SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-56044
DATE: 2013/01/04
RE: The Dominion of Canada General Insurance Company, Applicant
AND
Maurice Prest, Respondent
BEFORE: Mr. Justice J. McNamara
COUNSEL: Joyce Tam, Counsel for the Applicant
Donna Trofimczuk, Agent for the Respondent
HEARD: January 3, 2013
ENDORSEMENT
Overview
[1] On this Application the applicant insurer, The Dominion of Canada, seeks a determination whether the incident involving the respondent insured falls within the definition of an “accident” as set out in s. 3(1) of the Statutory Accident Benefits Schedule, O. Reg. 34/10.
Facts
[2] The facts in this matter are not in dispute.
[3] On April 13, 2012, in the early afternoon, the respondent, Mr. Prest, who was insured under a standard automobile policy issued by The Dominion had parked his vehicle in his parking spot at his residence in order to wash it. He exited the vehicle and walked to the end of his car. He then tripped over a concrete curb that in his words and as depicted in photographs filed with the Application materials, “sticks out” from the wall of the parking garage as depicted in those pictures. He states his right hand was touching the car when he tripped. There is no issue he suffered an impairment as a result of the incident.
Analysis
[4] Section 268(1) of the Insurance Act, R.S.O. 1990 c. I.8, provides that every contract evidenced by a motor vehicle liability policy provide for the statutory accident benefits set out in the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule.
[5] Subsection 3(1) of the Schedule defines “accident” as meaning “an incident in which the use or operation of an automobile directly causes an impairment ... .”
[6] In both Chisholm v. Liberty Mutual Group (2002), O.R. (3d) 776, and Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 21045 (ON CA), 72 O.R. (3d) 338, the Ontario Court of Appeal determined that the definition of “accident” in s. 3(1) sets forth a two-part test that involves a consideration of the following questions:
(a) Did the incident arise out of the use or operation of an automobile (the “purpose test”); and
(b) Did such use or operation of an automobile directly cause the impairment (the “causation test”).
[7] In examining the purpose test, the Court must determine whether the incident or accident resulted from the ordinary and well known activities to which automobiles are put.
[8] In my view, on the facts of this matter, it does not. At the time of the incident the vehicle was being neither used nor operated. To the contrary, the vehicle was parked in its regular parking spot for purposes of washing the car. A parking spot at one’s residence is typically where a car is put when there is no intent to use it.
[9] Even if it could be argued that the purpose test is met on a rationale that but for the vehicle having been parked, the respondent would not have been walking in the area of the curb, I am satisfied that the use or operation of the automobile was not a direct cause of the impairment.
[10] Here the only role played by the motor vehicle was that the respondent drove it to the general location of where the incident occurred. The use of the car had ended without injury being suffered. Mr. Prest had left the car and then was injured by a new intervening act, namely when he tripped over the curb that in the respondent’s words “sticks out”. He parked the car in its usual spot and that did not create any special risk beyond the risk faced by Mr. Prest every time he parked his car in his parking spot. If that curb is in a bad location or is otherwise dangerous, that is an occupier’s liability issue.
[11] In the circumstances I am satisfied Mr. Prest was not injured as a result of an “accident” as defined under the Benefits Schedule, and is not entitled to benefits under the Schedule.
[12] In the unfortunate circumstances of this matter I am not prepared to make any order as to costs.
Mr. Justice J. McNamara
Date: January 4, 2013
COURT FILE NO.: CV-12-56044
DATE: 2013/01/04
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: The Dominion of Canada General Insurance Company, Applicant
AND
Maurice Prest, Respondent
BEFORE: Mr. Justice J. McNamara
COUNSEL: Joyce Tam, Counsel for the Applicant
Donna Trofimczuk, Agent for the Respondent
ENDORSEMENT
McNamara J.
Released: January 4, 2013