Jan 16, 2019
Ont. Super. Ct. finds OPCF 44R covers injured spouse where covered vehicle was available for use
Author Michael S. Teitelbaum
In Murphy v. Aviva Insurance Co., Ontario Superior Court Justice Morgan found that an automobile insurance policy issued to the employer of one of the plaintiffs provided coverage to the plaintiffs in respect of a vehicle/pedestrian accident.
His Honour explained that the injured pedestrian plaintiff was struck by a stolen vehicle. The defendant driver of that vehicle was being pursued by a Toronto police officer on a motorcycle at the time of the collision. The driver has not defended the action and has been noted in default, and the vehicle's owner has been released from the action.
At the time of the accident, the injured plaintiff's spouse was employed as a delivery van driver. He was the company’s sole delivery driver, and the company van was available to him for deliveries on a daily basis throughout the work day. Aviva provided automobile insurance coverage to the company. The policy had a third party liability limit of $1,000,000, and included an OPCF 44R Family Protection Change Form.
 Sections 1.6(b) and 2 of the OPCF 44R form provides:
1.6 “insured person” means…
(b) if the named insured is a corporation, an unincorporated association, partnership, sole proprietorship or other entity, any officer, employee or partner of the named insured for whose regular use the described automobile is provided and his or her spouse and any dependent relative of either, while…
(iii) not an occupant of an automobile, who is struck by an automobile…
His Honour noted that this wording is "strikingly similar to that contained in section 66 of O. Reg. 403/96 (Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996) with respect to corporate and rental vehicles, and there are several reported decisions relating" to that regulation.
The issue in respect of OPCF 44R was whether at the time of the accident the injured plaintiff's spouse had access to the delivery van “for whose regular use the described automobile is provided”. And, the issue in respect of O. Reg 403/96 was whether at the time of the accident the employer’s “insured automobile is being made available for the individual’s regular use”.
Thus, in determining whether Ms. Murphy is an “insured” under thepPolicy is whether the employer made its delivery van available to the spouse for his regular use at the time that the injured plaintiff was struck by the car. If so, Aviva’s coverage would apply.
His Honour reasoned in part:
 On the day of the accident, Emblem Flowers opened for business as usual at 9:00 a.m. Mr. Hogan had a flexible schedule, although it was understood that he would regularly arrive at work by 9:30. Mr. Hogan was not required or expected to seek permission from anyone at Emblem Flowers during business hours to take the van’s keys off the hook where they were stored or to drive the van in order to make the daily deliveries. He did so at his own discretion.
 The precise time of Mr. Hogan’s arrival at work on the morning of September 25, 2014 is not certain, although it was likely sometime around 9:30. Mr. Hogan’s memory is that he was just arriving at work on his bicycle that morning when he received a phone call on his cell phone advising him that Ms. Murphy had been injured in an accident. As counsel for Aviva points out, the implication of that is that the accident actually occurred sometime just prior to Mr. Hogan arriving at work.
 My first observation is that this case is not analogous to those where the claimant was involved in an accident while using a company vehicle for personal use outside of business hours or outside of work. The essence of those decisions is that the employee had signed off work for the day and the vehicle was being driven on non-employment time: see Re Cooperators General Insurance Co and Dominion of Canada General Insurance Co., 2014 CarswellOnt 7179, Dominion of Canada Insurance Co v Zurich Insurance Co, 2013 CarswellOnt 19135, TD Insurance Co v Dominion of Canada General Insurance Co, 2017 CarswellOnt 19974.
 Those cases are distinct from situations where the accident occurred during business hours, when the vehicle was available for work but the employee was not using it at the time. A number of examples of this variety are discussed in ACE INA Insurance v Cooperators General Insurance Co.,  OJ No 1276, where Belobaba J. posited several hypotheticals that are more closely analogous to the situation in the case at bar. For example: a) the employee is driving the company vehicle during work hours but stops for a coffee and gets hit while a pedestrian; b) the employee has taken the company car home and is in an accident in another person’s car while the company car is sitting in his driveway; and c) the employee walks across the street from his place of employment to get a coffee before starting his deliveries: Ibid., at paras 18, 23.
 Counsel for Aviva takes issue with an analogy between those situations and the one here. He points out that in each of Justice Belobaba’s scenarios the employee was actually at work during work hours or was permitted use of the employer’s vehicle after hours. In the present case, Mr. Hogan was on the way to work, but not actually at work, at the time of the accident, and was not authorized to use the delivery van when he was not at work. He was neither using the car nor had it in his possession in the sense of parking it for a coffee break at the crucial time.
 While I see the factual distinction stressed by Aviva’s counsel, I am not convinced that it is a distinction with a legal difference. In my view, the most closely analogous case is that of Intact Insurance Co. v Old Republic Insurance Co., 2016 CarswellOnt 7645 (SCJ). There the claimant was a short-haul truck driver who was authorized to come and go and take the keys for driving the truck without asking permission from his employer, and was also was permitted to sleep in the employer’s work vehicle in order to start his deliveries first thing in the morning. In a well-reasoned judgment, Goldstein J. indicated that for coverage to apply the claimant need not be using the vehicle at the time of the accident, but must be “in a position” to use the insured vehicle. As he put it, at para 48, “[The plaintiff] could have taken the bus to the yard the night before and slept in the truck – which means he had the vehicle available at the time of the accident. This was the case even though he was not in it and was a few minutes away from work.” [emphasis added]
 As was the case in Old Republic, the Emblem Flowers van was available for Mr. Hogan’s use at the time of the accident. Mr. Hogan could have arrived at 9:00 that day – i.e. the time that Emblem Flowers opened – and taken the keys and van and started his deliveries. While Mr. Hogan did not use the van for personal use, or sleep in it, or drive it outside of work hours, he had full, discretionary access to the van when the employer’s shop was open for business. In this sense, the insured vehicle was being provided for his use at the time that Ms. Murphy was struck, even though he was not in it and was a few minutes away from work.
 The agreed statement of facts indicates that the accident occurred just before 9:30 and that Emblem Flowers had been open since 9:00. The claimant in the Old Republic case could have slept in the van and started his deliveries first thing in the morning of the accident, even though he didn’t; in much the same way, Mr. Hogan could have arrived at 9:00 when the shop opened and started his deliveries first thing in the morning of the accident, even though he didn’t. The fact that Mr. Hogan did not arrive early does not negate the fact that the company vehicle was available for his use as of 9:00 and the accident happened at about 9:30.
 I find that section 1.6(b) of the OPCF 44R form is a clause providing coverage for the injuries sustained by Ms. Murphy. Aviva is therefore required in the circumstances to cover the Plaintiffs under the Policy.