the regulations" and is specifically cross- referenced in s. 9 of Regulation 664, "Automobile Insurance": see R.R.O. 1990, Reg. 664. 3 The particular section in Part VI under consideration in Regele was s. 266, which provides that none of the owner of an automobile, the occupants of an automobile or any person present at the incident are liable in an action in Ontario for loss or damage arising directly or indirectly from the use or operation of the automobile except in narrowly defined circumstances. 4 There are, as well, other statutes that require motor vehicles to be insured under a motor vehicle liability policy: see the Motorized Snow Vehicles Act, R.S.O. 1990, c. M-44 and the OffRoad Vehicles Act, R.S.O. 1990, c. O-4. Both statutes require the driver of such vehicles to be insured under a motor vehicle liability insurance policy in accordance with the Highway Traffic Act: see Motorized Snow Vehicles Act, s. 12 and Off-Road Vehicles Act, s. 15. 5 As defined in the Highway Traffic Act, "motor vehicle" does not include a road-building machine which, in turn, is defined to mean "a self-propelled vehicle of a design commonly used in the construction or maintenance of highways, including but not limited to ... backhoes". 6 Judicial acknowledgment that a truck is an automobile in ordinary parlance appears in Life & Casualty Ins. Co. v. Cantrell (1933), 57 S.W.2d 792 (Sup.Ct.Tenn.); Wiese v. Polzer (1933), 248 N.W. 113 (Sup.Ct.Wisc.); Combined American Insurance JCompany v. Ganzer (1961), 350 S.W.2d 211 (Ct.Civ.App.Tex.)