A driver may still be said to be operating a vehicle even though not behind the wheel. Various inferences were capable of being drawn from the evidence. As such the case should not be decided on summary judgment.

Williams v. Di-Carlo, [2006] O.J. No. 1415, Ontario Superior Court of Justice

The Insured was the driver of an uninsured vehicle which broke down on the expressway. He got out to telephone for assistance and was standing at the curb about two car-lengths from his vehicle when it was struck in the rear by the defendant’s vehicle. The force of the impact propelled the Insured’s vehicle into the Insured. The Insured suffered serious injuries.

The defendant brought an application for summary judgment. The issue was whether the Insured was barred from recovery for his personal injuries by operation of s. 267.6(1) of the Insurance Act, R.S.O. 1990, c. 1.8.

Section 267.6(1) provides that a person is not entitled to recover any loss or damage from bodily injury arising directly or indirectly from the use or operation of an automobile if, at the time of the incident, the person was contravening subsection 2(1) of the Compulsory Automobile Insurance Act. Subsection 2(1) of the Compulsory Automobile Insurance Act states that no person shall operate a motor vehicle on a highway unless the motor vehicle is Insured under a contract of automobile insurance.

The applications judge, in dismissing the defendant’s application, found that it could not be said that there was no genuine issue for trial. The issue of whether or not the Plaintiff was directly or indirectly involved in the operation of his motor vehicle involved the determination of a question of fact or mixed fact and law.

In dismissing the appeal, the Ontario Superior Court of Justice noted that various inferences were capable of being drawn from the evidence. The case should not be decided without a full canvassing of the facts and the law at trial.

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