Short answer: NO
Details
Hruska v. Bridges Golf Club Ltd. et
al. , 2010 MBQB 191
- Special Case pursuant to Manitoba Court of Queen's Bench Rule
22.01(1):
- Question of Law
- 22.01(1) Where the parties to a proceeding concur in stating a
question of law in the form of a special case for the opinion of
the court, any part may move before a judge to have the special
case determined
- Question to be determined:
-
- Whether on the facts agreed to between the parties, sections
71 and 72 of the MPIC Act operated to bar the plaintiff's civil
claim against the defendants, leaving the plaintiff to the remedies
under the MPIC Act.
Facts:
- Plaintiff was a passenger in a golf cart driven by the Third
Party while at the Defendants' premises;
- As golf cart was being operated, Plaintiff suffered an injury
to his right leg;
- Plaintiff initiated a claim against the Defendants alleging
negligence;
Defendants denied negligence and took position that injury was
covered by Part II of theMPIC Act:
- No tort actions
- 72 Notwithstanding the provisions of any other Act,
compensation under this Part stands in lieu of all rights and
remedies arising out of bodily injuries to which this Part applies
and no action in that respect may be admitted before any
court.
- Plaintiff applied to MPIC for no-fault benefits and was
denied:
"… As your injuries were caused by the use of a golf cart as
defined in the Off-Road Vehicles Act youare not entitled to
coverage under PIPP"
"… PIPP does contain some special
provisions but, essentially, it covers only injuries caused by
vehicles capable of being registered and insured as motor vehicles
in the Province of Manitoba. A golf cart is not such a vehicle,
…"
At the time, section 71 of the MPIC Act read as follows:
- 71(1) This Part applies to any bodily injury suffered by a
victim in an accident that occurs on or after March 1, 1994.
- 71(2) Notwithstanding subsection (1), this Part does not apply
to bodily injury that is
a.
caused,while the automobile is not in motion on a highway, by, or
by the use of, a device that can be operated independently and that
is mounted on or attached to the automobile;
b. the
result of an accident that is caused by a farm tractor, other than
a farm tractor that is required to be registered as a motor vehicle
under The Drivers and Vehicles Act, and that occurs off a highway,
unless an automobile in motion is involved in the accident;
c. caused
by
- a self-propelled implement of husbandry, as defined in The
Highway Traffic Act,
- a motorized mobility aid, as defined in The Highway Traffic
Act;
- special mobile machine, as defined in The Highway Traffic
Act,
- a snow vehicle, as defined in The Highway Traffic Act, other
than a snow vehicle capable of being registered under The Drivers
and Vehicles Act, or
- an off-road vehicle as defined in The Off-Road Vehicles
Act,
- unless an automobile in motion is involved in the
accident;
....
Therefore, if injury to the Plaintiff fell within s. 71(1) and
not included under s.71(2), action against Defendant could not
proceed (s. 72) and was restricted to MPIC benefits.
MPIC's Position:
- Never the intention of the Legislature to extend coverage to
vehicles that could not be registered or insured under the MPIC
Act, which golf carts could not be.
- Does not fall under definition of "automobile" under Part II of
MPIC Act
- Golf carts could not be considered "vehicles" under Highway
Traffic Act, as that Act requires numerous safety features not
found on a golf cart.
- Golf carts never designed to be used on a highway.
Defendants' Position:
- Injuries were result of accident caused by automobile,
therefore s. 71(1) applies.
- Just because a vehicle cannot be registered or insured under
the MPIC Act does not mean that coverage for injuries must be
denied.
Decision:
- Broad definition of "automobile" in Part II of MPIC Act to be
used for calculation of no-fault benefits (different than purposes
of registration and insurance);
- Golf cart fit in definition of "automobile":
- May be transported on a highway;
- Powered by an electric battery, therefore, self-propelled
- No exclusions in s. 71(2) applied
- Therefore, on plain reading of the legislation, bodily injury
to Plaintiff caused by an accident involving an automobile as
defined in Part II of the MPIC Act. The Plaintiff's action against
the Defendants was statute barred pursuant to s. 72 and entitled to
no-fault benefits under the MPIC Act.
S.71(2) of the MPIC Act amended:
Bodily injury to which Part 2 does
not apply 71(2) Notwithstanding subsection (1), this Part does not
apply to bodily injury that is
…
(b) the result of an accident that is caused by one of the
following:
…
(v) a golf cart,
…
For more information, please contact:
Celia Ferguson
Fillmore Riley LLP
Winnipeg