COURT FILE NO.: C-431-14
DATE: June 10, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Economical Mutual Insurance Company, Applicant
AND:
Patrick Caughy, Respondent
BEFORE: The Honourable Mr. Justice R. J. Nightingale
COUNSEL: Daniel Strigberger and Ashleigh Leon, Counsels, for the Applicant
Nigel Gilby and Christopher Dawson, Counsels, for the Respondent
HEARD: April 1, 2015
ADDENDUM : Counsels for the Applicant and the Respondent were omitted in error and have been added. No other changes made.
ENDORSEMENT
[1] Economical Insurance Group (“Economical”) brings this application under Rule 14.05(3) for a determination of whether the Respondent was involved in an “accident” pursuant to s. 3 (1) of the Statutory Accident Benefits Schedule – effective September 1, 2010 (“SABs”) in relation to an incident that occurred on August 3, 2012.
Factual Background
[2] On August 2, 2012 the Respondent drove his truck and camper trailer accompanied by his wife and children to attend a music festival in Chatham – Kent which included five days of camping and three days of country music. They detached their trailer which was then parked alongside other trailers leaving a gap designated as a walkway leading out of their campsite. This walkway had been used by this group of campers in previous years.
[3] On August 3, 2012, some campers arrived on two motorcycles and parked them on the Respondent’s site but not in any way blocking the walkway. Sometime after dark that night and without the Respondent’s knowledge, the motorcycles were moved and then parked within the designated walkway between the Respondent’s truck and an adjacent trailer.
[4] The Respondent had consumed considerable amounts of alcohol that day and evening. Shortly before midnight, while playing tag with his daughter and her friend around his parked truck, he was running between his truck and the adjacent trailer. While doing so, he collided with and tripped over one of these motorcycles that had been parked in the walkway not long before propelling him forward into and striking his truck before falling to the ground. He sustained serious spinal cord injuries as a result.
[5] The Respondent applied to Economical for accident benefits under his own motor vehicle SABs policy on August 14, 2012 which were denied.
Analysis
[6] Section 3 (1) of the applicable SABs defines “accident” as:
“… 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.”
[7] Economical’s position is that the Respondent is not entitled to accident benefits as he was not involved in an “accident” as defined by the SABs. The Respondent disagrees.
[8] The Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia [1995] 3 S.C.R. 405, 1995 66 held that the Respondent in order to establish he was involved in an “accident” under differently worded no-fault legislation, must meet a twofold test:
Did the accident result from ordinary and well-known activities to which automobiles are put? (the “Purpose Test”) and
Was the relationship causal or was it merely fortuitous or incidental? (the “Causation Test”).
[9] The statutory language involving no-fault accident benefits must be interpreted broadly in favour of the insured but must not be stretched beyond its plain and ordinary meaning or given a technical construction that defeats the object and insuring intent of the legislation providing coverage. Amos, para. 17.
[10] After the Amos decision, the Ontario SABs was amended in 1996 restricting the definition of “accident” as defined above to only those impairments caused “directly by the use or operation of an automobile”, a narrower and more stringent causation requirement. Martin et al. v. 2064324 Ontario Inc. c.o.b.as Freeze Night Club et al. 2013 ONCA 19.
[11] The Ontario Court of Appeal in three decisions subsequent to Amos has confirmed the following two-part test used to determine whether an impairment was caused by an accident pursuant to the SABs :
a) did the incident arise out of the use or operation of an automobile i.e., the ordinary and well-known activities to which automobiles are put? (the “Purpose Test”) and
b) was the use or operation of an automobile a cause of the injuries (the “Causation Test”). If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or 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? Chisholm v. Liberty Mutual Insurance Group [2002] O.J. No. 2135; Greenhalgh v. ING Halifax Insurance Co. 2004 21045 (ON CA), [2004] O.J. No. 3485; Martin et al, above, para.37
The Purpose Test
[12] The term “use or operation of an automobile” must be broadly interpreted to mean its ordinary and well-known uses:
“The expression, use or operation”, would or should, in my opinion, convey to one reading it all accidents resulting from the ordinary and well-known activities to which automobiles are put, all accidents which the common judgment in ordinary language would attribute to the utilization of an automobile as a means of different forms of accommodation or service. It may be said that in some instances “use” and “operation” are equivalent: the statute uses both words and meaning can be given to each in this manner where the “use” is that in fact of the automobile”. Rand J., in Stevenson v. Reliance Petroleum Limited 1956 27 (SCC), [1956] S.C.R. 936 at p. 941.
[13] In this case, the owner of the motorcycle had parked it temporarily on the walkway area intended for pedestrian use shortly before this incident. The motorcycle was obviously not in motion at the time of the incident but in my view, the temporary parking of the motorcycle that evening on that walkway constitutes a normal, ordinary or well-known use or operation of that motorcycle. There was no evidence that the motorcycle was inoperable at the time of it being parked or at the time of the incident. In addition, there was no evidence that the motorcycle was intended to be left or stored there for an extended period of time.
[14] Although dealing with the provisions of the Compulsory Automobile Insurance Act, I find somewhat helpful the reasoning of the decisions of Hall v. Tu , February 11, 1992 unreported and Faria v. Pereira (1995) 20 O.R. (3d) 737 that parking of a motor vehicle on a highway before an accident would constitute “operation” of the vehicle.
[15] In addition, although not binding on me, I also find persuasive the decision of Ash v. Wawanesa Mutual Insurance Company 2006 0.F.S.C.D. No. 131 that a trailer attached to an automobile parked at the side of the road with which a bicyclist collided at night involved a use of a motor vehicle for the purposes of the SABs claim by the bicyclist who was injured. To the same effect is the decision of DiMarco v. Chubb Insurance Company of Canada 2012 O.F.S.C.D. No. 19 which held that a parked vehicle partially obstructing a pedestrian sidewalk involved the use or operation of that automobile for the purposes of a SABs claim when a bicyclist riding on that sidewalk collided with it causing him injuries.
[16] The decision of the Dominion of Canada General Insurance Company v. Prest 2013 ONSC 92 is distinguishable. In that case, the only role played by the car was that the claimant drove it to the location where the incident occurred. He parked the car in its usual spot and a new intervening act occurred when the claimant after exiting the vehicle tripped over a curb that had nothing to do with the parking of the car.
[17] Lastly, this interpretation of “use or operation” for the Respondent’s claim under the SABs would be consistent with the operator of the motorcycle likely expecting that his motorcycle liability insurer would defend any potential tort claim commenced against him by the Respondent for his injuries because of his alleged negligent parking of the motorcycle temporarily on that pedestrian walkway in the dark without warning to the Respondent. That expectation would be reasonable as the Ontario Automobile Policy O.A.P. # 1 provides liability coverage for such lawsuits “arising out of the ownership, use or operation” of the motorcycle. That wording used is wider in scope than that of the SABs but the relevant issue is the similar “use or operation” language used in both.
[18] In my view, the Respondent has satisfied the purpose test that the use or operation of an automobile, ie, the motorcycle, was involved in this incident.
The Causation Test
[19] The main question is whether the Respondent has also satisfied the causation requirement for him to receive SABs.
[20] As indicated above, the effect of the elimination of the word “indirectly” in the 1996 SABs schedule was to narrow and render more strict the causation requirement for the receipt of SABs.
[21] Was the use or operation of the motorcycle in question a direct cause of the Respondent’s injuries? Under the modified causation test from Chisholm and Greenhalgh, above, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury. Downer v. Personal Insurance Company (2012) 110 O.R. (3d) 401, 2012 ONCA 302; Martin et al, above.
[22] In this case, the temporary parking of the motorcycle in the circumstances that evening was the dominant feature in the incident and not simply ancillary to it. The motorcycle was parked on the pedestrian walkway after dark shortly before this incident unknown to the Respondent. A reasonable inference was that because of its size and dimensions, it was likely less noticeable to pedestrians using that walkway than if a regular car was parked there especially because of the darkness. There is no evidence that any warnings to others using the walkway of the presence of the motorcycle including signage or barriers were used. The parking of that motorcycle in those circumstances that night created or added to the risk of injury that befell the Respondent and other pedestrians using that walkway. The parking of the motorcycle not just led to the Respondent’s injuries, it contributed physically to and/or caused them.
[23] In addition, the admitted facts were that the Respondent actually collided with the parked motorcycle while running which caused his serious injuries.
[24] I also note the decision of our Court of Appeal in Lewis v. Economical Insurance Group (2010) 103 O.R. (3d) 494, 2010 ONCA 528. In that case, a pedestrian who walked out of a variety store struck her head near her right temple on an unmarked and nearly invisible steel pole protruding from a truck parked on the street. She fell to the ground unconscious suffering a serious head injury. The plaintiff had unidentified/uninsured insurance coverage under her own car insurance policy and under her OPCF 44R Family Protection Coverage for her injuries if she was “struck by” or “hit by” an unidentified automobile.
[25] The Court found that both provisions under the policy were potentially available to the plaintiff for her injuries resulting from her contact with the stationary automobile. The coverage was remedial in nature and the Court interpreted it broadly and liberally in finding the plaintiff was “struck by” an unidentified automobile.
[26] Significantly, in that case, the Court noted that the insurer Economical Insurance recognized and accepted that the plaintiff was involved in “an accident” where the use or operation of an automobile directly caused her injuries under the SABs. In recognition of that entitlement, Economical Insurance was paying the plaintiff’s benefits under the SABs because of that incident which SABs the Court clearly appeared to acknowledge were indeed payable to her. Lewis, para 15.
[27] It should also be noted that there did not seem to be any issue in Lewis that the plaintiff, if an “insured person”, was entitled to recover for her damages in respect of bodily injury arising directly or indirectly from the use or operation of an automobile by the negligent driver, which was the coverage provided under her OPCF 44R Family Endorsement Coverage. Although the coverage under the SABs is restricted to “direct” use or operation of an automobile, the temporarily parked motorcycle in the dark in this case in my view would not be any different “use or operation” than that of the parked truck in Lewis.
[28] The Court in Lewis found that had the Legislature intended to exclude unidentified insurance coverage for injuries resulting from contact with a stationary automobile, it could have said so explicitly through drafting limiting or excluding provisions. They did not do so. In my view, this similar reasoning is applicable in this case. Had the Legislature intended to exclude accident benefits coverage in these circumstances where pedestrians collide with negligently and temporarily parked or stationary automobiles causing them injuries, it would have provided specific provision for that.
[29] It would seem incongruous that a pedestrian, as in Lewis above, while walking on a public sidewalk who then collided with a pole protruding from a stationary automobile would be entitled to both SABs and unidentified/ uninsured coverage under her own motor vehicle policy but the Respondent in this case, who while running in the dark on a pedestrian walkway collided with a motorcycle temporarily parked there, would not be entitled to SABs.
[30] Accordingly, the use or operation of the motorcycle in question was a cause of the Respondent’s injuries.
[31] In my view, there was an unbroken chain of causation linking the conduct of the operator of the motorcycle in question, as a motorist, to the Respondent’s injuries. His parking of the motorcycle in these circumstances was not merely ancillary or fortuitous to the injuries inflicted. In this case, there was no intervening or distinct act that was not part of the “ordinary course of things” or not a normal incident of the risk to pedestrians created by the use or operation of the motorcycle parked in that fashion which resulted in the Respondent’s injuries unlike the facts in Martin, Chisholm or Greenhalgh, above.
[32] The fact that the Respondent may have been running after dark at the time of the incident and after having consumed considerable amounts of alcohol are not intervening acts sufficient to break the chain of causation between his colliding with the motorcycle and his injuries. His alcohol consumption happened before his colliding with the motorcycle and both may have been contributing causes of the incident. However, that does not take away from his right to access the SABs under his motor vehicle policy. The motorcycle was not just the venue where the Respondent’s injuries occurred; the use or operation of the motorcycle in this case was the dominant feature, or at least a significant contributing or a direct cause of his injuries. Greenhalgh, above; DiMarco v. Chubb Insurance Company of Canada, above; Ash v. Wawanesa Insurance Company, above.
Conclusion
[33] Accordingly, a declaration will issue that the Respondent was involved in an accident pursuant to section 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“SABs”), in relation to an incident that occurred on or about August 3, 2012.
[34] Subject to any relevant written offers to settle or agreement of the parties, the Respondent would usually be entitled to his costs of this application on a partial indemnity basis. If the parties cannot agree on the disposition of costs, the Respondent shall provide brief submissions of no more than three pages in length together with a bill of costs and any relevant written offers to settle within 10 days of the date of this decision. The Applicant shall have 10 days thereafter to similarly provide a response. The submissions are to be delivered to the Trial Coordinator in Simcoe. If no submissions are made, each party shall bear their own costs of this application.
The Honourable Mr. Justice R.J. Nightingale
Date: June 10, 2015