Ms. Gilbraith started an accident benefits claim under the Family Protection Coverage Endorsement (OPCF 44) of her father’s auto policy with Intact, which provides coverage in unidentified driver cases. Intact refused to pay for her treatment, claiming that she had not suffered an “accident”, but had been a victim of assault. The parties failed to resolve this dispute at mediation, and a hearing was held at the Licence Appeal Tribunal (LAT) early in 2018.
At the LAT hearing, Adjudicator Ferguson agreed with Intact, and dismissed the claim. In reaching this decision, he applied a two-part test from a 2004 Ontario Court of Appeal case called Greenhalgh v. ING:
- Did the incident arise out of the use or operation of an automobile? and
- Did such use or operation of an automobile directly cause the impairment?
The Adjudicator felt that Ms. Gilbraith’s injury was caused by the intentional act of throwing an egg, and the fact that it was thrown from a car was incidental to the injury.
This is not the correct test to determine whether an “accident” has occurred. The actual test is set out in a 2007 Supreme Court case called Vytlingam (whichAdjudicator Ferguson mentions in his reasons). The Vytlingam test asks:
- Did the incident occur in the course of the ordinary and well-known activities of automobiles?
- 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?
This “modified causation” test expands the range of activities that might lead to an accident involving a motor vehicle. Rather than challenge the LAT decision, Ms. Gilbraith commenced the present court case. She also sued the Superintendent of Financial Services seeking uninsured coverage from the Motor Vehicle Accident Claims Fund if Intact was successful.
Intact (and the Superintendent) moved for summary judgment dismissing the claim, arguing that there was no genuine issue requiring a trial of the matter. It repeated its position that the egg throwing was an intentional act, and the fact that the assailant was in a car was not determinative. It claimed that Ms. Gilbraith’s case was analogous to the unsuccessful plaintiffs’ in Vytlingamand in Russo v. John Doe, a 2009 Court of Appeal case.
InVytlingam, the tortfeasors used a car to transport a large rock to an overpass. They exited the car and dropped the rock into oncoming traffic, ultimately causing catastrophic injuries to the Vytlingams. The Supreme Court held that although transporting items including rocks was an ordinary and well-known use of automobiles, the chain of causation was broken when the tortfeasors exited the car. The act that caused the injuries was entirely separate from the use or operation of the car.
In Russo, Ms. Russo was rendered paraplegic after being caught in the cross-fire of a “drive-by” shooting. Again, the purpose test was met, as cars are indeed used for illegal activities. And again, the Court held that the modified causation test was not satisfied. The shooting was a distinct and intervening act completely independent from the use or operation of the van. Although it was described as a “drive-by”, the Court found that this merely meant that the van “created an opportunity in time and space for damage to be inflicted”.
Ms. Gilbraith presented the novel argument that the moving vehicle’s velocity added significantly to the force of the egg’s impact, and that if the car had been either stationary, or even proceeding at the 50km/h speed limit, she would not have sustained the life-changing injury to her eye. In support, she submitted a biomechanical engineering report that explained the relative forces.
If, as the report claimed, the added force imparted by the car’s velocity was the determining factor in the extent of the damage to Ms. Gilbraith’s eye, then the use or operation of the vehicle was a cause of the injury- whereas Ms. Russo’s spinal injury was caused by a bullet and was not influenced significantly (if at all) by the van’s velocity.
On a Summary Judgment motion, an expert report cannot be admitted for the truth of its contents unless the other party has had an opportunity to cross-examine. Since this had not happened, Ms. Gilbraith could not rely on her expert’s opinion. However, Justice Sosna held that the report’s unproven claimswere sufficient to demonstrate that there was a genuine issue requiring a trial. Therefore, he held in Ms. Gilbraith’s favour.
If you have been seriously injured in an accident involving the direct or indirect use or operation of a motor vehicleand have questions about this case or your accident benefits claim in general, we are pleased to offer a free consultation. Campisi LLP– “Clients First, ExcellenceAlways!”