Highlights of Noteworthy Decisions

Decision 229 23
A. Patterson
  • Statutory interpretation (principles of) (ambiguity)
  • Supplier of motor vehicle, machinery or equipment (purchase or rental basis)
  • Right to sue (gross negligence)

In this right to sue application, the defendants sought a declaration and order to bar the plaintiff from commencing a civil action against the defendants for damages arising from an accident which occurred on February 21, 2013. In February 2013, the plaintiff attended a retreat organized by the interested parties. One of the activities at the retreat was a snowmobile ride. The snowmobiles were rented from the defendant company. The co-defendant provided a verbal explanation and visual demonstration of their operation, and explained the rules pertaining to use of the public trail. While on the public snowmobile trail, the plaintiff lost control of the vehicle, crashed into a tree, and suffered personal injuries.

The application was denied. The subsection 28(4) exception was determined to be applicable. This subsection reads as follows: "(4) Subsections (1) and (2) do not apply if any employer other than the worker's employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment."
The plaintiff/respondent's representative argued that a plain wording interpretation of subsection 28(4) supported its application to the facts of this appeal. The snowmobile had been supplied on a rental basis without also supplying a worker to operate it. It was conceded by the defendants/applicants that a snowmobile constituted a "motor vehicle, machinery or equipment" and that "an employer other than the worker's employer" supplied the snowmobile. In addition, although the co-defendant was arguably a worker, he was not supplied to operate the snowmobile rented to the plaintiff (who was the sole operator), and was seated on and in control of a different snowmobile at the time of the accident.
The Vice-Chair noted that there was no Tribunal case law specific to guided tours or similar equipment rental situations, and that this decision fell in a grey area which had not been specifically contemplated by the legislature. However, the Vice-Chair noted that the rental of motor vehicles, equipment or machinery for leisure, business, construction or other purposes is commonplace in Ontario, and would not be an ambiguous situation which the legislature failed to consider. The Vice-Chair found that the grammatical and ordinary sense of the terms of the subsection should apply. As such, the subsection 28(4) exception to the statutory bar for civil actions was determined to be applicable to the facts of this appeal.