COURT FILE NO.: CV-21-0315-00
DATE: 2023-01-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kevin Cernjul
J. Lester, for the Applicant
Applicant
- and -
The Nordic Insurance Company of Canada
E. Adams, for the Respondent
Respondent
HEARD: October 18, 2022, at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Decision On Application
[1] Mr. Cernjul (the “Applicant”) seeks a declaration that his automobile insurer, the Nordic Insurance Company of Canada (the “Respondent”) has a duty to defend him in a civil action.
[2] The action arises out of an allegation that the Applicant committed a nuisance and caused harm to two individuals when he played loud music from speakers placed in the rear hatch of his vehicle.
[3] The Respondent takes the position that the claims in the action do not arise from the use and operation of the Applicant’s automobile, and therefore there is no duty to defend. The Applicant argues that the Respondent’s position is an overly narrow interpretation of the insurance policy, and the law. This is the primary issue requiring determination by me.
[4] For reasons set out below, I agree with the Respondent and find that on the facts and circumstances of this case, there is no duty to defend.
THE FACTS:
[5] On October 6, 2019, an anti-abortion rally was happening near the intersection of Memorial and Central Avenue in the City of Thunder Bay.
[6] The Applicant joined a counter-protest that was being held in a parking lot adjacent to where the anti-abortion protesters were marching.
[7] As part of the counter-protest the Applicant parked approximately 20 feet away from the anti-abortion protesters and played music from externally powered DJ speakers that had been placed in the hatch area of his 2012 Dodge Journey vehicle (the “Vehicle”). He used the Vehicle to transport the speakers and to hold them while music was playing. The speakers were connected to the Applicant’s phone and not the Vehicle. The speakers were powered by an external gas-powered generator and not the Vehicle. The music was intended to disrupt the anti-abortion rally.
[8] While playing the music at the counter-protest, the Applicant used an external amplifier. He alleges that despite the use of the amplifier, the music was not so loud as to cause damage to the hearing of the people in the vicinity or damage the speakers in the Vehicle.
[9] On January 2, 2020, a civil action was commenced by two of the protestors. An amended pleading was delivered March 5, 2021. The plaintiffs in that action claim general damages from the Applicant in the amount of $300,000, special damages in the amount of $1 million, and punitive damages of $1 million.
[10] The plaintiffs to the civil action allege they have suffered permanent hearing loss, neurological and psychological impairments (emotional distress and nervous shock), and a lessened enjoyment of life as a result of the Applicant playing music from the Vehicle on October 6, 2019. They allege that his actions and behaviour in playing the loud music constituted a public nuisance.
[11] On October 6, 2019, the Vehicle was insured by the Respondent. The terms of the policy provide coverage to the Applicant for liability arising “as a result of owning, leasing, or operating the automobile…”.
[12] The relevant provisions of the policy read:
3.2 Who is Covered
You are covered when you, or anyone else in possession of a described automobile with your consent, uses or operates it.
3.3 What We Cover
You or other insured persons may be legally responsible for the bodily injury to, or death of others, or for damage to the property of others as a result of owning, leasing or operating the automobile or renting or leasing another automobile. In these cases, we will make any payment on your or other insured persons’ behalf that the law requires, up to the limits of the policy.
3.3.1 If Someone Sues You
By accepting this policy you and other insured persons irrevocably appoint us to act on your or their behalf in any lawsuit against you or them in Canada, the United States of America or any other jurisdiction designated in the Statutory Accident Benefits Schedule arising out of the ownership, use or operation of the automobile.
If someone sues you or other insured persons insured by this Section for losses suffered in an automobile incident, we will provide a defence and cover the costs of that defence, including investigation costs. We will pay all legal costs the court assesses against you and other insured persons in the lawsuit we have defended.
If there is a judgment against you or other insured persons, we will pay any post- judgment interest owed on that part of the amount the court orders that falls within the liability limits of your policy.
We reserve the right to investigate, negotiate and settle any claim out of court if we choose.
[13] On May 6, 2021, the Applicant requested that the Respondent provide coverage with respect to the civil action in accordance with the duty to defend and indemnify terms of the policy. On June 9, 2021, the Respondent notified the Applicant that it would not be defending or indemnifying him with respect to the action. The Respondent took the position that the claim fell outside the scope of the Applicant’s coverage, and therefore the duty to defend or indemnify was not engaged.
ANALYSIS:
Legal Framework:
[14] An insurer’s duty to defend arises when an action is brought against an insured alleging an act under the policy of insurance and claiming damages that may be payable under the policy: Morrow (Litigation Guardian of), v. Symons, 85 O.R. (3d) 365, at para. 16.
[15] In considering whether the duty to defend arises, the court should consider only the claim as alleged in the statement of claim and the provisions of the policy: Ibid.
[16] The duty to defend is engaged where the facts alleged in the pleadings, if proven true, would require the insurer to indemnify the insured: Monenco Ltd. V. Commonwealth Insurance, 2001 SCC 49, at para. 28.
[17] The court must consider the substance of the allegations advanced as against a litigant, rather than simply the labels chosen by a plaintiff in the statement of claim. This is necessary to determine if the true nature of the allegations set out in the pleadings could possibly support a claim for indemnity under the policy: Non-Marine Underwriters, Lloyd’s London v. Scalera, 2000 SCC 24, at para. 50.
[18] The threshold is low. The “mere possibility” that a claim may succeed for coverage is sufficient to trigger the duty to defend. Traditionally, policies of insurance have been interpreted broadly in favour of the insured to ensure that the purpose for which the insurance is sold is not nullified. Any uncertainty as to whether a claim falls within the policy’s coverage should be resolved in favour of the insured: Nichols v. American Home Assurance Co., 1990 CanLII 144 (SCC), [1990] 1 S.C.R. 801, at pg. 327; Amos. v. I.C.B.C., 1995 CanLII 66 (SCC), [1995] S.C.J. No. 74, at pg. 414, para. 16; Morrow, at para. 16.
[19] The parties agree that the Applicant’s policy conforms to the requirements of section 239 of the Insurance Act, R.S.O. 1990, c. I.8. Section 239 mandates coverage for liability for loss or damage:
a) arising from the ownership or directly or indirectly from the use or operation of an automobile; and
b) resulting from bodily injury to or the death of any person and damage to property.
[20] In Amos v. I.C.B.C., the Supreme Court of Canada considered a policy that conformed with similar statutory language and adopted a two-part test. The parties agree that this is the test to be adopted.
[21] The test set out in Amos v. I.C.B.C., at pg. 415, requires the following questions to be answered:
a. Did the accident result from the ordinary and well-known activities to which automobiles are put? [purpose part of the test]
b. If so, is there some nexus or causal relationship between the injuries and the ownership, use or operation of the vehicle, or is the connection merely incidental? Consideration must also be given to whether there is some intervening act that breaks the chain of causation. [causation part of the test]
[22] Generally, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the insured is entitled to coverage: Amos, at pg. 420.
[23] Having said this, the use of a vehicle must be more than simply providing an “opportunity” for the alleged damage to be inflicted. The loss must arise from a risk using the vehicle that arises in the “ordinary course of things”.
[24] Coverage under the automobile insurance policy should not be stretched so far that it is interpreted in a way that does not give effect to the reasonable expectations of both insured and insurer: Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, [2007] S.C.J. No. 46, 2007 S.C.C. 46, at para. 4, citing Reid Crowther & Partners Ltd. V. Simcoe & Erie General Insurance Co., 1993 CanLII 150 (SCC), [1993] 1 S.C.R. 252, at pg. 269.
The Positions of the Parties:
[25] The Applicant argues that:
a) The Applicant’s use and operation of his vehicle is central to the plaintiffs’ claims. In the statement of claim, the plaintiffs identify and describe the Applicant’s vehicle in great detail (paragraph 4 of the claim), specifically reference the placing of the speakers along the rear hatch of the Vehicle (paragraph 6 of the claim), and then reference the negligence of the Applicant in the playing of music from those speakers at a high volume, thereby committing a nuisance (paragraph 7 of the claim).
b) The Applicant parked the Vehicle in a parking lot, which is a recognized common use for a vehicle: DiMarco v. Chubb Insurance Co. of Canada, 2012 CarswellOnt. 1946, at paras. 26-28, 33-37; Ash v. Wawanesa Mutual Insurance Co., 2006 CarswellOnt 5051, at para. 28.
c) While parked, the Vehicle was integral to the Applicant’s ability to shelter speakers and play music. The vehicle was used to transport the speakers. The transport of persons and personal property are well-established uses of vehicles: Gramak Ltd. v. State Farm Mutual Automobile Insurance Co., 1975), 1975 CanLII 427 (ON SC), 63 D.L.R. (3d) 630 (Ont. H.C.), at paras. 20-23. He parked and played music, which is a well-known use.
d) “But for” him driving the Vehicle to the counter-protest, using it to transport the speakers, and using his vehicle to shelter the speakers so that music could be played, the Plaintiffs would never have suffered their alleged injuries. The Vehicle facilitated the playing of the music. It is a foreseeable risk that hearing damage could result from the use or operation of a vehicle, particularly one using audio equipment. Causation is established.
e) The Respondent’s position that the speakers were not part of the car, and therefore not covered by the policy, is an overly narrow interpretation.
[26] The Respondent argues that the Applicant fails at both the purpose and causation elements of the Amos test. Specifically:
a) The alleged injury did not arise from the use of the vehicle to store or convey personal property. The Applicant interrupted his motoring to participate in a protest. The plaintiffs to the action do not complain about the use and operation of the insured vehicle. They complain about the externally powered DJ speakers that are alleged to have damaged their hearing.
b) Even if placing DJ speakers in a car is considered an ordinary use of a vehicle, the chain of causation between the placement of the speakers in the hatch and the incident was clearly broken when the insured powered the speakers with a portable gas generator, wired them to an external amplifier and his phone and then used the speakers as part of a political protest. This is not a risk arising in the “ordinary course of things” from using a vehicle.
Discussion:
[27] This case is analogous in many ways to Citadel General Assurance Co. v. Vytlingam. In that case Vytlingam was severely injured by a boulder that was thrown from an overpass onto the car in which he was travelling on a highway below. The perpetrators used the vehicle to put the boulders into and transport to the overpass, and then after striking motorists they used it to escape. Vytlingam sought to recover against his own insurance policy for the damages he was legally entitled to recover from the perpetrators, who were not adequately insured.
[28] On a motion for summary judgment, the motions judge held that the perpetrators’ vehicle was central to their plan and was required to transport both them and the boulders to the scene. As the transportation of goods was an ordinary and common use of a motor vehicle, the judge held that the purpose portion of the Amos test was satisfied. The Ontario Court of Appeal upheld the decision. The Supreme Court of Canada reversed the decision.
[29] Vytlingam was a case in which the issue was indemnification under the policy of insurance as opposed to merely the duty to defend. Having said this, the analysis and result are instructive and equally applicable.
[30] In Vytlingam, s. 239 of the Insurance Act, and the Amos test were considered. Binnie J., speaking for a unanimous court at para. 11, noted that the question to be asked arising out of the first part of the Amos test is “Did the accident occur in the course of the ordinary and well-known…” At para. 16, Binnie J., further noted that Amos signalled that:
…someone who uses a vehicle for a non-motoring purpose cannot expect to collect motor vehicle insurance. If, for example, a claimant got drunk and used her car as a diving platform from which to spring head first into shallow water, and broke her neck, she could not reasonably expect coverage from her motor vehicle insurer, even though, in a sense, she “used” her motor vehicle. The same conclusion is compelled under s. 239(1)(a) because an injury resulting from such an off-beat use could not sensibly be said to arise “directly or indirectly from the use or operation” of the motor vehicle as a motor vehicle.
[31] Similarly in L. Blackburn Excavating Ltd. v. Salmon Arm Machine Shop Ltd. (1977), 1977 CanLII 1738 (BC SC), 76 D.L.R. (3d) 190 (B.C.S.C.), and Cordeiro v. Lafarge Canada Inc., (1997), 1997 CanLII 26916 (ON CJ), 49 C.C.L.I. (2d) 152 (Ont. Gen. Div.), it was determined that where an insured uses a vehicle as a platform for some other purpose disconnected to the purposes of the vehicle itself, coverage will not attach.
[32] Applying the Amos test, I find that this case must fail on both the purpose and causation aspects of the analysis.
[33] Firstly, the “true nature” of the claim as revealed by the Statement of Claim is that the Applicant is alleged to have created a nuisance and caused the plaintiffs’ losses by operating externally powered commercial DJ speakers as part of a political protest.
[34] Secondly with respect to purpose, the purpose to which the Vehicle was put was not, at the time of the alleged tort, an ordinary and well-known activity for which vehicles are put. It was used as nothing more than a platform from which the speakers could be played. The fact that the Applicant and the speakers were transported to the site in the Vehicle, which is a well-known activity for which vehicles are put, does not change the fact that the dominant purpose at the time the tort is alleged to have been committed was nothing more than a platform for the speakers. The music that was being played from speakers did not come from the use of the motor vehicle, the speakers were powered externally by a source other than the vehicle, and in circumstances in which the hatch of vehicle was being used merely as a platform to rest the speakers on, it cannot be said that the tort occurred in the course of ordinary and well-known uses of a vehicle.
[35] This was not, as the Applicant argues, simply a case of someone playing music from their parked car. Parking has been recognized as an ordinary and well-known use of a vehicle. In this case, the alleged tort did not occur in the course of that common activity. The music was not simply played from the Vehicle itself, from speakers that formed part of the Vehicle.
[36] Even if I am incorrect on the purpose portion of the Amos test, as was the case in Vytlingham, this case must fall on the causation aspect of the test.
[37] In this case, the Vehicle is implicated in a manner that is merely incidental. It was not the use and operation of the Vehicle that is alleged to cause the plaintiffs’ injuries in the statement of claim. While the Vehicle is implicated, it is implicated merely as the site used by the Applicant to place the speakers that are alleged to have caused the damage.
[38] The court must look at what are the elements of the tort itself. In this case, the plaintiffs to the action do not allege that anything associated with the transportation of the Applicant or the speakers in the vehicle, or the act of parking, caused the nuisance that they allege caused their damages. Rather they argue that the playing of loud music from those speakers, that were not part of the ordinary use of a vehicle, caused the nuisance and their losses. The tort alleged is an event wholly severable from the use and operation of the Applicant’s vehicle.
ORDER:
[39] For these reasons the Application is dismissed.
[40] The Respondent is, prima facie, the successful party to the Application. If the parties cannot agree as to costs:
a) The Respondent shall deliver written submissions, not exceeding 5-pages double-spaced (excluding the Bill of Costs, any caselaw, Offers to Settle or other necessary attachments) within 30 days of receiving these reasons, failing which costs shall be deemed to have been resolved.
b) The Applicant shall deliver responding submissions, subject to the same page restrictions, within 30 days after receipt of the Respondent’s submissions; and
c) Any Reply submissions shall be delivered within 15 days of receipt of the responding submissions, limited to 2-pages, double-spaced (excluding necessary attachments).
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: January 20, 2023
COURT FILE NO.: CV-21-0315-00
DATE: 2023-01-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kevin Cernjul
Applicant
- and -
The Nordic Insurance Company of Canada
Respondent
DECISION ON APPLICATION
Nieckarz J.
Released: January 20, 2023