Intact Insurance Company v. Carpenter, 2026 ONSC 1443
This appeal and Judicial Review arose from a LAT decision in favour of the Insured who stepped into the path of a Caterpillar small wheel end loader driving on a municipal road, on its way to clear snow and the Reconsideration of that decision. The Insured’s entitlement to benefits turned on whether the wheel end loader (“the vehicle”) qualified as an “automobile” in which case, the driver’s automobile insurance applied. This determination was to be made under a three part test, the first part of which asked whether the vehicle could be defined as an automobile “in ordinary parlance.” If not, two further tests were to be considered, the third of which was ““does the vehicle fall within any enlarged definition of “automobile” in any relevant statute?” The Insured conceded in written argument that the vehicle “would not normally be considered to be an automobile in ordinary parlance” but went on to set out an argument under the third part of the test that, in fact, was much more supportive of a finding under the first test, that the vehicle was an automobile in ordinary parlance. The Insurer, relying on the Insured’s concession that the wheel end loader was not an automobile in ordinary parlance, submitted no argument on this point and focused its argument on part three of the test. The LAT found that the vehicle was an automobile in ordinary parlance under the first test and that there was no need to consider the other two tests. The Insurer made a Reconsideration request on the basis of that the LAT had made a material error of law or materially breached procedural fairness by failing to request submissions from the Insured before proceeding to apply the first test, when it was clear that the Insured had not made such submissions in reliance on the Insured’s concession. The Divisional Court found that the LAT had the discretion to ignore the Insured’s concession and to make a finding on part one of the test but that to do so without first giving an opportunity to the Insurer to make submissions on this issue was a breach of procedural fairness. The decision was set aside and sent back to a new LAT panel.