Court of Appeal Decision of the Week

Incident Deemed “Accident” under SABS: Court of Appeal

Case: Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (CanLII)

Keywords: Accident; Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS”); Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405

Synopsis:

The respondent attends a country music jamboree in Bothwell, Ontario along with his wife and two daughters. He detaches his camping trailer; parks alongside other cars and trailers in the shape of a horseshoe on a campsite. A space between the respondent’s truck and another trailer is left as a walkway for campers.

More campers arrive on motorcycles, parking on the site where the respondent’s family was camped. After nightfall, and without the respondent’s knowledge, these motorcycles are relocated to the walkway. Around midnight, the respondent – now intoxicated – is playing tag with his daughter near the parked truck. As the respondent proceeds through the walkway (which had been a clear pathway for campers), he trips over one of the parked motorcycles and is propelled forward into his truck. The respondent sustains serious spinal cord injuries in the incident.

The application judge, Nightingale J., finds temporary parking of the motorcycle on the walkway constitutes both “an ordinary or well-known use of the vehicle” and “…the dominant feature in the incident and not simply ancillary to it”. Accordingly, the application judge concludes the incident satisfied the test for an “accident” under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS”), as described by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405.

The appeal is limited to the following submission: did the application judge err in concluding the “purpose test” contained in Amos is met in the circumstances (was the incident in question really an “accident”)? Hourigan J.A., writing for the Court of Appeal finds the respondent was involved in an accident as that term is defined in the SABS and dismisses the appeal with costs of $15,000 to the respondent.

Importance:

The term “accident” is defined in s. 3(1) of the SABS as follows:

An incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

In Amos, at para. 17, the Supreme Court provided a two-part test for interpreting s. 3:

  1. Did the accident result from the ordinary and well-known activities to which automobiles are put?
  2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant’s injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

This two-part test summarizes the case law interpreting the phrase “arising out of the ownership, use or operation of a vehicle”, and encompasses both the “purpose” and “causation” tests posited in the jurisprudence. [Emphasis in original]

Citing Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) and Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19 (CanLII), the Court found the “causation test” was modified. As such, an insured must:

  1. establish that the use or operation of an automobile was the cause of the injuries; and
  2. satisfy the court there was no intervening act(s) that resulted in the injuries that cannot be said to be part of the “ordinary course of things”.

In other words, the question (under the causation test analysis) is whether it could be said the use or operation of the vehicle was a “direct cause” of the respondent’s injuries.

As per the purpose test, the Court of Appeal held the “sole question” is whether the incident in issue resulted from ordinary and well-known activities to which an automobile is put.

The appellant argued the judge erred by failing to conclude there must be an active use of the vehicle to meet the purpose test component of Amos. In other words, the parked motorcycle was “nothing more than the venue for the incident, in the same way a tree trunk would be if someone tripped over it” (see para. 19).

For the Court of Appeal, parking a vehicle is not “aberrant” to its use as a vehicle (as per Binnie J. in Amos at para. 19). After all, says Hourigan J.A., “A vehicle is designed to be parked. Indeed, it is safe to say that most vehicles are parked the most of the time. I would conclude, therefore, that parking a vehicle is an ordinary and well-known activity to which vehicles are put” (at para. 17).

Moreover, while the active use of the motorcycle certainly would qualify under the test, the Court of Appeal held there is no requirement that the vehicle be in active use for an incident to count as an accident under the SABS.

While Hourigan J.A. agreed with the result and general conclusions of the application judge below, he found the following errors in the analysis:

  1. the purpose test is not designed to determine whether a vehicle is involved in an incident (see Economical Mutual Insurance Company v Caughy, 2015 ONSC 3251 (CanLII) at para. 18); and
  2. it is inappropriate to rely on the liability sections of the Ontario Automobile Policy (O.A.P. 1) in support of the analysis (see Economical Mutual Insurance Company v Caughy, 2015 ONSC 3251 (CanLII) at para. 17).

Counsel for the Appellant: Daniel Strigberger and Alexandra Wilkins (Samis & Company, Toronto)

Counsel for the Respondent: Nigel Gilby, Jasmine Akbarali, and Christopher Dawson (Lerners LLP, Toronto)

Posted: Tuesday, March 29, 2016