COURT OF APPEAL FOR ONTARIO
Simmons, Paciocco and Osborne JJ.A.
BETWEEN
Chi Khai Diep, by his Litigation Guardian Maranda Diep, Ailan Huynh, Maranda Diep, personally and Mariah Diep
Plaintiffs (Respondents)
and
Mac's Convenience Stores Inc., Esso of Canada Limited, 2117240 Ontario Ltd.*, and Vitor Cordeiro Operating as Custom Snowplowing and Maintenance
Defendants (Appellant*)
AND BETWEEN
Chi Khai Diep, by his Litigation Guardian Maranda Diep, Ailan Huynh, Maranda Diep, personally and Mariah Diep
Plaintiffs (Respondents)
and
Mac's Convenience Stores Inc., Esso of Canada Limited, 2117240 Ontario Ltd., and Vitor Cordeiro Operating as Custom Snowplowing and Maintenance*
Defendants (Appellant*)
David Zarek and Yalda Aziz for the appellants, 2117240 Ontario Ltd (COA-25-CV-0612)
C. Kirk Boggs and Pino Cianfarani, for the appellants, Vitor Cordeiro Operating as Custom Snowplowing and Maintenance (COA-25-CV-0737)
Alexander M. Voudouris and Tanner Blomme, for the respondents, Chi Khai Diep, by his Litigation Guardian Maranda Diep, Ailan Huynh, Maranda Diep, personally and Mariah Diep
Rita V. Bambers, Timothy Gindi and Chloe Holmes, for the respondent, Ontario Health Insurance Plan
Heard: February 23, 2026
On appeal from the order of Justice Myrna L. Lack of the Superior Court of Justice, dated April 30, 2025
I. OVERVIEW
1In December 2017, the respondent, Chi Khai Diep, suffered serious injuries when he slipped and fell on ice or snow while reaching for the door handle of his vehicle, which he had parked in a convenience store parking lot in Markham (the “Parking Lot”).
2Mr. Diep applied to his automobile insurer, Wawanesa Mutual Insurance Company, for statutory accident benefits (“SABs”).1 Wawanesa denied his claim. A Licence Appeal Tribunal (“LAT”) adjudicator subsequently found that Mr. Diep had been involved in an “accident” as defined in the Statutory Accident Benefits Schedule2(the “SABs Schedule”) and that he was therefore entitled to SABs from Wawanesa.3 Under the SABs Schedule “accident” means “an incident in which the use or operation of an automobile directly causes an impairment”.
3In December 2019, Mr. Diep sued the appellants, claiming that 2117240 Ontario Ltd. (“211”) owned the Parking Lot and that Vitor Cordeiro, operating as Custom Snowplowing and Maintenance provided winter maintenance for the Parking Lot. Mr. Diep’s claims against the appellants are for negligence in failing to properly maintain the Parking Lot and for liability under the Occupiers Liability Act.4 Mr. Diep also advanced a claim in his action for all amounts for which the Ontario Health Insurance Plan (“OHIP”) has a subrogated interest.
4In November 2024, the appellants each brought a motion under rule 21.01(1)(a)5 of the Rules of Civil Procedure6seeking, essentially, determinations that: i) under s. 267.8 of the Insurance Act7, any damages awarded against them must be reduced by the SABs Mr. Diep receives, and ii) s. 30(5) of the Health Insurance Act8 (the “HIA”) precludes OHIP’s rights of subrogation.
5The motion judge did not grant the orders the appellants requested. Instead, she determined, in effect, that any damages awarded against the appellants should not be reduced by SABs received by Mr. Diep because his claim against them “is not an action for loss or damage from bodily injury arising directly or indirectly from the use or operation of an automobile under s. 267.8 of the Insurance Act”. She also determined that OHIP’s subrogated claims under s. 30(1) of the HIA are not precluded by s. 30(5) because the loss that OHIP claims “does not arise directly or indirectly from the use or operation of an automobile” as required under that section. In the alternative, she found that neither of the appellants were insured under “a motor vehicle liability policy issued in Ontario” as required under s. 30(5).
6The appellants submit that the motion judge made several interrelated errors, which I have organized as follows:
(1) Did the motion judge err by disregarding binding decisions of this court in El-Khodr v. Lackie, 2017 ONCA 716, 139 O.R. (3d) 659, and Ontario (Ministry of Health and Long-Term Care) v. Georgiou, 2002 CanLII 45036 (ON CA), 61 O.R. (3d) 285 (C.A.), which hold, respectively, that:
the purpose of s. 267.8 of the Insurance Act is to codify the common law principle that a plaintiff should not recover twice for the same kind of loss arising from the same incident in any related tort litigation; and
that s. 267.8 and s. 30(5) of the HIA require factual determinations and are not concerned with the cause of action pleaded?
(2) Did the motion judge err by failing to consider all the purposes of s. 267.8 of the Insurance Act and by allowing Mr. Diep to receive double recovery?
(3) Did the motion judge err by embarking on her own analysis of a previously decided issue; by failing to apply the principles underlying the doctrines of issue estoppel, collateral attack, and abuse of process; and by failing to conclude that Mr. Diep is estopped from taking an inconsistent legal and factual position in this litigation?
(4) Did the motion judge err in holding that neither of the appellants are insured under a motor vehicle liability policy issued in Ontario as required under s. 30(5) of the HIA?
7The appellants also seek to admit fresh evidence on appeal concerning the insurance policies under which they were covered when Mr. Diep fell.
8For the reasons that follow, I would dismiss the appeal. As I would not give effect to the appellants’ first three grounds of appeal as articulated above, it is unnecessary that I address their fourth ground of appeal, which relates to the motion judge’s alternative finding, or the fresh evidence issue. I would therefore dismiss the fresh evidence motion.
II. Background
1. The incident
9As permitted under rule 21.01(2)(a)9, the motion proceeded based on a Statement of Agreed Facts (“SAF”). The SAF specified that on or about December 28, 2017, Mr. Diep parked his vehicle at a parking lot located at an address in Markham. The SAF set out the following additional agreed facts concerning the incident:
[a]fter purchasing lottery tickets from a Mac’s Convenience Store, [Mr. Diep] returned to his vehicle;
[w]hile intending to enter his vehicle after unlocking the car using a key FOB, [Mr. Diep] slipped on snow or ice and fell to the ground causing severe injuries. [Mr. Diep] fell while reaching for the door handle;
[Mr. Diep] sought and received accident benefits through his motor vehicle insurance carrier, Wawanesa Mutual Insurance Company;
[Mr. Diep] also received medical care and treatments funded by the Ontario Health Insurance Plan (OHIP);
[a]t all material times, [the appellant, Victor Cordiero] was covered under a Commercial General Liability insurance policy provided by Gore Mutual Insurance Company ... which contained SPF-6 and SEF-94 endorsements;
at all material times, [the appellant, 2117240 Ontario Ltd.] was covered under a policy of insurance provided by Aviva Insurance Company of Canada … which contained an SPF-6, SEF-94 and OEF-98B endorsements.
2. The relevant statutory provisions
a. The SABs Schedule
10To qualify for SABs under the SABs Schedule, a person must have been involved in an “accident”. Section 3 of the SABs Schedule defines an accident, in relevant part, to mean “an incident in which the use or operation of an automobile directly causes an impairment”.10
b. The Insurance Act
11The question of whether any damages awarded against the appellants must be reduced by SABs received by Mr. Diep is governed largely by ss. 267.8 (1), (4) and (6) of the Insurance Act.11 Each of these sections provides, in relevant part:
In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for [various losses12] shall be reduced by [SABs payments received by the plaintiff before trial13].
c. The Health Insurance Act
12Section 30(1) of the HIA provides that OHIP is subrogated to an insured person’s right to recover the cost of insured services provided to that person for personal injuries suffered as a result of the negligence or wrongful act or omission of another.
13However, s. 30(5) of the HIA creates an exception to OHIP’s right of subrogation “as against a person who is insured under a motor vehicle liability policy issued in Ontario, in respect of personal injuries arising directly or indirectly from the use or operation … of an automobile in Ontario”.
14Section 30(6) of the HIA adopts the definition of motor vehicle liability policy set out in the Insurance Act.
15Section 1 of the Insurance Act defines a “motor vehicle liability policy” to mean:
a policy … evidencing a contract insuring,
(a) the owner or driver of an automobile, or
(b) a person who is not the owner or driver thereof where the automobile is being used or operated by that person’s employee or agent or any other person on that person’s behalf,
against liability arising out of bodily injury to or the death of a person or loss or damage to property caused by an automobile or the use or operation thereof.
For the French version of these provisions of the HIA and the definition of motor vehicle liability policy in s. 1 of the Insurance Act see Appendix ‘A’.
3. The LAT adjudicator’s reasons
16The LAT adjudicator noted that Wawanesa’s position was that Mr. Diep was not involved in an “accident” as defined in the SABs Schedule but that rather, the incident was a slip and fall.
17To determine whether Mr. Diep was involved in an “accident” within the meaning of the SABs Schedule, the LAT adjudicator applied the two-part test set out in Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338 (C.A.), at para. 10, leave to appeal refused [2004] S.C.C.A. No. 461:
(i) The purpose test: did the incident arise out of the use or operation of an automobile?
(ii) The causation test: did such use or operation of an automobile directly cause the impairment?
18The LAT adjudicator noted that whether the incident at issue satisfied the purpose and causation tests “is fact-dependent and determined in light of the particular circumstances.” These include: what the applicant was doing at the time of the incident and whether he was operating his vehicle; the timing of the events that led to the injuries and whether the vehicle was involved; the location of the applicant in relation to the vehicle; and whether the injuries he suffered were directly caused by his operation of the vehicle.
19Concerning the purpose test, the LAT adjudicator found that after unlocking his vehicle with his fob, Mr. Diep was reaching for the door handle as part of his attempt to re-enter his vehicle, when he fell. “[A]s the act of entering a vehicle is an ordinary use of a vehicle”, the LAT adjudicator found the incident satisfied the purpose test. Quoting Mr. Diep’s counsel, she said:
Unlocking a locked car door with the intention of entering the vehicle is clearly the commencement of the process of getting into the car, which involved being in proximity to the car, unlocking the car door [with his fob], opening the door, placing oneself in the car and closing the door. All five steps are essential elements in getting into a car and once initiated, create the relationship between Mr. Diep’s actions and the car. As Mr. Diep fulfilled the first two and was in the uninter[rup]ted] process of completing the next element, that of actually opening the door, he meets the P[ur]pose Test.
20Concerning the causation test the LAT adjudicator noted that, under Greenhalgh, at para. 36, the causation test asks:
[I]f the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?
21The LAT adjudicator also considered three principles from Greenhalgh to assist in determining if the use of the vehicle was a direct cause of Mr. Diep’s injuries. First, she concluded that Mr. Diep would not have been injured “but for” being in the process of re-entering his vehicle.
22Second, she found that, on Mr. Diep’s account, the incident consisted of one continuous chain of events with no “intervening act” to break the chain of causation. In the LAT adjudicator’s view, the slip and fall was not an intervening act because ‘there were two direct causes of the accident, the snow-covered condition of the walkway, and the fact that the vehicle was parked in a location with some snow covering on the ground.” Further:
On the specific facts of this case, slipping and falling on snow formed part of the normal risk created by the use or operation of the vehicle. In other words … one direct cause of the accident was a result of the use and operation of the vehicle that was parked in that gas station under those conditions.
…[Mr. Diep’s] use of the FOB in the immediate moments leading up to the incident ... demonstrates that [he] had clearly moved from the act of “walking through the parking lot” to the process of “getting into the vehicle”.
23Third, the LAT adjudicator found that the dominant feature of the incident was Mr. Diep’s attempt to get into his vehicle. While there was no dispute that the slip and fall caused Mr. Diep’s injuries, the act that initiated the incident – and that was therefore the dominant feature of the incident – was the fact that Mr. Diep was getting into his vehicle. The facts of this case were distinguishable from other cases where the use of the vehicle had ended before the injuries occurred and a further case where the applicant was simply walking towards her vehicle, not attempting to get into it.
24Based on the foregoing considerations the LAT adjudicator found that Mr. Diep was “operating” his vehicle when he was injured and that his injuries were “directly caused” by the operation of his vehicle. He was therefore involved in an “accident” within the meaning of the SABs Schedule.
4. The motion judge’s reasons
25The motion judge concluded that: i) Mr. Diep’s action against the appellants is not “an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile” under s. 267.8 of the Insurance Act; and ii) that OHIP’s subrogated claim is not precluded by s. 30(5) of the HIA.
26The motion judge began her analysis by noting that the phrase “the use or operation of a motor vehicle” is common to: i) determining entitlement to SABs (s. 3(1) of the SABs Schedule), ii) mandating the deduction of SABs from a tort award (s. 267.8 of the Insurance Act), and iii) precluding OHIP’s subrogated claim (s. 30(5) of the HIA). Further, she observed that the parties had cited many cases interpreting the phrase “arises directly or indirectly by the use or operation of a motor vehicle”.
27The motion judge relied on two decisions to guide her approach to the interpretive issues before her: Heredi v. Fensom, 2002 SCC 50, [2002] 2 S.C.R. 741, and Hernandez v. 1206625 Ontario Inc., (2002) 2002 CanLII 45089 (ON CA), 61 O.R. (3d) 584 (C.A.). She concluded that these decisions required her to take a “substantive approach” to the issues and focus on three main factors.
28First, Heredi indicated that the “nature of the facts and the nature of the action” should be “considered together” in order to determine “the fundamental nature of the action”: Heredi, at para. 34. Was the action “one that could be primarily classified as an action for damages occasioned by a motor vehicle?” Or was the role of the motor vehicle in the causal chain “too insignificant?”: Heredi, at para 34.
29Similarly, in Hernandez the court concluded that “the question [was] whether the plaintiff’s ‘loss or damage’, as opposed to his injuries, were caused by the use of his car” and asked whether “the connection between the injuries and the ownership, use or operation of the vehicle [was] merely incidental or fortuitous”: Hernandez, at para. 11, 16. The court examined “the essence of the claim being made [to determine] whether a motor vehicle played a merely ancillary role.”
30Second, in Hernandez, the court considered the purpose of the legislative provision.
31Third, the Hernandez court considered whether the legislative provision should apply to the facts of the case.
32Having identified these factors as relevant to the substantive approach, the motion judge applied Heredi and Hernandez to this case.
a. The facts, the claim and its legal character
33The motion judge found that “[t]he substance of [Mr. Diep’s] tort claim is for damages and loss caused by the [appellants’] negligence as occupiers of the premises where [Mr. Diep] slipped and fell.” The motion judge noted that both the statement of claim and statements of defence were “framed in occupiers’ liability.” She concluded:
The tort claim cannot be properly characterized as arising from the use or occupation [sic] of an automobile. The presence of the vehicle at the location was incidental or fortuitous. The dominant cause as pleaded in the action and as responded to was the failure of the occupier(s) to remove ice and snow from the parking lot. All of the damage claimed is attributable to a cause of action that is substantively distinct from the use or operation of a vehicle.
5. The purpose of the legislative provisions
i. Section 267.8 of the Insurance Act
34Section 267.8 of the Insurance Act was introduced as part of amendments aimed at stabilizing automobile insurance premiums. The motion judge found that at common law, SABs would not be deductible from a tort award because of a private insurance exemption to deductibility. As such, in keeping with rate stabilization, the purpose of s. 267.8 was to protect automobile insurers by providing that SABs were deductible from a tort award where the damage or loss claimed in the case arose “directly or indirectly from the use or operation of an automobile.” However, the “provision was never intended to allow occupiers of land... to escape their full liability for loss and damages for occupiers’ negligence merely because the plaintiff fell in proximity to the motor vehicle, which he or she arrived in.” Citing Hernandez at para. 40, the motion judge concluded that s. 267.8 should be interpreted in light of the principle of statutory interpretation that “a restriction on a plaintiff’s right to advance his full claim should be narrowly construed.”
ii. Subsection 30(5) of the HIA
35The motion judge noted that the restriction on OHIP’s rights of subrogation in s. 30(5) of the HIA arose simultaneously with an agreement between OHIP and the auto insurance industry under which automobile insurers would pay a levy based on the volume of direct automobile liability insurance premiums collected in lieu of OHIP having to pursue claims in cases where personal injuries arose from the use or operation of a motor vehicle. Because of Ontario insurers’ contributions to the levy, the bar on subrogation benefits only defendants who are insured under motor vehicle liability policies issued in Ontario. Section 30(5) of the HIA does not bar OHIP’s subrogation rights with respect to defendants not insured by a motor vehicle policy issued in Ontario.
36The motion judge concluded that the purpose of the bar on subrogation is to reduce expenses incurred by automobile insurers in defending claims for health care expenses paid on behalf of a person insured in automobile accidents. The provision was not intended to allow occupiers to escape liability for damages merely because they may have a motor vehicle liability policy.
6. Should the provision be applied on these facts
37In considering whether s. 267.8 of the Insurance Act and s. 30(5) of the HIA should apply in this case, the motion judge noted that one of the main objectives of insurance law is consumer protection and that the “SABS legislation is viewed as remedial in nature.” Citing Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (Div. Ct.), at para. 71, leave to appeal to Ont. C.A. refused, 2024 ONCA 933, the motion judge noted that “a plaintiff’s entitlement to SABS must be interpreted broadly and generously, giving effect to the desire to compensate accident victims.” That was the context in which the issue before the LAT adjudicator was decided.
38On the other hand, the context of the case before her was very different. The issues were whether s. 267.8 of the Insurance Act takes away from Mr. Diep a common law private insurance exemption and whether OHIP's subrogated claim, granted under s. 30(1) of the HIA in all personal injury actions, is precluded by s. 30(5) of the HIA. In this context, the provisions at issue “should not be construed more widely than is necessary to fulfill the values which support [them]”: Hernandez, at para. 40, citing Air Canada v. British Columbia, 1989 CanLII 95 (SCC), [1989] 1 S.C.R. 1161, at p. 1207. Further, “[t]here is a specific presumption against interfering with the right to bring an action.”14
39The motion judge found no abuse of process. She concluded that the losses claimed by Mr. Diep and OHIP in the action against the appellants do not arise directly or indirectly from the use or operation of an automobile. Further, it would not advance the purpose of either s. 267.8 of the Insurance Act or s. 30(5) of the HIA to allow the appellants to benefit from those provisions.
III. Analysis
1. Standard of review
40Rule 21.01(1)(a) permits the determination, before trial, of a question of law raised by a pleading in an action where, among other things, the determination of the question may dispose of all or part of the action. As the issue for determination on the motion is a question of law, the standard of review is correctness.
2. Did the motion judge err by disregarding binding decisions of this court in El-Khodr v. Lackie and Ontario (Ministry of Health and Long-Term Care) v. Georgiou?
41The appellants submit that this court’s decision in El-Khodr makes it clear that s. 267.8 of the Insurance Act codifies the common law principle that a plaintiff should not recover twice for the same kind of loss arising from the same incident in any related tort litigation. That section, and s. 30(5) of the HIA, were introduced as part of a series of 1996 amendments to the Insurance Act under the Automobile Insurance Rate Stability Act, 1996.15 The appellants submit that, in keeping with that Act, the purpose of s. 267.8 of the Insurance Act is to prevent double recovery where a plaintiff has already accessed SABs. Allowing double recovery in any tort action where the plaintiff has accessed SABs does not promote the purposes of the Act or of that specific section. The appellants submit that the motion judge err by disregarding El-Khodr and interpreting s. 267.8 in a manner that permits double recovery.
42Further, the appellants submit that in Georgiou this court made it clear that whether under s. 30(5) of the HIA or s. 267.8 of the Insurance Act, the only questions at issue are factual questions. If the appellants are insured under a motor vehicle policy issued in Ontario and Mr. Diep’s injuries arose directly or indirectly from the use or operation of an automobile, then this means that whether the appellants are sued as the owner and operator of an automobile or the persons responsible for the safety of the location where Mr. Diep is injured is irrelevant: Georgiou, at para. 20. The appellants submit that the motion judge erred in disregarding Georgiou and engaging in a cause of action analysis to hold that s. 30(5) of the HIA does not bar OHIP’s subrogated claim and that s. 267.8 of the Insurance Act does not require that SABs received by Mr. Diep be deducted from any awards made against them.
43I would not accept these submissions.
44Mr. El-Khodr suffered catastrophic injuries when the tow truck he was operating was rear-ended by another vehicle. Thus, it was not a case involving a non-motor vehicle cause of the victim’s loss. Further, para. 33 of El-Khodr, on which the appellants rely, does not include reference to “in any related tort litigation” as part of the principle stated. The first sentence of para. 33 reads:
Section 267.8 of the Insurance Act codifies the common- law principle that a plaintiff should not recover twice for the same kind of loss arising from the same incident.
45El-Khodr does not therefore address the propositions relied on by the motion judge that at common law there was an exemption from the rule against double recovery and that restrictions on a plaintiff’s right to advance his full claim, such as s. 267.8 of the Insurance Act, should be narrowly construed. In addition, in El Khodr there was no question that SABs would be deducted, the only question to be decided in that case was how they were to be deducted.
46Further, in my view, this court’s decision in Georgiou is distinguishable from this case. In her action, Ms. Georgiou claimed that icy roads in Scarborough caused her to lose control of her vehicle and collide with an oncoming vehicle. She sued the former City of Scarborough for failing to keep its streets in a reasonable state of repair. The sole issue on appeal was whether OHIP’s subrogation right against the City was barred under s. 30(5) of the HIA. All other claims had been resolved. On appeal, OHIP accepted that Ms. Georgiou’s injuries arose directly or indirectly from the use or operation of an automobile and that Scarborough was insured under a motor vehicle liability policy issued in Ontario. However, OHIP argued that although it would not be entitled to subrogate against Scarborough in the capacity of owner and operator of a car, it could do so in the City’s capacity as a road authority. OHIP also relied on the fact that the City’s commercial liability insurer was defending the action, not its motor vehicle liability insurer. This court rejected both of OHIP’s arguments, stating at para. 20:
Neither s. 30(5) of the [HIA] nor s. 267.8(18) of the Insurance Act leaves room for Scarborough to wear two hats. Under each section, Scarborough either is or is not insured under a motor vehicle liability policy issued in Ontario. If Scarborough is insured under a motor vehicle liability policy and the plaintiff’s injuries arise directly or indirectly from the use or operation of an automobile, the statutes bar OHIP’s subrogated claim. In such a case, whether Scarborough is sued as owner and operator of a car or as the entity responsible for the safety of its roads is irrelevant to the bar on subrogation. By contrast, if a plaintiff slips on an icy road, for which Scarborough is responsible, and is injured in the fall, nothing in either statute would bar a subrogated claim by OHIP.
47In Georgiou, it was undisputed that Ms. Georgiou’s claim arose directly or indirectly from the use or operation of a motor vehicle. It was in that context that this court found that there was no room for OHIP to advance a “dual capacity argument”: Georgiou, at paras. 11 and 20. Given that the criterion that the action must arise directly or indirectly from the use or operation of an automobile had been satisfied, there was no basis for a dual context argument. Here, the heart of the dispute concerns whether Mr. Diep’s “action for loss or damage from bodily injury or death [arises] directly or indirectly from the use or operation of an automobile.” The court in Georgiou was not confronted with that issue, and it was therefore unnecessary that this court refer in its analysis to Heredi, a significant case from the Supreme Court of Canada that guided the motion judge’s analysis in this case16.
3. Did the motion judge err by failing to consider all the purposes of s. 267.8 of the Insurance Act and by allowing Mr. Diep to receive double recovery?
48In an argument closely related to their first submission, the appellants submit that the motion judge erred by failing to consider all the purposes of s. 267.8 of the Insurance Act and by allowing Mr. Diep to have double recovery of any losses for which he received SABs.
49They begin with the proposition that s. 267.8 defines the circumstances in which damages must be reduced by SABs very broadly. They note that under the SABs Schedule, “accident” is defined to mean an incident in which the use or operation of a vehicle “directly” causes an impairment. In contrast, s. 267.8 stipulates that an award of damages must be reduced by SABs where loss or damage arises “directly or indirectly” from the use or operation of a vehicle. Again, relying on El-Khodr, the appellants emphasize that the purpose of s. 267.8 is to avoid double recovery. Further, the broader language in s. 267.8 as compared to the language used to define “accident” demonstrates the Legislature’s intention that the rule against double recovery be broadly applied.
50Here, the LAT adjudicator concluded that the use and operation of the vehicle was “a direct cause” of [Mr. Diep’s] injuries. Further, in support of her conclusion, she found that the injuries would not have occurred “but for” Mr. Diep being in the process of re-entering his vehicle, and that the incident was “one continuous chain of events with no intervening act to break the chain of causation”. Given the LAT adjudicator’s findings that the incident fell within the narrow definition of an “accident”, the appellants submit it clearly falls within the broader scope of s. 267.8. The motion judge erred in failing to begin with those conclusions.
51Further, while the motion judge referred to the purpose of s. 267.8 in her reasons, the appellants say she erred in doing so when she said its purpose “was to protect automobile insurers”. As El-Khodr makes clear, its purpose is to prevent plaintiffs from “recover[ing] twice for the same kind of loss arising from the same incident.” They say the motion judge erred in focusing on insurers as opposed to plaintiffs.
52In addition, the appellants submit that the motion judge’s reliance on Heredi and Hernandez was misplaced. Those decisions address circumstances in which plaintiffs face an absolute bar to recovery, such as a limitation period, or a section that precludes uninsured drivers who have not complied with mandatory requirements of the automobile insurance scheme from any recovery. Section 267.8 does no such thing. Rather than precluding plaintiffs from recovery, it simply ensures that they do not obtain double recovery. Ultimately, however, they are made whole.
53The appellants submit that the motion judge erred in law in failing to recognize the real purpose of s. 267.8 and by allowing Mr. Diep to have double recovery when the clear purpose of s. 267.8 is to prevent it.
54I would not accept these submissions.
55The impugned statement of the motion judge must be read in context. She said:
The purpose of s. 267.8, in keeping with rate stabilization, was to protect automobile insurers by providing that SABS were deductible from the tort award where the damage or loss claimed in the case arose “directly or indirectly from the use or operation of the automobile.”
The provision was never intended to allow occupiers of land in a tort action to escape their full liability for loss and damages for occupiers’ negligence merely because the plaintiff fell in proximity to the motor vehicle, which he or she arrived in. It should be viewed in the light of the principle of statutory interpretation that a restriction on a plaintiff’s right to advance his claim should be narrowly construed. A plaintiff’s right to advance his claim includes all loss, with a private insurance exemption.
56Viewed in context, the reference to “protecting insurers” was no more than recognition of the other side of the coin of preventing plaintiffs from double recovery. The crucial issue is identifying the circumstances in which s. 267.8 precludes double recovery and protects insurers from paying twice. The motion judge concluded that s. 267.8 precludes double recovery where the damage or loss claimed in the case arose “directly or indirectly from the use or operation of the automobile.” She found that Heredi and Hernandez apply to guide the interpretation of s. 267.8 because they address situations where plaintiffs are prevented from advancing a claim for their full loss and that this can include entitlement to SABs where the restriction in s. 267.8 does not apply.
57The motion judge concluded that the restrictions in s. 267.8 of the Insurance Act and s. 30(5) of the HIA do not apply because Mr. Diep’s action against the appellants “cannot be properly characterized as arising from the use or operation of an automobile.” She found that “[t]he dominant cause as pleaded in the action and as responded to was the failure of the occupier(s) to remove ice and snow from the parking lot.” Further, “[a]ll of the damage claimed is attributable to a cause of action that is substantively distinct from the use or operation of a vehicle.”
58I see no error in the motion judge’s conclusions.
4. Did the motion judge err by embarking on her own analysis of a previously decided issue, by failing to apply the principles underlying the doctrines of issue estoppel, collateral attack, and abuse of process and by failing to conclude that Mr. Diep is estopped from taking an inconsistent legal and factual position in this litigation?
59In their oral submissions at the appeal hearing, the appellants focused on whether the motion judge erred by failing to hold that the doctrine of abuse of process applies. I will do the same.
60The appellants submit that the motion judge erred by allowing Mr. Diep to advance a legal and factual position before her that was inconsistent with the position he took before the LAT adjudicator regarding the same incident. Before the LAT adjudicator, Mr. Diep asserted that his injuries were “directly cause[d]” by the use or operation of an automobile. The LAT adjudicator accepted that position and accordingly found that Mr. Diep was entitled to SABs. The appellants assert that before the motion judge Mr. Diep took a directly contrary position, namely, that his injuries did not arise directly – or even indirectly – from the use or operation of an automobile.
61Citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at paras. 49, 51 and 56 in particular, the appellants submit that permitting Mr. Diep to relitigate an issue that the LAT adjudicator had already determined in his favour constitutes a “blatant abuse of process”. In C.U.P.E., at para. 56, Arbour J. speaking for the Supreme Court, adopted the reasonable observer test set out in this court:
The reasonable observer would wonder how [the grievor] could be found guilty beyond a reasonable doubt [of sexual assault] in [a criminal] proceeding and ... be found in a separate proceeding [grieving his dismissal from employment] not to have committed the very same [sexual] assault.
62The appellants submit that the same reasonable observer test applies in this case and yields the same result. Mr. Diep advanced one position before the LAT adjudicator but was then allowed to disavow that same position in his tort action against them. Further, allowing him to do so frustrated the purpose of s. 267.8, which is to avoid double recovery. The motion judge erred because she focused incorrectly on the nature of Mr. Diep’s cause of action against the appellants and their status as occupiers instead of recognizing that the factual question at issue, namely whether his injuries were directly (or indirectly) caused by the use or operation of a vehicle” had already been determined.
63Rather than embarking on her own analysis of whether Mr. Diep’s injuries arose from the use or operation of a motor vehicle, the appellants say the motion judge should have considered whether that issue had been decided. If the answer was yes, she should have considered whether this was an exceptional situation where relitigation would enhance, rather than impeach, the integrity of the justice system. Further, the motion judge’s conclusion that this case fell within one of the C.U.P.E. categories of possible limited circumstances in which relitigation will enhance, rather than impeach, the integrity of the judicial system is plainly wrong. That category, as described in C.U.P.E., at para. 52, citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 80, is where fairness dictates that the original result should not be binding in the new context. But Danyluk was a case in which the Supreme Court concluded that the original proceeding had been tainted by the lack of procedural fairness. Not only is there no suggestion that is the case here, but Mr. Diep was successful before the LAT adjudicator.
64I would not accept these submissions. The motion judge’s conclusion that “there is no abuse of process in this proceeding” was grounded in her finding that the context of the motion before her was “very different” from the context of the LAT proceedings.
65The context was very different because the questions in the two proceedings were different. The questions were not about making findings of fact. In each proceeding, the presiding judicial officer was required to determine whether an agreed set of facts met a statutory threshold. This required applying the modern approach to statutory interpretation to the provision at issue. Moreover, determining whether the same issue was raised in the two proceedings “must be decided bearing in mind the purpose of the legislation” being interpreted: Budd v. Paterson (2002), 2002 CanLII 37032 (ON CA), 62 O.R. (3d) 715 (C.A.), at para. 21.
66The question before the LAT adjudicator was whether Mr. Diep was entitled to SABs. Because of the consumer-protection purpose and remedial nature of SABs legislation, the definition at issue had to be interpreted “broadly and generously” and “giving effect to the desire to compensate accident victims”: Davis, at para. 71, see also Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405, at para. 16-17; Smith v. Co-Operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, at para. 11; Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, 148, O.R. (3d) 438, at para. 42; Coban v. Allstate Insurance Company, 2026 ONSC 1925, at para. 23.
67The questions before the motion judge were whether s. 267.8 deprived Mr. Diep of a common law exception to the rule against double recovery – or put another way, deprived him of his right to full recovery in his action against the appellants – and whether OHIP’s s. 30(1) right of subrogation was precluded by s. 30(5) of the HIA. A narrow approach to interpretation was required with respect to such provisions: Hernandez, at para. 40, citing Air Canada, at p. 1207.
68Issue estoppel was not raised in the court below; nor was it pressed in oral submissions on appeal. Nonetheless, for the sake of completeness, I will briefly explain why I consider it inapplicable.
69The three requirements of issue estoppel were summarized in C.U.P.E., at para. 23, citing Danyluk, at para. 25:
the issue must be the same as the one decided in the prior decision;
the prior judicial decision must have been final; and
the parties to both proceedings must be the same or their privies.
70Although the decision of the LAT adjudicator was final, I am not satisfied that the first or third requirements of issue estoppel are satisfied.
71For the reasons I explained in relation to the abuse of process issue, I am not satisfied that the issue before the motion judge was the same as the issue before the LAT adjudicator.
72The parties to the proceedings were clearly different. Mr. Diep and his automobile insurer, Wawanesa, were the parties to the LAT proceeding. Neither the appellants nor OHIP were present.
73The appellants can hardly be said to have been a privy of Mr. Diep or Wawanesa. While they could perhaps be said to have shared Mr. Diep’s interest in obtaining SABs benefits, that would only be because of their ultimate goal of using them to reduce their own liability. And they did not share Wawanesa’s interest in denying SABs to Mr. Diep.
74OHIP had no stake in the proceedings before the LAT adjudicator.
IV. Disposition
75Based on the foregoing reasons, I would dismiss the appeal. I would award costs of the appeal to the respondent, Mr. Diep, on a partial indemnity scale in the agreed upon amount of $15,000 inclusive of disbursements and HST.
Released: June 16, 2026. “J.S.”
“Janet Simmons J.A.”
“I agree. David M. Paciocco J.A.”
“I agree. P.J. Osborne J.A.”
Appendix ‘A’
Subsections 30(1) and (5) of the French version of the HIA read as follows:
30 (1) Si, à la suite de la négligence ou d’un autre acte illégitime ou d’une omission d’une autre personne, un assuré subit des lésions corporelles pour lesquelles il reçoit des services assurés aux termes de la présente loi, le Régime est subrogé dans le droit de l’assuré de recouvrer le coût engagé pour des services assurés antérieurs et celui qui sera probablement engagé pour des services assurés futurs. Le directeur général peut intenter une action en recouvrement de ces coûts au nom du Régime ou au nom de l’assuré
(5) Malgré le paragraphe (1), le Régime n’est pas subrogé à l’encontre d’une personne qui est assurée aux termes d’une police de responsabilité automobile établie en Ontario dans les droits qu’a l’assuré à l’égard de lésions corporelles qui résultent directement ou indirectement de l’utilisation ou de la conduite d’une automobile, après l’entrée en vigueur de l’article 29 de la Loi de 1996 sur la stabilité des taux d’assurance-automobile, en Ontario ou dans une autre compétence législative désignée à l’Annexe sur les indemnités d’accident légales de la Loi sur les assurances
The definition of motor vehicle liability policy in s. 1 of the French version of the Insurance Act reads as follows:
Police ou partie d’une police qui fait foi d’un contrat assurant:
a) soit le propriétaire ou le conducteur d’une automobile;
b) soit une personne autre que le propriétaire ou le conducteur, lorsque l’automobile est utilisée ou conduite par l’employé ou l’agent de celui-ci, ou par toute autre personne pour son compte,
contre la responsabilité découlant de lésions corporelles ou du décès d’une personne, ou des dommages causés à des biens ou de la perte de ceux-ci par une automobile ou par l’usage ou la conduite de celle-ci.
267.8(1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts:
- All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the income loss and loss of earning capacity.
The French version of the same section reads, in relevant part:
267.8(1) Dans une action pour pertes ou dommages résultant de lésions corporelles ou d’un décès qui découlent directement ou indirectement de l’usage ou de la conduite d’une automobile, les dommages-intérêts auxquels le demandeur a droit pour perte de revenu et perte de capacité de gain font l’objet des réductions suivantes :
- Tous les paiements relatifs à l’incident que le demandeur a reçus ou qui étaient offerts avant l’instruction de l’action pour des indemnités d’accident légales à l’égard de la perte de revenu et de la perte de capacité de gain.
Footnotes
- SABs offer mandatory, specific, no-fault benefits to insured victims of motor vehicle accidents.
- O.Reg. 34/10.
- Chi Khai Diep v. Wawanesa Mutual Insurance, 2020 ONLAT 18-006988/AABS.
- R.S.O. 1990, c. O.2.
- Rule 21.01(1)(a) states, in relevant part, that a party may move before a judge, “for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action”.
- R.R.O. 1990, Reg. 194.
- R.S.O. 1990, C. I.8.
- R.S.O. 1990, c. H. 6.
- Rule 21.01(2)(a) provides that no evidence is admissible on a motion “under clause (1)(a), except with leave of a judge or on consent of the parties.”
- The French version defines an accident, in relevant part, to mean “[i]ncident au cours duquel l’usage ou la conduite d’une automobile cause directement une déficience ou endommage”.
- These subsections deal with payments received or available prior to trial. Subsection 267.8(9) deals with payments received after the trial and, along with ss. 267.8(10) requires that they be held in trust and paid out to persons from whom damages were recovered in the action.
- Income loss and loss of earning capacity, health care expenses and pecuniary losses.
- For example, s. 267.8(1) reads, in relevant part, as follows:
- Although not cited by the motion judge, it appears her authority for this is Hernandez, at para. 41.
- S.O. 1996, c. 21.
- Although Heredi was released prior to this court’s decision in Georgiou, it had not been released at the time Georgiou was argued. On the appeal of this matter, the appellants did not rely on two decisions from this court that the Georgiou motion judge relied on to reject OHIP’s claim that the damages resulted from the municipality’s negligence and not “directly or indirectly” from the use or operation of a motor vehicle: Durant v. Blandford, [2000] O.J. No 1710 and Rutherford v. Niekrawietz (1998), 1998 CanLII 939 (ON CA), 117 O.A.C. 387. As noted in Hernandez, at para. 36, both involve brief reasons and predate the Supreme Court’s decision in Heredi, which mandates a focus on “the true nature [of] the claim”. Further, in Cowles v. Balac, 2005 CanLII 2305 (ON CA), [2005] O.J. No. 299, MacFarland J. declined to hold that OHIP’s subrogated claim was barred based on Durant. She found that, in that case, the plaintiffs suffered injuries as a result of tigers getting into their vehicle and that the injuries did not arise directly or indirectly from the use or operation of a motor vehicle. She said: “[t]he motor vehicle was merely incidental or ‘ancillary’, the term used by the court in Heredi v. Fensom”.