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Insurance - Auto - "Accident"

. Madore v. Intact Insurance Company

In Madore v. Intact Insurance Company (Div Court, 2023) the Divisional Court considered whether a fall from the top of a stationary but connected camper trailer while cleaning constituted an 'accident' with the meaning of SABS s.3(1). The more specific issue was whether specific causation need be shown in order for there to have been an 'accident' (it didn't), or only the occurence of an accident during insurance-covered activities [para 24-49].

. Porter v. Aviva Insurance Company of Canada

In Porter v. Aviva Insurance Company of Canada (Div Ct, 2021) the Divisional Court set out the test for a motor vehicle 'accident':
[11] In both Chisholm v. Liberty Mutual Group (2002), O.R. (3d) 776 and Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338, the Court of Appeal for Ontario identified a two-part test to determine whether there has been an accident within the meaning of s. 3(1) of the Schedule. The two questions to be considered are:

1. Did the incident arise out of the use or operation of an automobile (the “purpose test”); and

2. Did such use or operation of an automobile directly cause the impairment (the “causation test”).

....

[14] In essence, the Vice Chair concluded that the use and operation of the car was a direct cause of Ms. Porter’s impairments because she would not have been injured but for or “as a result of” the location of the car in the driveway. In so doing, the Vice Chair conflated the “but for” test with the direct causation test. This is an error in law. If the “but for” test is met then the act or omission is a factual cause of the injury; however, the “but for” test does not conclusively establish legal causation: Greenhalgh, at para. 37. Legal entitlement to accident benefits requires not just that the use or operation of a car be a cause of the injuries, but that it be a direct cause: Chisholm, paras. 25-26.

[15] In this case, the use or operation of the Lyft car cannot be said to be a direct cause of Ms. Porter’s injuries. More is required than establishing that the car brought the applicant to the location of the incident (see Greenhalgh, at para. 37; Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92), and more is required than the car being the reason why Ms. Porter was at the location where the incident occurred. The location of the car in the driveway could be said to have led to Ms. Porter’s injuries – and in that limited sense, her injuries were “as a result of” or connected to the use and operation of the car. But the use and operation of the car did not directly cause her injuries.

[16] While it may be said that but for where the Lyft car parked in the driveway, Ms. Porter would not have slipped on the ice and fallen, this is insufficient to establish direct causation. The dominant factor that physically caused Ms. Porter’s injuries was the icy, snow-covered driveway. The use or operation of the Lyft car was “at best ancillary”: Chisholm, at para. 34.
. Francia v. Licence Appeal Tribunal

In Francia v. Licence Appeal Tribunal (Div Ct, 2021) the Divisional Court considered the definition of "accident" for MVA insurance purposes:
[9] The LAT applied the two-part test for determining whether an incident is an “accident” under the SABS. The LAT summarized the purpose and causation tests as follows, citing Amos v. Insurance Corporation of British Columbia, 1995 2 S.C.R. 405, Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (CA), and Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338:
Purpose test: Did the accident result from the ordinary and well-known activities to which automobiles are put?

Causation test: Was the use or operation of the vehicle a cause of the injuries? If the use or operation of the vehicle was the 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 applicant’s injuries?
....

[14] The appellant argues that the LAT erred in law by requiring Mr. Francia to show that the purpose test was met twice in Scenario 1. The purpose test, used to determine whether an incident constitutes an “accident” for the purposes of the SABS, is whether the incident resulted "from the ordinary and well-known activities to which automobiles are put". This is the test articulated by the LAT. The purpose test was described by Binnie J. in Vytlingam (Litigation Guardian of) v Farmer, 2007 SCC 46 at para 19 as follows:
….The "ordinary and well-known activities to which automobiles are put" limits coverage to motor vehicles being used as motor vehicles, and would exclude use of a car as a diving platform (as above) or retiring a disabled truck to a barn to store dynamite (which explodes), or negligently using the truck as a permanent prop to shore up a drive shed (which collapses, injuring someone). In none of these cases could it be said that the tortfeasor was at fault as a motorist. In none of these cases could it be said that the motor vehicle was being used as a motor vehicle. That is the sort of aberrant situation that the Amos purpose test excludes, and nothing more…
[15] The Court of Appeal adopted this passage as affirming both the statement of the purpose test and its application to SABS cases in Economical Mutual Insurance Co. v. Caughy, 2016 ONCA 226 at paras. 16-17.


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Last modified: 17-01-23
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