A person injured while loading his car may not be entitled to automobile benefits

The use or operation of a vehicle does not directly cause impairment where the injury is caused by an intervening act that cannot reasonably be said to be part of the “ordinary course of things” associated with the use or operation of a vehicle. An injury does not arise directly or indirectly from the use or operation of a vehicle where the involvement of a vehicle is merely ancillary or fortuitous to the injuries inflicted.

Martin v. 2064324 Ontario Inc. (c.o.b. Freeze Night Club), [2013] O.J. No. 172, January 17, 2013, Ontario Court of Appeal, E.A. Cronk, G.J. Epstein and S.E. Pepall JJ.A.

This was an appeal of a motion judge’s order that the insured was entitled to no-fault statutory accident benefits (“SABs”) and indemnification for damages for personal injuries from an automobile insurer. The issue on appeal were: i) whether the insured was injured as a result of an “accident” for the purpose of s. 2(1) of the Statutory Accident Benefits Schedule – Accident on or after November 1, 1996 under O. Reg. 403/96 to the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”); and ii) whether the insured’s injuries arose “directly or indirectly from the use [or] operation of his automobile as contemplated in s. 239(1) of the [Act]”, thereby triggering the indemnity provisions of his automobile policy.

The insured was assaulted by two assailants while loading his car in the parking lot after finishing work. The assailants pepper sprayed the insured and forced him into the trunk of his car. The men bashed the insured’s head while making him drive the standard transmission vehicle. After driving to another parking lot, the men pushed the insured’s head to the ground and kicked his chest and sides. The assailants broke two of the insured’s fingers. The assailants then got back into the vehicle and drove away. As they were leaving, they drove over the insured’s foot.

The insured submitted a claim to the insurer for SABs and indemnity under the unidentified, uninsured and underinsured coverage provisions in his automobile policy. The insured alleged that he sustained numerous on-going injuries including injuries to his hands, head (including a head injury from when his head struck the trunk of his car), right foot, right knee, torn muscles and psychological harm. The insurer denied his claim. The insured brought an action against the insurer, the two assailants and his employer.

The insurer moved for summary judgment in the form of an order dismissing the insured’s claim. The insurer argued: i) the insured was not involved in an “accident”; and ii) the insureds injuries were not caused by the use or operation of an automobile. The motion judge denied the insurer’s motion and granted a declaration that the insured was injured as a result of an accident and his injuries arose “directly or indirectly from the use [or] operation of his automobile”.

The court of appeal allowed the appeal in part. The motion judge concluded the insured’s vehicle was “part of the instrumentality through which the assaults were committed” and so the causation element was established for the purpose of the SABs provision. The Court of Appeal overturned this finding and stated the motion judge failed to appreciate that the causation test set out by the Supreme Court in Amos does not apply to the interpretation of “accident” in the schedule. Instead, the modified causation test applied. The court went through the second branch of the modified causation test as set out by the same court in Downer v. Personal Insurance Co., 2012 ONCA 302, and concluded the assaults on the insured, rather than the use or operation of the vehicle, were the direct causes of the insured’s injuries. The motion judge failed to inquire as to whether an intervening act which was not part of the ordinary “course of things” or “the normal incident of the risk created by the use or operation of the car” resulted in the injuries. The court concluded the insured was not injured as a result of an “accident”, with the possible exception of the injury he sustained to his right foot.

With respect to the indemnity claim, the court considered s. 239(1)(a) of the Act which contemplates loss or damage “arising … directly or indirectly from the use or operation of [an insured] automobile”. The court noted this is broader than the provision for SABs requiring that the injuries be directly caused by an accident. In this case, the injuries arose from assaults rather than the conduct of the assailants as motorists. The court rejected the argument that the insurer reasonably expected to provide indemnification for injuries arising from assaults which only incidentally involve a vehicle. It concluded that, with the possible exception of the foot injury, the insured’s injuries did not arise directly or indirectly from the use or operation of his automobile. The claim for indemnification was bound to fail and the insurer was entitled to summary judgment dismissing of the action save for the claims concerning the foot injury.

This case was originally summarized by Djuna M. Field and originally edited by David W. Pilley of Harper Grey LLP.

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