IN THE MATTER OF a dispute between Canadian General Insurance Company and Axa Insurance Company pursuant to Regulation 283/95 under the Ontario Insurance Act, R.S.O. 1990, C. 1-8 as amended

AND IN THE MATTER OF an arbitration pursuant to the
Arbitration Act, S.O. 1991

BETWEEN:

CANADIAN GENERAL INSURANCE COMPANY Insurer - and - AXA INSURANCE COMPANY Insurer

AWARD

The issue in this Arbitration is which of Canadian General Insurance Company or Axa Insurance Company is obligated to pay Statutory Accident Benefits to Abdul Ghafar AlHemed as a result of a motor vehicle accident which occurred on August 29, 1995.

Mr. Al-Hemed was operating his bicycle southbound on St. Laurent Boulevard in Ottawa and while changing lanes "he rode into the rear right passenger door of a vehicle operated by Kyle Robert Moffat". The wording quoted is taken from paragraph 3. of the Agreed Statement of Facts. Similar wording is contained in paragraph 5. of the Agreed Statement of Facts which paragraph starts "After riding into the Moffat motor vehicle". The Moffat vehicle was insured by Canadian General Insurance Company.

After the impact with the Moffat vehicle, Mr. Al-Hemed fell to the ground in front of a vehicle operated by Ljubica Mlikan. According to the Agreed Statement of Facts, Mr. Al-Hemed "was then contacted by the motor vehicle as it braked hard". The Mlikan motor vehicle was insured by Axa Insurance Company.

The police accident report indicates as follows: "Cyclist made unsafe lane change from curb lane to middle lane. It struck V2 (Moffat vehicle) and was in turn hit by V3 (Ljubica Mlikan)".
A statement taken by the Ottawa-Carleton Regional Police Service from Jean Guilbeault indicates that the front tire of the Al-Hemed vehicle touched the Moffat vehicle and that". Al-Hemed then fell in front of the vehicle and was struck by it. A more comprehensive statement taken from the same witness indicates that Mr. Al-Hemed struck the right rear side of the Moffat vehicle and was then struck by the Mlikan vehicle.
A statement taken by the same police force from Douglas Laub indicated that Mr. AlHemed ran into the Moffat vehicle and then fell in front of the Mlikan vehicle.

It appears clear from the police report and the witness statements and the Agreed Statement of Facts that Mr. Al-Hemed operated his bicycle such as to strike the rear right passenger door of the Moffat vehicle. He then fell to the ground and was struck by the Mlikan vehicle.

Section 268(2) of the Insurance Act, R. S. O. 1990, chapter 1.8 sets out the rules to be applied in order to determine which insurer is liable to pay Statutory Accident Benefits. Sub-Section 2. of Section 268(2) sets out the rules to apply in connection with non-occupants, such as Mr. Al-Hemed.

As set out in the Agreed Statement of Facts. Al-Hemed was "not a named insured under any known policy of insurance". Accordingly, under paragraph 268(2)2.1, Mr. AlHemed did not have recourse against the insurer of an automobile in respect of which he was an insured.

Section 268(2)2.li sets out that "if recovery is unavailable under subparagraph 1, the non-occupant has recourse against the insurer of the automobile that struck the nonoccupant".
Accordingly, if Mr. Al-Hemed was struck by an automobile, his recourse for payment of Statutory Accident Benefits would be against the insurer of the automobile that struck him.

Having heard the submissions of counsel for both parties, I have reached the conclusion that Mr. Al-Hemed was not struck by the Moffat vehicle. In interpreting legislation, a Court or Arbitrator must look to the ordinary meaning of the word used in the legislation. Having considered the various dictionary definitions offered by both counsel, it appears clear to me that the ordinary meaning of the word "struck" is hit, crash into, deal a blow to and other similar words.

In this case, the Moffat vehicle did not strike. Al-Hemed. Rather, it was Mr. Al-Hemed who rode into or struck the Moffat vehicle.

My decision as to the meaning of the word "struck" and the resulting effect of my interpretation of Section 268(2)2.11 is in keeping with the Decisions in Re Strum and Cooperators Insurance Association, (I 973) 2 0. R. (2d), 70, Re MacGillivray (I 975) 1. L. R. I 695 and Ezard v. Warwick, et al (I 979) 25 O.R. (2d), 577 (CA) and Wells v. Metropolitan Insurance Company, et al (1989) I.L.R- 1-2437. In all of those cases, the Courts determined that the strikng motor vehicle was primarily liable to pay. Those Courts followed the transmittal of force principle. In the Re Strum Decision, a car struck a street sign which in turn hit a pedestrian and the insurer of the vehicle was required to pay accident benefits. In Re MacGillivray, a pedestrian stood between two vehicles. When a third vehicle struck one of the vehicles and propelled it into the pedestrian, it was the insurer of the third vehicle that was found to be responsible for the payment of accident benefits. In Ezard, two vehicles were in a collision and a passenger in the lead vehicle stepped out and became a pedestrian. When a third vehicle struck the second vehicle and pushed it into the pedestrian, it was the insurer of the third vehicle that had to respond to pay accident benefits. In the Wells case, the striking vehicle was primarily liable to pay accident benefits.

In this case, the Moffat vehicle did not strike Mr. Al-Hemed. The only vehicle that struck Mr. Al-Hemed was the Mlikan vehicle. Based on my interpretation of the facts and the law, it is the insurer of the vehicle, Axa Insurance Company, that should respond to pay benefits under the Statutory Accident Benefits Schedule in this case.

In reaching my Decision, I also considered what the result would have been had Mr. Al-Hemed simply ridden into the Moffat vehicle without having been struck by the Mlikan vehicle. If those were the facts, Mr. Al-Hemed's recourse against the insurer of the Moffat vehicle would not have been by reason of his having been struck by the Moffat vehicle. His recourse would not be under Section 268(2)2.li of the Insurance Act.

Rather, in that situation, his recourse against the insurer of the Moffat vehicle would have been under Section 268(2)2.iii of the Insurance Act, i.e. "recourse against the insurer of any automobile involved in the incident from which the entitlement to no-fault benefits arose". In reaching this Decision, I make no finding on the basis of fault, and I fully accept that one insurer cannot subrogate against another.

I am simply applying the ordinary meaning of the word "struck" to give effect to the clear wording in Section 268(2)2.ii.

Although my interpretation may seem to be unfair to Axa Insurance Company in this particular case, in the whole scheme of things, so long as the same interpretation is given effect to by all insurers, the responsibility of insurers to pay or not to pay in a particular scenario will average out.

Since it appears that the Section in question has not been interpreted previously, it is ordered that the fees and expenses of the Arbitrator be equally shared by the two insurers and that neither insurer recover costs of the Arbitration.

Released October 21, 1996 at Toronto.

Stephen M. Malach, Q. C.