Gilbraith v. Intact Insurance Company et al.
Ontario Reports Ontario Superior Court of Justice Sosna J. March 22, 2019 145 O.R. (3d) 344 | 2019 ONSC 1875
Counsel: Darcy W. Romaine, for plaintiff. Hermina Nuric, for defendant Intact Insurance Company. Robert Kerkmann, for defendant Superintendent of Financial Services.
SOSNA J.: —
Introduction
[1] On April 11, 2014, Stephanie Gilbraith (the "plaintiff") was a pedestrian when she received an eye injury by one of several eggs thrown in her direction. The eggs were thrown by occupant(s) from a moving motor vehicle, which subsequently left the scene. The owner, driver and occupants of the motor vehicle have to date not been identified. As a result of being struck, the plaintiff's right eye was injured and she has lost central vision in her right eye.
[2] The plaintiff commenced a claim against Intact Insurance Company ("Intact") in accordance with the OPCF 44R Family Protection Coverage Endorsement of the standard Ontario policy of automobile insurance (the "Endorsement"), which was issued to her father by Intact.
[3] The plaintiff also made a claim against the Superintendent of Financial Services (the "Superintendent"), seeking the mandatory uninsured automobile coverage for damages occasioned by an unidentified motor vehicle when the plaintiff is not insured. Actions against the Superintendent are governed by the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41 (the "MVACA").
[4] Intact brings this summary judgment motion seeking dismissal of the plaintiff's action.
[5] The Superintendent brings this companion summary judgment motion also seeking dismissal of the action.
[6] The plaintiff seeks that Intact's summary judgment motion be dismissed. In the event that Intact is granted summary judgment, the plaintiff moves that the summary judgment motion brought by the Superintendent also be dismissed.
Facts
[7] On April 11, 2014, while walking with a friend on a sidewalk in Waterloo, Ontario, a car approached the plaintiff from the opposite direction. The plaintiff believes the car was going faster than the speed limit. Her friend estimated the car was travelling 60 to 70 kph in a 50 kph zone.
[8] The front passenger in the motor vehicle threw an egg (or eggs), and the plaintiff's right eye was struck. The car did not stop. The car and occupants remain unidentified.
[9] The plaintiff sustained an injury to her right eye. A medical report in April 2016 diagnosed the injury to be a choroidal rupture, vitreous hemorrhage and peripheral retinal injury. The injury will likely render the plaintiff's central vision in her right eye to be permanently impaired.
[10] The plaintiff filed a statement of claim at the Superior Court of Justice of Ontario on October 20, 2015. Intact was named as a party defendant pursuant to the Endorsement. Intact served a statement of defence on January 7, 2016.
[11] The plaintiff also made a claim against the Superintendent. A statement of defence has also been entered by the Superintendent.
Positions of the Parties
The moving parties defendants' positions
[12] Intact seeks dismissal of the plaintiff's action. Intact submits that, on the material facts in this matter, there is no genuine issue requiring a trial with respect to both the purpose test and the modified causation test. Intact submits that the plaintiff's injuries did not arise directly or indirectly from the use or operation of an automobile by an inadequately insured motorist, but by an egg being thrown by a passenger in the car.
[13] Intact seeks an order granting summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing the action brought by the plaintiff.
[14] The Superintendent submits that the plaintiff's injuries were not "occasioned . . . by a motor vehicle" as set out in s. 12 of the MVACA. Second, if the plaintiff's injuries were occasioned by a motor vehicle, the plaintiff would then be covered under Intact's policy which would preclude a claim against the Superintendent. The Superintendent seeks dismissal of the plaintiff's action.
The responding party plaintiff's position
[15] The plaintiff submits that both the purpose test and modified causation test are met in this matter. The plaintiff seeks dismissal of the summary judgment motion brought by Intact. In the event Intact is granted summary judgment, the plaintiff moves that the summary judgment motion brought by the Superintendent be dismissed.
[16] The plaintiff submits that her injuries arose from the use or operation of a motor vehicle from which an egg(s) was thrown. The plaintiff submits that the incident occurred in the course of the ordinary and well-known activity of motor vehicles, and that there was an unbroken chain of causation linking the injury to the use and operation of the motor vehicle, which was more than fortuitous.
[17] The plaintiff submits that the added velocity of the egg imparted by the speeding motor vehicle rendered the involvement of the motor vehicle the dominant feature that caused her injury. The plaintiff relies on the Injury Biomechanics Report of MEA Forensic dated August 17, 2016, authored by Benjamin S. Elkin, a biomechanical engineer (the "report").
[18] With respect to the Superintendent's claim, the plaintiff submits that the kinetic energy imparted to the egg by the motor vehicle permits compensation pursuant to s. 12 of the MVACA, which includes compensation for injury "occasioned . . . by a motor vehicle". The plaintiff further submits that the prerequisite under s. 12 of the MVACA is satisfied as she has an independent cause of action against the driver. Further, the plaintiff submits that s. 193 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA") imposes a reverse onus on the driver to disprove negligence where a person sustains damages by reason of a motor vehicle. Where the Superintendent has no evidence to rebut the reverse onus, the unidentified driver will be presumed negligent under the HTA.
The Relevant Law
The test for summary judgment
[19] There is no issue that the test for granting summary judgment is provided in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, at para. 22:
Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companion Mauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.
The law concerning inadmissibility of expert evidence for truth of contents
[20] Intact submits that the report, attached as Exhibit "A" to the affidavit of Josie Cairone of Boland Howe LLP, sworn August 18, 2018, at Tab 3 of the Responding Motion Record of the plaintiff, is inadmissible for the truth of its contents because it is hearsay. The expert report was not filed with the affidavit of the expert outlining his opinions, nor through an affidavit of the expert attaching his report, which would afford the moving party the ability to cross-examine the expert.
[21] Intact submits that the Report can be used, if at all, for the limited purpose of assisting the court in determining whether "some evidence" exists about the issues at hand.
[22] With respect to expert reports in motions brought for summary judgment, a succinct statement of the law is provided in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 16, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 443:
As a general rule, when a party seeks to adduce expert evidence on a summary judgment motion, the evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness' observation of or participation in the events in issue, as explained in Westerhof v. Gee Estate, 2015 ONCA 206, 310 O.A.C. 335, at paras. 60-62. A party can file either an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, a division of BMW Canada, 2014 ONSC 2060, [2014] O.J. No. 1802, at para. 29, aff'd 2014 ONCA 887.
[23] However, the failure to include an expert's affidavit along with an expert report is not fatal to the party seeking to rely on the expert report.
[24] In Huang v. Fraser Hillary's Ltd., 2015 ONSC 7645, 99 C.E.L.R. (3d) 212 (S.C.J.), the court applied the ratio in Beatty v. Waterloo (Regional Municipality), 2011 ONSC 3599, 85 M.P.L.R. (4th) 269 (S.C.J.) and found the following, at paras. 38-40:
In considering the experts' reports before me on this motion, I follow the approach taken by MacPherson J. (as he then was) in Beatty. In that matter all of the plaintiffs had settled their claims. The apportionment of liability as between the defendants and third parties remained to be determined. One of the defendants and one of the third parties each brought a motion for summary judgment. Only one expert's report was included in the records filed on the motions.
Dealing with the singular expert's report, MacPherson J. said at paragraphs 33 and 34:
However, in the circumstances of this motion, I find that it is appropriate to consider the report not for the truth of its contents but to demonstrate that the report exists and that there is evidence on the issue of causation that would form part of the Municipal Defendants' case at trial and for the limited purpose of establishing whether there is a genuine issue for trial.
Otherwise, if I were to simply ignore the existence of the report entirely, this would overlook the reality of the situation -- two accidents occurred in snowy conditions on a road adjacent to the Mattamy subdivision and as between the remaining Defendants/Third Parties some or all of them are liable to the Plaintiffs for the damages suffered.
In determining the issues on this motion, I therefore treat the experts' reports as "some evidence" as to the source(s) and source zone(s) of the contaminants affecting the plaintiff's properties. That evidence is considered in determining whether there is a genuine issue requiring a trial with respect to one or more of the four alleged bases of liability on the part of the defendant.
[25] In the present motion, the report addresses the central issue in assessing whether there is a genuine issue for trial, namely, whether the plaintiff's injury arose directly or indirectly from the use or operation of a motor vehicle by an inadequately insured motorist, or by an egg thrown by a passenger in the car.
[26] The report finds that a vehicle travelling at least 50 kph would likely have doubled or more the impact speed of the egg, and the vehicle speed increased the risk of retinal injury from 0 per cent for the throw alone to between 1 per cent and 39 per cent for an egg thrown from a vehicle travelling at 50 kph.
[27] In accordance with Huang, I treat the report as "some evidence" that I do consider in determining whether there is a genuine issue requiring a trial as set out in Hryniak. However, as the report is hearsay, it is not admissible for the truth of its contents.
The law concerning indemnity under OPCF 44R endorsement
[28] The Endorsement provides certain protections to an eligible claimant that is injured by an inadequately insured motorist, including the driver or owner of an unidentified automobile. Section 3 of the Endorsement provides as follows:
Insuring Agreement
[T]he insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile.
[29] Section 1.5(b) of the Endorsement defines "inadequately insured motorist" as the following:
(a) the identified owner or identified driver of an automobile for which the total motor vehicle liability insurance or bonds, cash deposits or other financial guarantees as required by law in lieu of insurance, obtained by the owner or driver is less than the limits of family protection coverage; or
(b) the driver or owner of an uninsured automobile or unidentified automobile as defined in Section 5, "Uninsured Automobile Coverage" of the policy.
[30] I have considered the cases filed by counsel, including the two leading authorities regarding the interpretation of the Endorsement: Vytlingam (Litigation guardian of) v. Farmer, 2007 SCC 46 and Russo v. John Doe, 2009 ONCA 305.
[31] In Vytlingam, the Vytlingams were catastrophically injured when their vehicle was struck by a rock that had been intentionally dropped from an overpass by two tortfeasors. The tortfeasors had driven to the scene with the rock in the motor vehicle. They exited the car and dropped the boulder from the overpass and then fled. The Vytlingams sought coverage under the OPCF 44R Family Protection Coverage.
[32] Vytlingam established a number of principles for the interpretation of the Endorsement. The court found that "[t]he OPCF 44R is a big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle": at para. 22. Further, the court stated that "[t]he insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example": at para. 23. The OPCF 44R requires "the tortfeasor whose conduct is the subject matter of the indemnity claim be at fault as a motorist": at para. 25.
[33] The test to determine fault as a motorist, as set out in Vytlingam, at para. 12, can be articulated as follows:
Purpose test ("use or operation"): Did the incident occur in the course of the ordinary and well known activities of automobiles?
Modified causation test ("arising directly or indirectly"): Was there an unbroken chain of causation linking the claimed loss or injuries to the use and operation of the motor vehicle, which is shown to be more than simply fortuitous or "but" for?
[34] Russo also provided further guidance on this issue. In that matter, Ms. Russo sustained spinal injuries that rendered her a paraplegic as a result of being caught in the crossfire of a drive-by shooting. The assailant had driven slowly through the parking lot and shot several rounds into a sandwich shop where Ms. Russo was a patron. Ms. Russo was struck by a bullet. The assailants fled the scene. Ms. Russo similarly sought coverage for her injuries under her OPCF 44R endorsement.
[35] At para. 20 of Russo, the court found the following:
First, as the provision includes "the use" and not just the "operation" of an automobile, its scope is broader than loss or damage that arises simply from a driver's manipulation of the mechanical controls of an automobile. Second, the provision covers loss or damage that arises both "indirectly" as well as "directly" from the use or operation of an automobile.
Analysis
Purpose test ("use and operation")
[36] Intact argues that the incident which caused the plaintiff's injuries requires that the unidentified motor vehicle be effectively used as a catapult for the egg that struck the plaintiff. Intact contends that this characterization of the motor vehicle as a catapult is supported by the evidence of the expert, and the expert report, which the plaintiff purports to rely on at trial. The report suggests that the extent of the plaintiff's injuries was only possible because the high speed of the motor vehicle imparted the kinetic energy of the car onto the egg, which was thrown at her.
[37] Intact submits that the theory of the plaintiff's case rests on the assumption that the very purpose for which she states the unidentified motor vehicle was used, as a catapult for the egg, is one that represents an aberrant use of the motor vehicle. The expert evidence that the plaintiff purports to introduce in support of her position at trial therefore necessarily requires the presence of an aberrant use of the motor vehicle to support its main premise.
[38] Intact submits that the use of a motor vehicle as a catapult for an egg is not an ordinary and well-known use to which motor vehicles are put. Using a motor vehicle as a catapult is akin to using it as a diving platform, which was specifically listed as an aberrant use of a motor vehicle in Vytlingam.
[39] Intact submits that sanctioning the throwing of eggs out of moving vehicles at pedestrians as an ordinary and well-known use to which motor vehicles are put would create an absurdity with possible implications for insurance underwriting purposes in Ontario.
[40] For the following reasons, I dismiss Intact's submission that the plaintiff has not met the purpose test.
[41] In Vytlingam, as previously reviewed, the tortfeasors drove a motor vehicle to an overpass, exited the vehicle and dropped a rock from the overpass onto traffic below, causing catastrophic injuries to the Vytlingams. The Supreme Court held that the purpose test was met. At para. 33, the court found the following:
. . . I do not accept the insurer's contention that the use of Farmer's vehicle for the purpose of transporting rocks to the scene of the crime fell outside the scope of the ordinary and well-known activities to which automobiles are put.
[42] Similarly, in Russo, a drive-by shooting rendered Ms. Russo a paraplegic. The Court of Appeal for Ontario held that the purpose test had been met, at para. 24:
The motion judge, in concluding that the purpose test was not met in this case, refused to accept that "it is an ordinary use of an automobile when you add to the scenario that the vehicle is being used to carry guns and assailants to effect a shooting and to escape the scene." With respect, the motion judge erred in this analysis by improperly considering both the subjective reasons of Peretz for driving the car and the criminal activity for which the car was used. I would put things much more generically - the motor vehicle was used to transport passengers and apparatus from one place to another. Peretz used the van to transport Borrelli and Christoforou and their guns from wherever they were to the front of the restaurant. Viewed from this perspective, Peretz's use of the van was a well-known and ordinary use of an automobile. The purpose test, in my view, was met on the facts of this case, as far as Peretz is concerned.
[43] In the present matter, the driver was transporting passengers and cargo, egg(s). These are well known activities involving the use of an automobile consistent with the findings in Vytlingam and Russo. As such, I find that the incident did occur in the course of the ordinary and well-known activity of automobiles. Contrary to Intact's submission, the plaintiff has met the purpose test.
[44] Lastly, further to Intact's submission that the plaintiff has not met the purpose test because the driver used his vehicle as a catapult for the egg(s), I find this analogy fails. The vehicle in the present matter was not a stationary machine that used a counterbalance to hurl an object. Catapults do not carry passengers, travel on roads, or have combustion engines. The motor vehicle was not modified into a catapult.
Modified causation test ("arising directly or indirectly")
[45] Counsel for Intact and the plaintiff agree that the modified causation test requires an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made. The link must be shown to be more than simply fortuitous or "but for": Vytlingam, at para. 12; Russo, at para. 26.
[46] In support of its position that the modified causation test has not been met, Intact relies on the analysis set out in Vytlingam and Russo.
[47] In Vytlingam, as previously reviewed, the tortfeasors drove to an overpass, transporting rocks in their vehicle. They exited the vehicle and dropped the rocks onto the road below, causing the Vytlingams to be catastrophically injured.
[48] The Supreme Court concluded that the applicable tort consisted of dropping the rocks from the highway overpass. The tort of throwing was wholly severable from the use and operation of the motor vehicle to transport the rocks to the overpass. As the chain of causation was broken, the plaintiffs failed to show that liability arose directly or indirectly from the use or operation of the motor vehicle: see Vytlingam, at paras. 36-39.
[49] In Russo, as previously reviewed, the plaintiff was injured when she was caught in the cross-fire of a drive-by shooting while in a restaurant. She argued that there was no intervening act to break the chain of causation because one of the tortfeasors operated a motor vehicle throughout the act of shooting at the restaurant. The Court of Appeal disagreed as follows, at paras. 33-34:
It is not reasonably expected that automobile insurance will cover injuries or death arising from the joint act of a group of tortfeasors simply because one tortfeasor's involvement in the tortious act consists of operating a motor vehicle. Automobile insurance does not cover injuries caused by robbers inside a bank even though the driver of the getaway car may be legally liable as a joint tortfeasor for the damages suffered.
Here, Ms. Russo's injuries did not arise from Peretz's driving. Instead, her tragic injuries resulted from the shooting by Borrelli and Christoforou. As the respondent submits, the shooting was a distinct and intervening act completely independent from the use or operation of the van. Although the incident can indeed be characterized as a drive-by shooting, this characterization simply means that the vehicle "create[d] an opportunity in time and space for damage to be inflicted": Lumbermens at para. 10. This is not sufficient for the extension of coverage under the OPCF 44R Endorsement.
[50] Intact submits that the circumstances in this matter are analogous to those in Russo. Both cases involve a plaintiff who was injured when struck by an object shot by a passenger in a moving motor vehicle.
[51] Intact argues that the act of intentionally throwing an egg by a passenger from the moving motor vehicle was an intervening act that broke the chain of causation between the driving of the vehicle by the unidentified motorist and the plaintiff's injuries. The throwing of the egg, much like the shooting of the gun in Russo, was a distinct and intervening act completely independent from the use or operation of the motor vehicle for driving purposes. The plaintiff's injuries did not arise from the unidentified motorist's driving. Instead, her injuries resulted from the throwing of the egg by a passenger in the car.
[52] In the alternative, Intact argues that the theory of the plaintiff's cause of action, which is that the speed of the motor vehicle infused the egg with the kinetic energy that allowed it to travel at a speed required to cause the type of injury that she suffered, is flawed because it relies on the "but for" test. Intact submits that the "but for" test is not enough to establish coverage in Ontario under the Endorsement.
[53] Additionally, Intact submits that the plaintiff incorrectly assumes that the egg could not have reached the speed that it allegedly did without the motor vehicle's involvement. Intact submits that it cannot be demonstrated with any degree of certainty that the passenger that threw the egg at the plaintiff did not have the strength and ability to throw objects in a high speed. It is not atypical for baseball and football athletes, for instance, to be able to throw round objects at high speeds.
[54] For the following reasons, I dismiss Intact's submission that the plaintiff has not met the modified causation test.
[55] Vytlingam held that the tort of dropping the rock from an overpass was wholly severable from the use or operation of the motor vehicle; dropping the rock from the overpass after exiting the motor vehicle had nothing to do with the proper or improper use of the motor vehicle. As the chain of causation was broken, the plaintiffs failed to show that liability arose directly or indirectly from the use or operation of the motor vehicle: see paras. 36-39.
[56] I find Vytlingam to be distinguishable from the present matter, where an egg was thrown from a speeding motor vehicle, causing injury. In this case, the motor vehicle was in motion and the egg was thrown from within the motor vehicle. The tortfeasors did not exit the motor vehicle in order to throw the egg(s).
[57] The facts in Russo are closer to the facts in the present matter. The court found the driver, Peretz, to be a joint tortfeasor in the drive-by shooting as Peretz drove the motor vehicle into the parking lot, where the passenger(s) in the motor vehicle discharged multiple rounds into the coffee shop, wounding Ms. Russo, and then fled the scene in the motor vehicle. The court stated the following, at para. 28:
On the facts of this case, Peretz is clearly liable in tort to Ms. Russo as a joint tortfeasor for his involvement in the drive-by shooting, as he acted in furtherance of the wrong that resulted in her injury: see Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at para. 74, citing John G. Fleming, The Law of Torts, 8th ed. (Sydney, Australia: The Law Book Company Limited, 1992), at p. 255.
[58] Likewise, in the present matter, the driver of the motor vehicle is also liable as a joint tortfeasor as he too "acted in furtherance of the wrong that resulted in [the plaintiff's] injury": Russo, at para. 28.
[59] Although Peretz was found to be liable as a joint tortfeasor, Ms. Russo was not successful in obtaining coverage for her injuries under the OPCF 44R endorsement. The Court of Appeal held that Ms. Russo's injuries arose from the shooting, and not from the use or operation of the motor vehicle. As stated by the court, at para. 34:
Here, Ms. Russo's injuries did not arise from Peretz's driving. Instead, her tragic injuries resulted from the shooting by Borrelli and Christoforou. As the respondent submits, the shooting was a distinct and intervening act completely independent from the use or operation of the van. Although the incident can indeed be characterized as a drive-by shooting, this characterization simply means that the vehicle "create[d] an opportunity in time and space for damage to be inflicted": Lumbermens at para. 10. This is not sufficient for the extension of coverage under the OPCF 44R Endorsement.
[60] The present matter is distinguishable from Russo. I find that throwing egg(s) from a vehicle travelling 50 to 60 kph, resulting in injury, is not, as held in Russo, at para. 34, "a distinct and intervening act completely independent from the use or operation of the [motor vehicle]". Nor do I find, as held in Russo, that the vehicle merely "create[d] an opportunity in time and space for damage to be inflicted".
[61] As set out in the report, absent speed and kinetic energy imparted into the egg by the vehicle, the plaintiff would not have suffered a choroidal rupture and vitreous hemorrhage to her eye when struck by the egg. The report opined that a driver in charge of a motor vehicle travelling 60 to 70 kph, instead of the posted 50 kph, increases the likelihood of the plaintiff suffering injuries from between 1 per cent and 49 per cent to between 13 per cent and 84 per cent. Thus, only by speeding did the driver make the plaintiff's injury more likely than not. As discussed above, and in accordance with Huang, I am only relying on the report as "some evidence" for the limited purpose of assessing whether there is a genuine issue requiring a trial.
[62] On these discrete facts, I find that the modified causation test has been met. Unlike in Russo and Vytlingam, in the present matter there was an unbroken chain of causation linking the claimed loss or injuries to the use and operation of the motor vehicle, which is more than simply fortuitous or incidental.
[63] Further, the driver was independently negligent in failing to stop his vehicle, or slow it down to the point of eliminating the effect of the vehicle upon the egg when he knew or ought to have known that the use of his motor vehicle would contribute to the impact of the egg about to be thrown in the direction where pedestrians may be present.
[64] Applying the principles in Hryniak, I find there is a genuine issue for trial. The plaintiff has met both the purpose test and the modified causation test. The summary judgment motion brought by Intact seeking dismissal of the plaintiff's action is dismissed. The companion summary judgment motion brought by the Superintendent is therefore rendered moot.
[65] If the parties are unable to agree on costs, they may make written submissions. First, counsel for the plaintiff shall deliver submissions by April 16, 2019. Then, within 15 days of receipt of those submissions, counsel for Intact shall deliver submissions to be followed 15 days later by counsel for the Superintendent. Within five days of receipt of submissions from the Superintendent, counsel for the plaintiff may deliver a brief reply.
Motions dismissed.