Is a school bus company making a bus available for an employee driver’s regular use “at the time of the accident”, if she is not allowed to use the bus at the time of an accident?
In TD Insurance v. Dominion, the claimant worked for a school bus company, providing pick-up and drop off services before and after school. The school bus company operated during school hours, Mondays to Fridays. The company was closed on weekends.
On an unfortunate Sunday afternoon, the claimant was visiting a relative and was injured between two cars. She applied for accident benefits to TD Insurance, who was one of the insurers of a vehicle involved in the accident. TD brought a priority dispute against Trafalgar Insurance (the other insurer of a vehicle involved in the accident) and Dominion, the insurer of her school bus.
The claim against Dominion was based on the regular use provisions under the policy, which states that a person is deemed to be the named insured under a policy insuring a vehicle if, at the time of the accident, a company is making the vehicle available for her regular use.
The evidence was that the school bus driver was allowed to bring the bus home and park it on her driveway, which she did. She was allowed to use the bus for personal use between her morning and afternoon runs. But she was not allowed to use the bus at all after business hours and, particularly, on weekends when schools were closed.
At the time of the Sunday accident, the school bus was parked at her home. The evidence was that all drivers of this school bus company were not allowed to use any buses on Sundays. The wheels on the bus were not going round and round. The horn on the bus was silent. The wipers did not go swish swish swish. The people on the bus did not go up and down (because there were no people on the bus). On her driveway. Not all over town.
The arbitrator found that at the time of the accident, the school bus company was not making a bus available for the claimant’s use because, quite to the contrary, she was not allowed to use the vehicle on a Sunday. She found that the phrase “being made available” by a company required an act or active attention on the part of company to make the vehicle available.
On appeal, the Superior Court found that the arbitrator’s decision was reasonable and consistent with existing case law on regular use. The judge held:
In her decision, the Arbitrator considered the language of the statutory provision, the case law interpreting the provision, and the circumstances of Ms. Singh’s accident. Her conclusion that the school bus was not made available to Ms. Singh for regular use at the time of the accident and that, therefore, she was not a named insured pursuant to s. 3(7)(f)(i) of the SABS, was reasonable. Given the deference that must be accorded to the decision of an arbitrator interpreting her home statute in determining a priority dispute, I find no basis on which to disturb the Arbitrator’s decision.
The appeal decision is another example of how the courts are giving arbitrators deference and are becoming more reluctant to interfere with arbitration decisions. This highlights how important it is these days for insurers to win at the arbitration level.
See TD Insurance Company v. Dominion of Canada General Insurance Company, 2018 ONSC 2594 (CanLII)
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