DATE:  20050607

COURT OF APPEAL FOR ONTARIO

BORINS, FELDMAN and CRONK JJ.A.

 

 

DOCKET: C40602

B E T W E E N :

)

 

 

)

 

HAROLD GEORGE HERBISON, MARY ANN HERBISON and JORDAN DANIEL HERBISON, JOSEPH HAROLD HERBISON, LYDIA RACHEL HERBISON by their Litigation Guardian HAROLD GEORGE HERBISON

))

)

)

)

)

)

Barry D. Laushway and

Scott O. Laushway,

for the appellants and respondents by cross-appeal, the Herbison Group

 

 

)

 

Plaintiffs (Appellants)

)

 

 

)

 

- and -

)

 

 

)

 

LUMBERMENS MUTUAL CASUALTY COMPANY

))

)

)

)

Mark O. Charron and

Colin R. Dubeau,

for the respondent and appellant by cross-appeal, Lumbermens Mutual Casualty Company

Defendant (Respondent)

)

 

 

)

 

A N D  B E T W E E N :

)

 

 

)

 

 

)

DOCKET: C39948

HAROLD GEORGE HERBISON, MARY ANN HERBISON and JORDAN DANIEL HERBISON, JOSEPH HAROLD HERBISON, LYDIA RACHEL HERBISON by their Litigation Guardian HAROLD GEORGE HERBISON

)

)

)

)

)

)

)

 

 

)

 

Plaintiffs (Respondents)

)

 

 

)

 

 

)

 

- and -

)

 

 

)

 

LUMBERMENS MUTUAL CASUALTY COMPANY

)

)

 

 

)

 

Defendant (Appellant)

)

 

 

)

Heard:  December 13, 2004

On appeal from the order of Justice Denis J. Power of the Superior Court of Justice dated April 24, 2003, reported at [2003] O.J. No. 1731, and on appeal and cross-appeal from the judgment of Justice Bernard J. Manton of the Superior Court of Justice dated July 22, 2003, reported at [2003] O.J. No. 3024.

CRONK J.A. (Dissenting):

I.         Overview

[1]               These proceedings arise out of a hunting accident in which Harold Herbison was seriously injured when he was shot in the leg with a rifle by a member of his hunting party, Fred Wolfe, who mistook Mr. Herbison for a deer.

[2]               Mr. Wolfe and his wife, Betty Wolfe, had driven to the hunting grounds in Mr. Wolfe’s pick-up truck.  At the time, Mr. Wolfe was a named insured under a standard motor vehicle liability insurance policy issued by Lumbermens Mutual Casualty Company (the “Policy”).  Pursuant to s. 239(1) of the Insurance Act, R.S.O. 1990 c. I.8 (the “Act”), the Policy provided coverage for loss or damage “arising from the ownership or directly or indirectly from the use or operation” of an automobile owned by the insured. 

[3]               After the accident, Mr. Herbison and members of his family (the “Herbison Group”) sued the Wolfes in negligence, claiming damages for their losses arising from the hunting accident (the “Tort Action”).  At trial, Mr. Wolfe was found liable in negligence for the damages sustained by the Herbison Group.

[4]               Prior to the trial of the Tort Action, the Wolfes applied for declarations that Lumbermens was obliged under the Policy to defend the Tort Action and to indemnify them for all sums that they might become liable to pay to the Herbison Group (the “Coverage Application”).  The Coverage Application was dismissed and Lumbermens did not participate in the Tort Action.

[5]               After the trial, the Herbison Group sued Lumbermens under s. 258(1) of the Act,  seeking to have the proceeds payable under the Policy applied in satisfaction of the sums awarded to them in the Tort Action on the basis that their losses “[arose] from the ownership or directly or indirectly from the use or operation” of Mr. Wolfe’s pick-up truck within the meaning of the coverage condition in the Policy (the “Recovery Action”).

[6]               Lumbermens moved for summary judgment in the Recovery Action, maintaining that the Herbison Group’s claim against it was precluded by the findings in the Tort Action and the Coverage Application (the “Summary Judgment Motion”).

[7]               The Summary Judgment Motion was dismissed, and the Recovery Action proceeded to trial.  The trial judge held that the Herbison Group’s losses did not engage the coverage condition in the Policy, s. 258(1) of the Act therefore did not apply, and Lumbermens had no liability to the Herbison Group under the Policy.  Accordingly, he dismissed the Recovery Action.  In the exercise of his discretion, he awarded no costs to Lumbermens.

[8]               There are three proceedings before this court: (i) the Herbison Group appeals against the dismissal of the Recovery Action; (ii) Lumbermens seeks leave to cross-appeal, and if leave is granted, cross-appeals against the trial judge’s costs disposition in the Recovery Action; and (iii) Lumbermens appeals against the dismissal of its Summary Judgment Motion.

[9]               For the reasons that follow, I conclude that the losses sustained by the Herbison Group did not “[arise] from the ownership or directly or indirectly from the use or operation”[1] of Mr. Wolfe’s pick-up truck on the day of the accident.  Accordingly, I would dismiss the Herbison Group’s appeal against the dismissal of the Recovery Action.  I see no basis upon which to interfere with the trial judge’s discretionary costs disposition in the Recovery Action.  Therefore, I would grant leave to Lumbermens to cross-appeal from that disposition, but would dismiss the cross-appeal. 

[10]         Finally, with respect to Lumbermens’ appeal against the dismissal of its Summary Judgment Motion, we invited submissions from counsel on whether the issues sought to be raised on that appeal were moot.  After considering counsels’ submissions on the question of mootness, we dismissed Lumbermens’ appeal, with reasons to follow.  These reasons include the reasons for that dismissal.

II.        Factual Background

            (1)      The Accident

[11]         On November 2, 1999, Mr. Herbison and Mr. Wolfe planned to participate, with several other persons, in a day of deer hunting.  At approximately 6:00 a.m., just prior to sunrise, Mr. Herbison and his nephew began to walk across a farmer’s field that led to the hunting area.  Mr. Herbison was dressed in an orange safety vest.  The back of the vest was marked with a florescent yellow cross.

[12]         Shortly thereafter, Mr. Wolfe drove his pick-up truck along a rough roadway in the field, towards his assigned hunting station.  Because of his poor health, he was unable to readily walk across the field.  His wife Betty was a passenger in the truck.  It was still dark outside and the headlights of the truck were on.  The muffler on the truck, which was in need of repair, was noisy. 

[13]         As Mr. Wolfe drove across the field, he saw movement in the distance that he assumed was a deer.  In fact, it was Mr. Herbison and his nephew.

[14]         Mr. Wolfe stopped his truck, leaving the engine running.  He opened the door on the driver’s side of the vehicle, got out of the truck, reached into the back of the truck behind the driver’s seat of the cab, and removed his hunting rifle from its case.  He then opened the breech on the rifle, loaded the gun with a bullet, and moved about two and a half to three feet away from the vehicle.  Mr. Wolfe then looked through the scope of his rifle, observed a flash of white that he thought was a white-tailed deer lifting its tail up in preparation for flight, and fired at what he assumed was the deer.  Throughout, his wife remained seated in the truck. 

[15]         At this point, Mr. Herbison and his nephew were standing slightly to the right of the direction in which Mr. Wolfe’s truck was facing.  They had seen and heard the Wolfe truck approaching.  They stopped to let it pass and to have a cigarette, turning their backs to the truck to avoid the glare of its headlights because Mr. Herbison was prone to migraine headaches caused by harsh light.

[16]         The light conditions were poor and the headlights on the truck were the only source of light in the field.  At the trial of the Recovery Action, Mr. Wolfe testified that, although he was not intentionally trying to illuminate a target with his headlights, he would not have “taken the shot” but for the illumination provided by the truck’s headlights.

[17]         Mr. Wolfe’s rifle shot struck Mr. Herbison in the upper thigh, resulting in serious injury.  Mr. Herbison is now permanently disabled.

            (2)      The Litigation 

[18]         The Herbison Group commenced the Tort Action in March 2000.  As I have said, they sued the Wolfes in negligence, claiming damages for the injuries suffered by Mr. Herbison and for associated losses sustained by his family members as a result of the hunting accident.

[19]         In April 2001, the Wolfes commenced the Coverage Application against Lumbermens under rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.  None of the members of the Herbison Group was served with or named as a party to the Coverage Application. 

[20]         By judgment dated August 28, 2001, Power J. of the Superior Court of Justice dismissed the Coverage Application, holding that the circumstances of the hunting accident did not give rise to an obligation to defend or indemnify under the Policy: [2001] O.J. No. 3454.  As a result of this decision, Lumbermens did not participate in the Tort Action.

[21]         The Tort Action was also tried before Power J. who, by judgment dated February 13, 2002, held that the hunting accident occurred as the result of Mr. Wolfe’s negligence in firing his rifle, in the dark, at a target that was a long distance away from him and that he had not properly identified.  Mr. Wolfe was found liable to the Herbison Group for damages in the sum of $832,272.85, together with post-judgment interest and costs.  The claims against Mrs. Wolfe were dismissed.  No finding of contributory negligence was made against Mr. Herbison: [2002] O.J. No. 569 and [2003] O.J. No. 3051.

[22]         On February 26, 2002, the Herbison Group commenced the Recovery Action against Lumbermens under s. 258(1) of the Act, seeking to have the proceeds payable under the Policy applied against the sums awarded to them in the Tort Action on the basis that their proven losses “[arose] from the ownership or directly or indirectly from the use or operation” of Mr. Wolfe’s truck on the day of the accident, thereby engaging coverage under the Policy. 

[23]         Shortly thereafter, Lumbermens moved for an order dismissing or, in the alternative, striking out the Herbison Group’s statement of claim in the Recovery Action, claiming that the circumstances of the hunting accident did not engage coverage under the Policy.  By order dated February 28, 2003, Robertson J. of the Superior Court of Justice directed that this motion be heard by Power J., given his prior involvement with the Tort Action and the Coverage Application. 

[24]         On April 9, 2003, Lumbermens brought its Summary Judgment Motion, in which it argued that the claims advanced by the Herbison Group in the Recovery Action were barred by the principles of res judicata and issue estoppel consequent upon the findings in the Tort Action and the dismissal of the Coverage Application.  By order dated April 24, 2003, Power J. (the “motions judge”) dismissed the Summary Judgment Motion: [2003] O.J. No. 1731.

[25]         The Recovery Action was tried in May 2003 before Manton J. of the Superior Court of Justice (the “trial judge”).  By judgment dated July 22, 2003, he dismissed the Recovery Action, without costs: [2003] O.J. No. 3024.

(3)      Relevant Statutory Provisions

[26]         Pursuant to s. 239(1) of the Act, the Policy provided coverage to the Wolfes against liability imposed by law for loss or damage “arising from the ownership or directly or indirectly from the use or operation” of an automobile owned by the Wolfes and described in the Policy.  Section 239(1) reads:

239(1)            Subject to section 240, every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage,

(a)       arising from the ownership or directly or indirectly from the use or operation of any such automobile; and

(b)       resulting from bodily injury to or the death of any person and damage to property.

[27]         In addition, s. 258(1) of the Act provides:

258(1)            Any person who has a claim against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy, even if such person is not a party to the contract, may, upon recovering a judgment therefor in any province or territory of Canada against the insured, have the insurance money payable under the contract applied in or towards satisfaction of the person’s judgment and of any other judgments or claims against the insured covered by the contract and may, on the person’s own behalf and on behalf of all persons having such judgments or claims, maintain an action against the insurer to have the insurance money so applied.

III.      Issues

[28]         The issues in these proceedings are:

(1)       whether the trial judge erred by concluding in the Recovery Action that the Policy does not respond to the proven losses of the Herbison Group;

(2)       whether the trial judge erred, in the exercise of his discretion, by awarding no costs to Lumbermens in the Recovery Action; and

(3)       whether the motions judge erred by dismissing Lumbermens’ Summary Judgment Motion, thereby permitting the Recovery Action to proceed to trial.

IV.      Analysis

(1)              Does the Policy Respond to the

Losses of the Herbison Group?

 

[29]         Section 258(1) of the Act permits a stranger to a motor vehicle liability insurance policy to maintain an action against an insurer to have insurance proceeds payable under the policy applied against a money judgment obtained by the claimant, if the claimant has “a claim against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy” [emphasis added]. 

[30]         In this case, Mr. Wolfe was a named insured under the Policy, his pick-up truck was specified in the Policy and the Herbison Group obtained a money judgment against him in the Tort Action.  Thus, the Herbison Group was entitled to succeed in the Recovery Action if the Policy “provided indemnity” for the losses or damages sustained by it in consequence of the hunting accident.  The issue whether the Policy “provided indemnity” within the meaning of s. 258(1) of the Act, is controlled by whether the Herbison Group’s losses or damages “[arose] from the ownership or directly or indirectly from the use or operation” of the Wolfe truck on the day of the hunting accident, within the meaning of s. 239(1) of the Act.

[31]         There is no dispute that the Policy contained a coverage condition that reflected the insurance cover mandated by s. 239(1) of the Act.  Section 239(1) necessitates coverage in every insurance contract in Ontario “evidenced by an owner’s policy” for loss or damage where two prerequisites are satisfied, namely, where the loss or damage: (i) “[arises] from the ownership or directly or indirectly from the use or operation” of an automobile owned by the insured named in the insurance contract; and (ii) “[results] from bodily injury to…any person. …”.  The issue in this case is whether the first of these was satisfied, thereby providing indemnity under the Policy for the Herbison Group’s losses.

(i)        Amos Decision

[32]         The leading case interpreting the phrase “arises out of the ownership, use or operation of a vehicle” is Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (S.C.C.), [1995] 3 S.C.R. 405.  In Amos, the driver of a van was shot and seriously injured by a gang.  He was insured at the time of the incident under a standard automobile insurance policy issued by the respondent, the Insurance Corporation of British Columbia.  The applicable no-fault regulatory benefits scheme in British Columbia provided benefits for injuries caused by an accident that “arises out of the ownership, use or operation of a vehicle”.  When the respondent denied the injured driver’s claim for benefits, the driver sought a declaration that he was entitled to the benefits claimed.

[33]         In Amos, Major J. formulated a two-part test for the determination whether a particular loss “arises out of the ownership, use or operation of a vehicle” (at para. 17):

1. Did the accident result from the ordinary and well-known activities to which automobiles are put?

2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the [tort victim’s] injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

See also Axa Insurance v. Dominion of Canada General Insurance Co., [2004] O.J. No. 4492 (Ont. C.A.).

[34]         The Supreme Court of Canada held in Amos that the first part of this test for liability, the ‘purpose’ component, was clearly satisfied in that case.  In Amos, the injured plaintiff was driving his van away from an intersection when the van was suddenly surrounded by a gang of men.  When the men tried to enter the vehicle at gunpoint, the plaintiff was shot by one of the assailants.  The plaintiff then fled from the scene in his van.  His injuries, therefore, “clearly resulted ‘from the ordinary and well-known activities to which automobiles are put’”: Amos at para. 18.  

[35]         With respect to the second part of the test for liability, the ‘causation’ component, the Supreme Court held that a direct or proximate causal connection between the plaintiff’s injuries and the ownership, use or operation of his vehicle was not required.  To the contrary, the words “arising out of”, as they appeared in the regulation at issue, were to be interpreted broadly, with the result that a motor vehicle need not be the instrument of the plaintiff’s injuries to meet the causal connection requirement for liability.  Injuries that did not arise from the negligent use of a motor vehicle could be covered by the benefits regulation.

(ii)      Interpretive Approach to Section 239(1)

[36]         The Herbison Group argues that the ‘purpose’ component of the Amos test sets a low threshold for the engagement of s. 239(1) of the Act and, hence, of the coverage condition of the Policy, that is easily met on the facts of this case.  It asserts that because s. 239(1) of the Act imposes a statutory requirement for a specific type of coverage in motor vehicle liability insurance policies, both the established jurisprudence and the accepted interpretative principles applicable to insurance contracts dictate that s. 239(1) should enjoy a broad interpretation.  In addition, the Herbison Group submits, it is significant that the regulation considered in Amos had a narrower reach than s. 239(1) of the Act and the coverage condition of the Policy.  In Amos, unlike this case, the relevant language of the regulation did not include the phrase “arising…directly or indirectly from the use or operation” of a motor vehicle.  They contend that inclusion of the words “directly or indirectly” in s. 239(1) of the Act confirms that this section and the corresponding coverage condition in the Policy have a wide ambit.

[37]         I agree that s. 239(1) is to be interpreted liberally because it mandates specific coverage in standard motor vehicle liability insurance policies in Ontario.  I also agree that the use of the phrase “directly or indirectly” in s. 239(1) signals a legislative intention that the scope of the section be generously construed.  See for example, Lefor (Litigation guardian of) v. McClure 2000 CanLII 5735 (ON C.A.), (2000), 49 O.R. (3d) 557 (C.A.) at para. 8.  As this court has held, the use of the words “directly or indirectly” in a statutory coverage provision imports a less stringent causation requirement than that which flows from the use of the word “directly”.  See for example, Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON C.A.), (2002), 60 O.R. (3d) 776 (C.A.).

[38]         This does not mean, however, that any circumstance or activity associated with the use or operation of a motor vehicle will satisfy the Amos test so as to engage s. 239(1) of the Act and the corresponding coverage condition of a motor vehicle liability insurance policy.  To the contrary, the ‘purpose’ component of the Amos test emphasizes only those uses of motor vehicles that are “ordinary and well-known”.  In addition, the ‘causation’ component of the Amos test requires a nexus or causal link between the injury at issue and the use or operation of the motor vehicle.  Both components of the test are in issue here.

(iii)     Significance of Prior Proceedings

[39]         The interpretation of s. 239(1) of the Act was not in issue in the Tort Action.  The focus of that litigation was the alleged negligence of Mr. Wolfe and the cause of Mr. Herbison’s injuries.  However, the issue whether Mr. Herbison’s injuries engaged s. 239(1) of the Act was the central issue on the Coverage Application.  In his reasons in support of the dismissal of the Coverage Application, Power J. stated (at para. 46):

   I agree with counsel for the Applicants that the legislation and the policy must be broadly interpreted.  However, the elastic band stretches only so far.  Here, the band has clearly “snapped”…I am satisfied that the circumstances giving rise to the [Tort Action] cannot, in common sense, and on any rule of wide construction, be considered as arising out of an automobile incident…I agree with the submissions for the Respondent that the two-part Amos test has not been met.  Indeed, in my opinion, the Applicants cannot meet either part of the test.  Similarly, there is no duty to defend under s. 245 of the Act since the accident in question is not one resulting from the ownership, or directly or indirectly from the use or operation of an automobile.

[40]         In its factum filed with this court in response to the Herbison Group’s appeal, Lumbermens essentially argued that the causation and negligence findings in the Tort Action and Power J.’s findings on the Coverage Application concerning s. 239(1) of the Act, are dispositive of the Herbison Group’s appeal, mandating its dismissal.  However, during oral argument, counsel for Lumbermens candidly acknowledged that the findings in those proceedings were not binding on the trial judge in the Recovery Action.

[41]         I agree.  As I have indicated, the proper interpretation of s. 239(1) was not a live issue in the Tort Action.  As well, none of the members of the Herbison Group was a party to the Coverage Application.  Thus, prior to the Recovery Action, the Herbison Group’s claims against Lumbermens under s. 258(1) of the Act had not previously been litigated.  Accordingly, I turn next to the Herbison Group’s attack on the holdings of the trial judge in the Recovery Action.

(iv)      ‘Purpose’ Component of the Amos Test

[42]         The trial judge properly identified the legal principles applicable to the inter-pretation of s. 239(1) of the Act, including the test for liability established in Amos.  He observed that the test is “broad”, and further commented (at para. 15):

Moreover, our Court of Appeal, at para. 8 in Lefor (Litigation guardian of) v. McClure…deduced that the 1990 amendment of the Act to include injuries arising “indirectly” as well as directly, from the use or operation of a motor vehicle, broadened the scope of the section [citation omitted].

[43]         The trial judge also reviewed many of the cases in which Canadian courts have been required to determine whether injuries sustained by a tort victim were occasioned by a common and accepted use of a motor vehicle.  Some of these cases pre-date the decision of the Supreme Court of Canada in Amos.  I agree with the Herbison Group that these cases are of limited persuasive assistance in this case; others, however, including Lefor, supra, directly involve the application of the Amos test.

[44]         The trial judge next considered the application of the ‘purpose’ component of the Amos test to the facts of this case, concluding that Mr. Wolfe’s use of his truck to access the terrain of the farmer’s field enroute to his hunting station was “unrelated to the negligent shooting incident”.  He reasoned as follows (at paras. 18 and 19):

   The plaintiffs claim the accident arose from an ordinary purpose that trucks are commonly put to. That is, four-wheel drive trucks are commonly put to use by game hunters.  While it is true that trucks may in fact be commonly used by game hunters, that fact is not deter-minative.  The question is whether the accident resulted from one of these common uses.  According to the plaintiffs, the main use of a truck in a hunting context is, inter alia, to allow hunters to access difficult terrain.  But the acci-dent did not arise from this use.  The accident resulted from the negligent handling of a hunt-ing rifle – something totally unrelated to this use of the truck.  When the shot was fired and the accident occurred, the truck was not being put to this use.  As an aside, given the law prohibits the usage of headlights to illuminate a hunting target, that use cannot constitute an ordinary use to which vehicles are put.

   This situation can be distinguished from cases in which the Courts have adopted even the broadest interpretation of the “purpose test”.  For instance, in Lefor, supra, the Court made the finding that the use of a car as a means of stopping to pick up and drop off passengers constituted a well-known use of the car.  The Court was then able to tie the use (i.e. con-veying passengers) to the accident [emphasis in original].

[45]         In my view, the trial judge committed no error by concluding that the ‘purpose’ component of the Amos test was not satisfied here.  I say this for several reasons.

[46]         First, although the Herbison Group places considerable reliance on Lefor, arguing that it enjoys many similarities to this case, I do not think that Lefor assists the Herbison Group’s position.  As noted by the trial judge, the facts in Lefor are distinguishable from the facts of this case. 

[47]         In Lefor, the driver of a car intended to leave her two young children at her mother’s house for the evening.  On arrival at her destination, she parked her car on the opposite side of the street from her mother’s house, left the engine of her car running and exited the car with both of her children.  Her daughter, while crossing the street, was struck and injured by an approaching vehicle.  This court held (at para. 8):

Stopping vehicles to pick up and drop off passengers is an ordinary and well-known aspect of the use and operation of an automobile…The accident occurred as a result of the use of Ms. Lefor’s vehicle as a means of conveying passengers from one place to another.  Ms. Lefor’s decision to park her car on the opposite side of the road from her mother’s house and leave it running while she and her children darted across the street placed [her injured daughter] in a situation of danger and triggered the sequence of events that resulted in [the daughter’s] injuries.

[48]         The tort victim in Lefor, the injured child, was a passenger in her mother’s vehicle prior to the accident.  The car was being used for the specific purpose of transporting her, and her brother, and dropping them off at their grandmother’s house.  Their mother intended to travel immediately thereafter, in the car, to a concert.  This use of the car was a customary and accepted use of a motor vehicle.  Moreover, it was directly associated with the tort victim herself and with the injuries that she sustained.  In other words, the very purpose for which the car was used created a situation of danger leading to the child’s injuries and there was a clear nexus between the use of the car and those injuries.  But that is not this case.

[49]         The facts in Amos are also markedly different from the facts of this case.  In Amos, as I have said, the plaintiff was ‘swarmed’ by a gang and shot through the window of his van, while he was driving the van, when one of his assailants attempted to enter the vehicle.  Thereafter, he successfully fled in his van from his attackers.  Major J. observed in Amos at para. 25:

The appellant’s vehicle was not merely the situs of the shooting.  The shooting appears to have been the direct result of the assailants’ failed attempt to gain entry to the appellant’s van.  It is not important whether the shooting was accidental or deliberate while entry to the vehicle was being attempted.  It is important that the shooting was not random but a shooting that arose out of the appellant’s ownership, use and operation of his vehicle.

[50]         Thus, in Amos, at the time of the assault, the plaintiff victim was actively engaged in the use of his vehicle for the commonplace purpose of transportation.  This use of the van, and the plaintiffs’ presence in it, created the situation that led to his injuries.  The van was integral to the assault and to the victim’s escape.  I reiterate Major J.’s words in Amos at para. 25: “The shooting appears to have been the direct result of the assailants’ failed attempt to gain entry to the appellant’s van.”  Accordingly, the shooting was not random but, rather, arose out of the appellant’s ownership, use and operation of his vehicle. 

[51]         In this case, in contrast to the facts in Lefor and Amos, there was no similar relationship between the tort victim and his injuries, on the one hand, and the use of Mr. Wolfe’s truck, on the other hand.  In addition, although the Wolfe truck was originally being used to transport Mr. Wolfe and his wife to their designated hunting station, the truck was not being used for this purpose at the time of the shooting.  Instead, Mr. Wolfe had stopped the truck enroute, to shoot at an unanticipated target before the start of the planned hunting activities and prior to his arrival at the hunting location.  The transpor-tation use of the truck to access the hunting area was thereby suspended. 

[52]         Moreover, the use of the Wolfe truck did not itself expose Mr. Herbison to danger or lead to his injuries.  The situation of danger that resulted in his injuries was created by Mr. Wolfe’s unrelated decisions to leave his vehicle, obtain and load his rifle, and use the rifle to shoot at a distant and poorly visible target.  The accident occurred as the result of these discrete and deliberate decisions – not as a result of the commonplace use of the truck for transportation.

[53]         The Herbison Group submits that the operation of the truck was an integral part of the venture in which the Wolfes were engaged, namely a hunting expedition.  While it is true that the Wolfes were using their truck to access their hunting station, the use of Mr. Wolfe’s rifle was not an integral part of the Wolfes’ use of their truck to travel to their hunting station.  Indeed, the facts suggest precisely the opposite.  The truck was in use to transport the Wolfes to the hunting area.  Its use was not intended to transport them to a spot enroute to their hunting station where Mr. Wolfe might exploit a chance hunting opportunity in advance of the day’s planned hunting activities.  Nor were Mr. Wolfe’s decisions to stop his truck and load and fire his rifle at that intermediate location connected to the use of his truck to transport the Wolfes to their ultimate hunting destination.

[54]         In sum, when Mr. Herbison was shot, the Wolfe vehicle was not being used for a purpose from which the injuries resulted.  On my reading of Amos, the act(s) that caused the injury at issue must be related to the purpose for which the relevant vehicle was being used.  This is a necessary pre-requisite to satisfaction of the ‘purpose’ component of the Amos test.  It is not met on the facts of this case.

[55]         Second, the Herbison Group maintains that the trial judge erred in considering the illegal use of the truck’s headlights to illuminate a hunting target as a factor militating in favour of the conclusion that the ‘purpose’ component of the Amos test was not satisfied.  They do not dispute that this activity, even if unintentional, was illegal.  Instead, they argue that Mr. Wolfe was not using the truck’s headlights for this purpose and, in any event, that the legality of such a use is irrelevant to the issues in this case.

[56]         I would reject this submission.  Mr. Wolfe testified that although he did not intend to use his headlights to illuminate a hunting target, in fact they were used for this purpose.  He said that, but for the illumination from the headlights, he would not have “taken the shot”.  Moreover, on a proper reading of the trial judge’s reasons, I do not believe that it can be said that he grounded his conclusion that the prerequisites for the application of s. 239(1) had not been satisfied on his view of the legality of the use of the headlights.  Although the trial judge twice referred in his reasons to the ‘illegal’ use of the headlights, he also prefaced his introductory observation regarding it with the words “as an aside…”.  His challenged observations concerning the legality of the use of the headlights thus appear to have been parenthetical commentary.

(v)      ‘Causation’ Component of the Amos Test

[57]         The Herbison Group next argues that the trial judge also erred by finding that Mr. Wolfe’s negligent shooting of Mr. Herbison constituted an intervening act that was merely incidental to the use and operation of the truck, with the result that the ‘causation’ component of the Amos test was not met.  They submit that the negligent rifle shot was the direct proximate cause of Mr. Herbison’s injuries, but that the use and operation of the truck were indirect contributory causes of his injuries.

[58]         As I have mentioned, Amos held that the use or operation of a motor vehicle need not be the instrument of a tort victim’s injuries in order to satisfy the ‘causation’ component of the test for liability.  In Amos, Major J. stated (at paras. 24 and 26):

[A] motor vehicle need not be the instrument of the injury to satisfy the causal connection requirement.  Injuries which do not arise from the negligent use of a motor vehicle may be covered….

….

Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage.

Consequently, liability for injury may arise from a tortious act other than the negligent use of a motor vehicle: see also Lefor, at para. 8. 

[59]         In Amos, the Supreme Court held that the injured driver’s injuries, occasioned by the shooting, “originated from, flowed from, or were causally connected with [the] ownership, use and operation [of the driver’s vehicle]” (at para. 27).  As the tort victim in Amos was shot while he was driving his own van, there was a direct connection between the purpose for which the vehicle was being used and the injuries sustained by the victim.  There was no intervening act, independent of the ownership, use and operation of the car, that broke the chain of causation.

[60]         In this case, the Herbison Group points to the following factors as supporting the conclusion that there was an indirect or contributory causal connection between Mr. Wolfe’s ownership, use or operation of his truck and Mr. Herbison’s injuries: (i) the unintentional use by Mr. Wolfe of the truck’s headlights to illuminate his target; (ii) Mr. Wolfe’s evidence that, but for the fact that the headlights were on, he would not have “taken the shot”; and (iii) the use or operation of the truck for transportation was ‘necessary’ because, without it, the Wolfes would have been unable to access their hunting station due to Mr. Wolfe’s poor health.

[61]         The trial judge held that the requisite causal connection between the use or operation of the Wolfes’ truck and Mr. Herbison’s injuries was not demonstrated.  With respect to the use of the headlights, he stated (at para. 24):

Even if it was accepted that Wolfe would not have fired his gun but for the illumination of the headlights (which amounts to activity proscribed by the law), the illumination still amounts to an ancillary act in Wolfe’s negligent misfiring.  Wolfe’s negligence was in firing a shot toward a target that he could not see.  The operation of the headlights in no way contributed to that negligent act [emphasis added].

[62]         I agree.  Mr. Wolfe’s negligent shooting of Mr. Herbison was an act independent of the ownership, use or operation of the Wolfe truck and the ownership, use or operation of the truck was merely incidental to the injuries sustained by Mr. Herbison.  In my opinion, there was no nexus or causal connection, direct or indirect, between these injuries and the ownership, use or operation of the pick-up truck.  I reach these conclusions for the following reasons.

[63]         First, the trial judge’s finding that the use or operation of the truck did not cause or contribute to Mr. Herbison’s injuries was a finding open to him on the evidence.  The core nexus asserted by the Herbison Group is the use of the headlights on Mr. Wolfe’s truck, without which Mr. Wolfe said he would not have “taken the shot”.  Mr. Wolfe testified that the headlights were being used to light the Wolfes’ passage across the farmer’s field while it was still dark outside.  According to Mr. Wolfe, the actual illumination of Mr. Herbison and his relative by the headlights was unintended.  On Mr. Wolfe’s own evidence, therefore, the illumination of Mr. Herbison and his relative by the headlights was unrelated and incidental to the real purpose of the use of the headlights and to the use of the truck for the transportation of the Wolfes to their hunting site. 

[64]         Second, the shooting took place after Mr. Wolfe had stopped and exited from his vehicle, and when the vehicle was no longer in use to transport the Wolfes to their hunting site.  The trial judge held, as asserted by Lumbermens, that the accident resulted from the negligent handling of the hunting rifle and not from the use of the truck to cross the farmer’s field. 

[65]         I agree.  On Mr. Wolfe’s evidence in the Recovery Action, his truck was stationary at the time of the shooting accident.  Although its motor was running and its headlights were on, it was not then being used or operated to transport the Wolfes.  The hunting accident occurred as a result of Mr. Wolfe’s decisions to disembark from his vehicle, open his rifle case and remove his rifle, open the breech of the rifle, load the gun, look through the scope of the rifle and fire. 

[66]         Although these actions were carried out quickly, they embodied a series of deliberate acts that individually and collectively were unrelated to the ownership, use or operation of the truck.  They were carried out after the use of the truck for transportation was suspended.  At any point during this series of decisions, Mr. Wolfe was free to reconsider and retreat from the firing of his rifle.  Ultimately, it was the firing of the weapon that caused Mr. Herbison’s injuries.  This independent causal event broke the chain of causation between the use or operation of the truck and the infliction of the injuries.

[67]         Third, I do not agree that any time a vehicle is used as a ‘necessary means of transportation’ (as in this case, because Mr. Wolfe was unable to walk to the hunting site), liability under the Amos test will automatically result for any loss occasioned by the insured driver of the vehicle enroute to or at the intended travel destination.  In my view, Amos does not dictate this result.

[68]         To the contrary, the ‘causation’ component of the Amos test requires that the ownership, use or operation of the relevant motor vehicle contribute to or add to the injury, in some manner.  By definition, therefore, the ‘causation’ component of the Amos test mandates a connection between the ownership, use or operation of the vehicle and the injury actually sustained.

[69]         Amos holds that while the required nexus or causal relationship between a tort victim’s injuries and the ownership, use or operation of the involved motor vehicle need not be “direct or proximate”, the nexus or causal relationship must be established to support coverage: Amos at para. 17.  This means that even under the wide causation principle embodied in s. 239(1) of the Act – established by the use in that section of the phrase “direct or indirect”, rather than the word “direct” – a causation requirement continues to apply.  Although the requisite connection between the injuries sustained and the ownership, use or operation of the vehicle may be “direct or indirect”, demonstration of a real connection, which is more than merely incidental or fortuitous, is still necessary.  I am not persuaded that such a causal connection or relationship existed here.

[70]         Fourth, I also do not accept that the ‘but for’ test of causation is conclusive of legal causation in this case.  This argument is premised on the assertion that ‘but for’ Mr. Wolfe using his truck, Mr. Herbison would not have been injured.

[71]         The decision of this court in Chisholm is instructive in this regard.  In that case, the plaintiff was severely injured when an unknown assailant fired gunshots at his car.  His insurer refused to pay statutory accident benefits on the basis that the plaintiff was not in an “accident” as defined under the statutory accident benefits schedule then in force in Ontario, which defined “accident” as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage…” [emphasis added].  This court held at paras. 11 and 20, that the Legislature’s use of the word “directly” in the relevant schedule, in contrast to the phrase “directly or indirectly” as contained in a predecessor version of the schedule, established a narrow and stringent causation requirement that displaced the ‘causation’ component of the Amos test for the purpose of interpreting the definition of “accident” under the schedule.

[72]         However, in dismissing the plaintiff’s appeal from the denial of his benefits claim, Laskin J.A. commented at para. 29:

[E]ven accepting that the use of Chisholm’s car was a cause of his impairment, a later intervening act occurred.  He was shot.  An intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car – if it is “part of the ordinary course of things”.  See J.G. Fleming, The Law of Torts, 9th ed. (North Ryde, NSW: LBC Information Services, 1988) at p. 247.  Gun shots from an unknown assailant can hardly be considered an intervening act in the “ordinary course of things” [emphasis added]. 

[73]         These comments are apposite here.  I recognize that Chisholm was concerned with a narrower construct of causation than that which governs in this case.  Nonetheless, the rifle shot fired by Mr. Wolfe was the only cause of Mr. Herbison’s injuries, not the use or operation of Mr. Wolfe’s truck.  The rifle shot was unrelated to the use or operation of the Wolfe vehicle and, in Laskin J.A.’s words in Chisholm at para. 29, “can hardly be considered an intervening act in the ‘ordinary course of things’”.  The rifle shot, which caused Mr. Herbison’s injuries, constituted an intervening act, independent of the use or operation of Mr. Wolfe’s truck, that broke the chain of causation.  As in Chisholm, the use or operation of the Wolfe truck, at best, was ancillary to the infliction of injuries upon Mr. Herbison.

[74]         Finally, the Herbison Group asserts that the trial judge erred in his analysis of s. 239(1) of the Act by relying on Hanlon v. Guarantee Co. of North America, [1995] O.I.C.D. No. 172, aff’d [1997] O.I.C.D. No. 43 (Ont. Ins. Comm.) and Chisholm.  I disagree.

[75]         Both Hanlon and Chisholm, like Amos itself, concerned entitlement to medical or other accident benefits under provincial statutory or regulatory benefits schemes.  In Hanlon, the applicable statutory accident benefits schedule in force in Ontario at the relevant time defined the word “accident”, which was determinative of benefits entitlement, as meaning an incident in which “the use or operation of an automobile causes directly or indirectly, …injury …” [emphasis added].  In contrast, as I have previously said, the definition of “accident” in the no-fault benefits schedule at issue in Chisholm contained no reference to “indirectly” caused injuries, but preserved a direct causation requirement.  Both cases were concerned with statutory accident benefits, in contrast to s. 239(1) of the Act.

[76]         The trial judge’s consideration of these cases was not misplaced.  In both cases, the Amos test was considered and, where appropriate, the language of the benefits regulation at issue in Amos was contrasted with the statutory language under review in Hanlon and Chisholm.  These cases simply formed part of the larger jurisprudential backdrop to the trial judge’s analysis of s. 239(1).  The trial judge’s reasons indicate, as I have mentioned, that he considered numerous cases, dating both before and after the decision in Amos – including Hanlon and Chisholm – in order to arrive at a proper construction of s. 239(1).  He cannot be faulted for so doing.

(vi)      Conclusion

[77]         In my view, the trial judge was correct to conclude that the Herbison Group’s claims in the Recovery Action failed on both branches of the Amos test.  Although the use or operation of a truck for transportation to a desired destination, including a hunting site, is a commonplace and well-known activity for a truck, Mr. Wolfe’s use or operation of his pick-up truck was not connected to his negligent use of his rifle.  Nor did the use or operation of the pick-up truck occasion or contribute to Mr. Herbison’s injuries. 

[78]         Rather, Mr. Herbison’s injuries occurred because of Mr. Wolfe’s independent decisions to stop his truck, disembark from it, obtain and load his rifle, move away from the vehicle and discharge the weapon under poor visibility conditions.  The use of the truck to transport the Wolfes to their hunting station was interrupted, and suspended, by this series of separate intervening and deliberate acts, which culminated in the firing by Mr. Wolfe of his hunting rifle when he could not properly identify his target as a result of both distance and darkness.  In these circumstances, Mr. Wolfe’s use or operation of his truck was merely incidental or ancillary to his unrelated negligent discharge of his weapon.  As well, his wife’s continued use of the truck, as a passenger, had no connection to Mr. Wolfe’s handling and firing of his rifle. 

[79]         No doubt other hypothetical fact situations could be posited, leading to different conclusions regarding liability under s. 239(1) of the Act.  But, as stated by Major J. in Amos at para. 28, “Invariably, each case must be decided on its own facts, applying the two-part [liability test enunciated in Amos].  It is not possible to predict every circumstance where an injury can be said to arise out of the ownership, use or operation of a vehicle.”  To the same effect was Laskin J.A.’s observation in Chisholm at para. 37, that little is to be gained by considering other hypothetical fact situations: “They are best left to be decided when they arise in an actual case.”  I agree.

[80]         Accordingly, for the reasons given, I would dismiss the Herbison Group’s appeal from the dismissal of the Recovery Action.

(2)      Trial Judge’s Costs Disposition

                        in the Recovery Action

[81]         The trial judge concluded that no costs should be awarded to Lumbermens in the Recovery Action, notwithstanding its success at trial.  In his reasons dated September 16, 2003 in support of this costs disposition, the trial judge said:

[I]t would have been difficult for the Plaintiffs to determine whether the shooting in question arose directly or indirectly from the use or operation of an automobile as set out in s. 239(1) of the [Act].

   I also find that the several cases quoted to me during argument at the trial, referred to in my Judgment did not help in determining the meaning of the section question[ed] in the context of this case.

   I find that the Plaintiff [sic] had no alternative but to proceed to Court in order to obtain a determination of the issue based on the facts of his [sic] case and they should not be punished by way of paying costs in these circumstances.

[82]         Judicial review of a trial judge’s costs disposition is narrowly constrained.  Such a disposition is entitled to considerable deference from this court and can be set aside on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 (CanLII), [2004] 1 S.C.R. 303 at para. 27.

[83]         I see no such error in principle here.  Nor am I persuaded that the trial judge’s costs disposition is plainly wrong.  A successful party litigant, although generally the recipient of a costs award, enjoys no legal right to such an award.  The decision whether to award costs, and the quantum of any costs to be awarded, are matters within the discretion of the trial judge, who may determine by whom and to what extent costs shall be paid: see s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[84]         The trial judge’s reasons indicate that he recognized that the issue whether s. 239(1) of the Act is engaged is a highly fact-driven determination.  In this case, he concluded that judicial consideration of the issue was properly required to ascertain whether Mr. Herbison’s injuries triggered the coverage under the Policy mandated by s. 239(1) of the Act.  It is telling in this regard, as I have mentioned, that none of the Herbison Group was served with or made a party to the Coverage Application, although this option was open to Lumbermens.  Thus, the Herbison Group’s interest in the coverage issue, and the basis for its claims against Lumbermens, were not previously litigated or determined in a manner binding on the Herbison Group.  Nor, on this record, did the established case law clearly dictate the outcome of the Recovery Action.

[85]         In these circumstances, there is no basis upon which to interfere with the trial judge’s costs disposition.  Accordingly, although I would grant leave to Lumbermens to cross-appeal from the trial judge’s costs disposition in the Recovery Action, I would dismiss the cross-appeal.

(3)      Dismissal of Summary Judgment Motion

[86]         The Summary Judgment Motion was brought by Lumbermens shortly before the scheduled commencement of the trial of the Recovery Action.  On that motion, the main relief sought by Lumbermens was summary judgment, on the basis of res judicata and issue estoppel.  Lumbermens sought to invoke these principles in reliance on the findings in the Tort Action and on the earlier Coverage Application involving the Wolfes.  After the dismissal of the Summary Judgment Motion, however, the Recovery Action proceeded to trial and the matters in issue between Lumbermens and the Herbison Group were litigated for the first time. 

[87]         Thus, the trial of the Recovery Action overtook the issues raised by Lumbermens on its Summary Judgment Motion.  Simply put, both Lumbermens and the Herbison Group have had their days in court and the issues sought to be raised by Lumbermens on its appeal from the dismissal of its Summary Judgment Motion are now superfluous for all practical purposes

[88]         Lumbermens argued that the issues raised by it were not moot if the Herbison Group succeeded in this court on the main appeal.  It asserted that the effect of the dismissal of the Summary Judgment Motion was to preclude it from advancing the issues of res judicata and issue estoppel as substantive defences at the trial of the Recovery Action.  Although Lumbermens appears to have sought an adjournment of the Recovery Action to pursue its appeal from the dismissal of the Summary Judgment Motion, it did not appeal the trial judge’s denial of its adjournment request.  Nor, on the record before us, did it seek an expedited hearing date for the argument of its appeal having regard to the then pending commencement date for the trial of the Recovery Action.  In any event, as counsel for Lumbermens essentially acknowledged during oral argument, the dismissal of the main appeal by the Herbison Group renders the issues raised by Lumbermens on its appeal moot.

V.        Disposition

[89]         For the reasons given, I would dismiss the Herbison Group’s appeal against the dismissal of the Recovery Action.  I would grant leave to Lumbermens to cross-appeal from the trial judge’s costs disposition in the Recovery Action and dismiss the cross-appeal.  Lumbermens’ appeal against the dismissal of the Summary Judgment Motion is dismissed.  As success has been divided, I would award no costs of these proceedings.

 

“E. A. Cronk J.A.”


BORINS J.A.:

I

[90]         I have read the reasons for judgment of my colleague Cronk J.A. and find that I am unable to agree with her disposition of Mr. Herbison’s appeal.[2]  Applying the principles in Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (S.C.C.), [1995] 3 S.C.R. 405, I am of the view that the evidence satisfies the “purpose” test and the “causation” test articulated by Major J. in Amos and that the trial judge erred in not so finding.  Accordingly, I am satisfied that Mr. Herbison’s damages arose directly or indirectly from Mr. Wolfe’s use or operation of his pick‑up truck within the meaning of s. 239(1) of the Insurance Act, R.S.O. 1990, c. I.8.  Using the language of Amos, on the evidence there was “some nexus or causal relationship  (not necessarily a direct or proximate causal relationship)” between Mr. Herbison’s damages and Mr. Wolfe’s “use or operation of his vehicle” that was not “merely incidental or fortuitous”.  Therefore, I would allow Mr. Herbison’s appeal.[3]

[91]         Cronk J.A. has accurately described the facts that gave rise to Mr. Herbison’s unsuccessful attempt to have Mr. Wolfe’s automobile insurer, Lumbermens Mutual Casualty Company, pay the amount of the judgment that he was awarded against Mr. Wolfe for damages that he sustained when shot by Mr. Wolfe, who negligently mistook him for a deer.  However, to put my reasons in context, I find it helpful to set out a brief outline of what occurred.

[92]         Mr. Herbison, Mr. Wolfe, and their friends had arranged to meet at a particular location to participate in a deer hunt.  Although the other hunters hiked through the woods to the deer‑hunting stand, because of disabilities Mr. Wolfe could not do so.  The only way that he could reach the hunting stand was to drive to it in his pick‑up truck.  It was about 6:00 a.m. and as it was dark, the truck’s headlights were operating.  While driving to the stand Mr. Wolfe, who had seen a white‑tail deer in the area of the site the previous day, thought he saw a deer.  He stopped the truck, leaving the motor running, its headlights on, exited it and he removed his rifle from the truck.  As the truck’s headlights illuminated the field and as he looked through the scope of his gun, Mr. Wolfe saw a flash of white that he thought was a deer’s tail.  He fired his rifle at the flash of white believing that he was firing at a white‑tail deer.  Regrettably, he shot Mr. Herbison who had already reached the deer‑hunting stand.  Mr. Wolfe testified that he would not have fired at what he believed to be a deer had it not been for the truck’s headlights illuminating the object.

[93]         In his negligence action against Mr. Wolfe, Mr. Herbison was awarded damages of $832,272.85 together with post‑judgment interest and costs.  Because Mr. Wolfe was unable to pay the judgment and his insurer refused to do so, Mr. Herbison commenced an action against Mr. Wolfe’s automobile insurer seeking indemnity under s. 258(1) of the Insurance Act on the ground that his damages arose directly or indirectly from Mr. Wolfe’s use or operation of his pick‑up truck within the meaning of s. 239(1) of the Act.  Mr. Herbison has appealed from the dismissal of his action.

II

[94]         I begin by reproducing s. 239(1) of the Insurance Act, to be followed by a number of passages from the reasons for judgment of Major J. in Amos.

[95]         Section 239(1), as it read at the relevant time, states:

239(1) Subject to section 240, every contract evidenced by an owner’s policy insures the person named therein and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract against liability imposed by law upon the insured named in the contract or that other person for loss or damage,

(a) arising from the ownership or directly or indirectly from the use or operation of any such automobile; and

(b) resulting from bodily injury to or the death of any person and damage to property.

[96]         In Amos the court was required to interpret a regulation passed pursuant to British Columbia motor vehicle insurance legislation containing language similar to s. 239(1) of the Insurance Act.  The provision reads as follows:

79(1)  Subject to subsection (2) and sections 80 to 88, 90, 92, 100, 101 and 104, the [insurer] corporation shall pay benefits to an insured in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle and that occurs in Canada or the United States of America or on a vessel travelling between Canada and the United States of America…. [emphasis added].

Section 79(1) entitles insured motorists to no‑fault death and disability benefits under the administration of the Insurance Corporation of British Columbia, a public insurer.

[97]         Following an extensive review of the case law, in paras. 16 and 17, Major J. articulated the two‑part test that now applies to the interpretation of insurance coverage language similar to s. 79(1) of the British Columbia regulation and s. 239(1) of the Ontario legislation:

The no-fault character of the benefits in question does not change the interpretation of s. 79(1). No-fault means that the respondent's liability to pay benefits occurs when injury arises out of the ownership, use or operation of a vehicle, regardless of the presence or absence of fault. The injury must still arise out of the ownership, use or operation.  However, this does not mean that a narrow, technical interpretation is dictated. Traditionally, the provisions providing coverage in private policies of insurance have been interpreted broadly in favour of the insured, and exclusions interpreted strictly and narrowly against the insurer (Brown and Menezes, at p. 131). In Indemnity Insurance Co. v. Excel Cleaning Service, [1954] S.C.R. 169, it was held that the construction given to a policy of insurance must not nullify the purpose for which the insurance was sold.

In the same way, while s. 79(1) must not be stretched beyond its plain and ordinary meaning, it ought not to be given a technical construction that defeats the object and insuring intent of the legislation providing coverage.  The two-part test to be applied to interpreting this section is:

1.   Did the accident result from the ordinary and well-known activities to which automobiles are put?

2.   Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant’s injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

This two-part test summarizes the case law interpreting the phrase “arising out of the ownership, use or operation of a vehicle”, and encompasses both the “purpose” and “causation” tests posited in the jurisprudence [emphasis added].

[98]         In Amos, the insured was attacked by a gang and was seriously injured when shot while distancing his van from the assailants.  The issue was whether the injury was within the scope of s. 79.  In his analysis, Major J. necessarily focused on the causation branch of the test.  At para. 21, he stated:

The question is whether the requisite nexus or causal link exists between the shooting and the appellant's ownership, use or operation of the van.  With respect to causation, it is clear that a direct or proximate causal connection is not required between the injuries suffered and the ownership, use or operation of a vehicle. The phrase “arising out of” is broader than “caused by”, and must be interpreted in a more liberal manner.  A formulation of the causation principle is found in Kangas v. Aetna Casualty & Surety Co., 235 N.W. 2d 42 (1975), where the Michigan Court of Appeals stated at p. 50:

. . . we conclude that while the automobile need not be the proximate cause of the injury, there still must be a casual connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be forseeably identifiable with the normal use, maintenance and ownership of the vehicle.

That court recognized that the words “arising out of” have been viewed as words of much broader significance than “caused by”, and have been said to mean “originating from”, “having its origin in”, “growing out of” or “flowing from”, or, in short, “incident to” or “having connection with” the use of the automobile [emphasis added].

[99]         At paras. 23 and 24, Major J. continued:

Dickinson v. Motor Vehicle Insurance Trust, [1987] 61 A.L.J.R. 553, a decision of the High Court of Australia, describes a causal connection test which does not require a direct or proximate relationship between the use of the vehicle and the injuries suffered.  The court stated at p. 555:

Whether or not the appellant’s injuries were actually caused by the use of the motor car, it is sufficient to say that they arose out of such use. The test posited by the words “arising out of” is wider than that posited by the words “caused by” and the former, although it involves some causal or consequential relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the vehicle. . . .

That court reasoned that under the “wide formula”, as expressed by the wording “arising out of”, it is the injury which must be caused by or arise out of the use of the motor vehicle. Negligence or fault in the use or operation of a motor vehicle does not need to be the cause of the injury. The liability for the injury may arise from a tortious act other than the negligent use of a motor vehicle. This is an important distinction.

This appeal does not present the typical motor vehicle accident.  A bullet, rather than a motor vehicle, was the cause of the injury.  However, a motor vehicle need not be the instrument of the injury to satisfy the causal connection requirement.  Injuries which do not arise from the negligent use of a motor vehicle may be covered by s. 79(1) [emphasis added].

[100]      At para. 26, Major J. stated: “Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage.”  He concluded at para. 28:

Invariably, each case must be decided on its own facts, applying the two-part test outlined above. It is not possible to predict every circumstance where an injury can be said to arise out of the ownership, use or operation of a vehicle. A true random shooting not related to the use or operation of a vehicle under the present wording of s. 79(1) is not covered but where a nexus or connection between the injuries and the vehicle exists, the injured plaintiff is entitled to coverage. The words in s. 79(1) chosen by the legislature are broad and should be interpreted to give meaning to the legislative intention that extends coverage where some connection is found between ownership, use or operation of a vehicle and the injuries sustained as a result of an accident [emphasis added].

III

[101]      There is little doubt that Amos is now the leading Canadian authority concerning when damages “arise out of the ownership, use or operation of a vehicle”.  A recent Quicklaw search discloses that Amos has been judicially considered in more than 120 cases.  The two‑part test proposed by Major J. is the contemporary articulation of the purpose test established in Reliance Petrolium Ltd. v. Stevenson, [1956] S.C.R. 936 and the causation test established in Law, Union & Rock Insurance Co. v. Moore’s Taxi Ltd., [1960] S.C.R. 80.  In a survey article, D.M. Shoemaker, “Arising Out of the Ownership, Use or Operation”: Tracing the Development and Questioning the Trend of Canadian Automobile Insurance Coverage (1997), 76 Can. B. Rev. 428 at 429, the author comments: “Although it was a logical progression in the broad and liberal interpretation of the phrase ‘arising out of the ownership, use or operation’, the Amos decision expanded Canadian automobile insurance coverage to a new breadth.”  At pp. 429‑430 the author adds that in tracing the development of the phrase “[i]t will be evident that the courts have interpreted it broadly and continuously increased the extent of coverage from one subsequent case to another”, noting at p. 431 that “[w]ith very few exceptions, the decisions have come down on the side of expanded coverage”.

[102]      As I read the cases interpreting “arising out of the ownership, use or operation” of an automobile, particularly those where the coverage language is broadened by the addition of “arising directly or indirectly”, they do not advocate a micro, moment‑by‑moment analysis of the use or operation of the automobile leading up to the accident, nor of the activities of the driver.  Rather, the cases look at the larger picture and ask whether the damages arose from a recognized activity to which a vehicle might be put.  I agree with the conclusion of Mr. Shoemaker at p. 447 of his article:

Since the founding cases of Reliance Petroleum and Law, Union & Rock, both the “purpose test” and the “chain of causation test” have undergone incremental yet considerable change.  Courts have consistently widened the breath of activities and simultaneously relaxed the required causal connection in determining whether an accident falls within the coverage provisions of the respective provincial insurance acts.

No previous case reflects the extent of these changes more than Amos v. Insurance Corp. of British Columbia.  On the one hand, Amos and its predecessors demonstrate how trivial the purpose test has become.  Now, as long as it can be said that the accident arose from an activity to which vehicles are occasionally or might be put, the “purpose test” is satisfied.  At the same time, as long as the accident occurred during the activity in question without a completely new and independent intervening cause, the chain of causation remains intact.  This leads inextricably to the conclusion that the two‑part test, as formulated after Reliance Petroleum and Law, Union & Rock, has become obsolete and passť.  Now, given the recent trends and developments of the common law, a court need only ask:

Did the accident occur in the course of activities to which a vehicle might be put?

The inclusion is interpreted broadly and the threshold is particularly low [emphasis in original].

As I will illustrate, the phrase “directly or indirectly” in s. 239(1)(b) of the Insurance Act has effectively removed the requirement of an unbroken chain of causation from the causation test, as recognized by this court in Lefor (Litigation Guardian of) v. McClure 2000 CanLII 5735 (ON C.A.), (2000), 49 O.R. (3d) 557 (C.A.).

IV

[103]      In para. 14 of his reasons, Major J. reviewed the legislative history of s. 79 of the regulation from 1973 to 1985.  He pointed out that the 1985 amendment, which added “ownership” and “use” to the former wording “arise from the operation of a vehicle”, showed a legislative intent to establish broader coverage.  He interpreted the changes as reflecting a deliberate purpose to relax the causal requirement, and thus provide coverage where the vehicle activity was not the actual cause of the accident.

[104]      In my view, an examination of the legislative history of s. 239(1) of the Insurance Act also reflects a deliberate legislative intent or purpose to broaden the scope of coverage.  The phrase “directly or indirectly” in s. 239(1) of the 1990 Act was added to it in 1990 by S.O. 1990, c. 2.  Its predecessor, s. 209(1)(a) of the Insurance Act, R.S.O. 1980, c. 218 read “arising from the ownership, use or operation of any such automobile”.  As this court has recognized, the 1990 amendment providing coverage for damages arising directly or indirectly from the use or operation of an automobile has significantly broadened coverage: Lefor, supra, at para. 8, per Sharpe J.A.

[105]      Underlying the purpose test is the principle that an insurer should not be required to respond to damages resulting from the abnormal use of an automobile.  Generally speaking, automobile insurance provides coverage for damages arising out of those activities typically related to the purpose of an automobile.  Underlying the causation test is the need to limit coverage to those accidents that are linked to the activity in question.  The degree of linkage necessary to bring a particular accident within the scope of coverage will depend on the statutory language stipulating the scope of coverage.  Had the legislature intended s. 239(1) to operate narrowly, it would not have used ‘indirectly”, and instead of using “arising from” it would have used narrower language, such as “caused by”.  Even though Amos was concerned with coverage less broad in its scope than s. 239(1), at para. 26 Major J. observed in concluding his reasons: “Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage [emphasis added].”  In my view, this conforms with the two‑part interpretive rule articulated by Major J. as it underscores the compensation objective of automobile insurance law and the principle that the court ought to avoid a narrow or technical construction to defeat the intent of providing insurance coverage.

[106]      In my view, Sharpe J.A. considered, and properly applied, the interpretative rules discussed by Major J. in paras. 6, 7 and 8 of his reasons in Lefor.  Although Lefor is distinguishable from this case on its facts, most cases can be distinguished on their facts.  Generally speaking, I do not think that the purpose and causation analysis should begin with attempts to match the facts of one case against those of another for the purpose of arriving at a dispositive conclusion.  The analysis should begin with a consideration of whether the facts as found are subsumed under the governing legislation and under the governing principle stated by the Supreme Court of Canada: cf., R. v. Pilon 1998 CanLII 4717 (ON C.A.), (1998), 131 C.C.C. (3d) 236 (Ont. C.A.) at para. 17, per Morden A.C.J.O. 

[107]      I find Sharpe J.A.’s analysis in para. 8 helpful and persuasive, and worth reproducing in its entirety:

I agree with the submission of the respondents that the amendment to the wording of the standard form motor vehicle liability insurance policy 1990 to provide coverage with respect to injuries arising “indirectly” as well as directly from the use or operation of a motor vehicle, strengthens their case.  In view of that broad language and in view of the principles enunciated by the Supreme Court in Amos, supra, it is my view that the motions court judge correctly concluded that the accident arose from the ownership or directly or indirectly from the use or operation of Karen Lefor’s motor vehicle.  Netasha was being dropped off at her grandmother’s house by her mother who was immediately proceeding in the automobile to a concert.  Stopping vehicles to pick up and drop off passengers is an ordinary and well-known aspect of the use and operation of an automobile.  There is a clear nexus, within the meaning articulated in the Amos case, between the use and operation of Karen Lefor’s vehicle and Netasha’s injuries.  The automobile was stopped temporarily, its motor still running, to drop off Netasha.  The accident occurred as a result of the use of Ms. Lefor’s vehicle as a means of conveying passengers from one place to another.  Ms. Lefor’s decision to park her car on the opposite side of the road from her mother’s house and leave it running while she and her children darted across the street placed Netasha in a situation of danger and triggered the sequence of events that resulted in Netasha’s injuries.  The alleged negligence of Karen Lefor after she left her vehicle does not preclude coverage as, on the authority of Amos, supra, the motor vehicle need not be the instrument of the injury, and injuries which do not arise from the negligent use of a motor vehicle may be covered: See Incerto v. Landry,  (reflex-logo) reflex, (2000), 47 O.R. (3d) 622 (S.C.J.) at p. 626, per Lax J.: “The liability for the injury may arise from a tortious act other than the negligent use of a motor vehicle… [W]here the use or operation of a motor vehicle in some manner contributes to the injury, there is an entitlement to coverage” [emphasis added].

[108]      I also find Lederman J.’s analysis of similar wording in s. 1 of the Statutory Benefits Schedule‑Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93 in Saharkiz v. Underwriters, Members of Lloyd’s, London, England  (reflex-logo) reflex, (1999), 46 O.R. (3d) 154 (Gen. Div.); aff’d 2000 CanLII 5719 (ON C.A.), (2000) 49 O.R. (3d) 255 (C.A.) helpful in interpreting the phrase “directly or indirectly”.  In this case, the plaintiff, a taxi driver, was seriously injured when he was assaulted by two passengers in a dispute over a fare.  The issue was whether the injury was caused directly or indirectly by the use or operation of an automobile.

[109]      In holding that it was, Lederman J. stated at paras. 14 and 21:

The clause that was the subject matter of Amos, supra, contained the phrase, “arises out of”.  It differs from s. 1 of Ontario’s SABS, which contains the words, “directly or indirectly…the use or operation of an automobile causes…”.  In analyzing the purpose and causation requirements of the Amos test as they apply to the fact situation in the case at bar, one must pay special attention to the meaning and appropriate scope of the phrase, “directly or indirectly”.  The word “indirectly” clearly imports into s. 1 of Ontario’s SABS, as it then existed, a relaxed causation requirement comparable to the one suggested by Major J. in Amos, supra.  One arbitrator for the Ontario Insurance Commission has even stated that this latter phrase is actually broader in meaning than standard insurance‑policy phrases such as “arising from” or “arising out of” (see Vineski v. Federation Insurance Co. of Canada, [1995] O.I.C.D. No. 133 at p. 5 (Q.L.), affirmed [1996] O.I.C.D. No. 170; judicial review application dismissed, [1997] O.J. No. 4304 (Div. Ct.), leave to appeal refused [1998] O.J. No. 339 (C.A.)).  Ultimately, whether one phrase is broader or slightly more restrictive than the other, the difference is minimal.  Certainly, the phrase in Ontario’s SABS is comparable or close in meaning to the liberal definition pronounced by Major J.

. . . . .

The explicit use of the word “indirectly” in Ontario’s regulation allows for a broader understanding of indirect causation than is permitted under the concept of proximate cause.  Even if the plaintiff’s use and operation of his taxi-cab is not the direct or proximate cause of the injuries he has sustained, its use and operation may reasonably be construed as the remote or indirect cause of his injuries.  This is so because of the role of the taxi‑cab and its special use as an automobile in this entire scenario [emphasis added].

[110]      In affirming the decision of Lederman J., this court said at paras. 5‑7:

The motions judge, relying on the liberal approach pronounced by Major J. in Amos v. Insurance Corporation of British Columbia, 1995 CanLII 66 (S.C.C.), [1995] 3 S.C.R. 405, 127 D.L.R. (4th) 618, applied the "purpose test" and the "causation test" to the facts before him.  In Vijeyekumar v. State Farm Mutual Automobile Insurance Co. 1999 CanLII 1640 (ON C.A.), (1999), 44 O.R. (3d) 545, 175 D.L.R. (4th) 154 (C.A.), this court confirmed that the provision considered in Amos was sufficiently similar to the definition of "accident" in s. 1 of the SABS that the Amos test may be applied to this definition.

The motions judge was therefore correct in applying the Amos test to the facts of this case.  He found that the assault was the end product of the commercial relationship that had been created when the ride in the taxi cab had started.  He also found that an unbroken line of causation existed, beginning with the ride in the taxi cab and ending with the assault.

He thus concluded that the injuries sustained by the respondent were caused, at least indirectly, by the use and operation of the taxi cab [emphasis added].

[111]      Helpful, as well, in interpreting and applying s. 239(1) of the Insurance Act is Vijeyekumar v. State Farm Mutual Automobile Insurance Company 1999 CanLII 1640 (ON C.A.), (1999), 44 O.R. (3d) 545 (C.A.).  See, also, Lim v. Insurance Corp. of British Columbia, [2001] B.C.J. No. 2447 (C.A.); Bedard v. Cooper, [1999] A.J. No. 1082 (C.A.); Axa Insurance v. Dominion of Canada General Insurance Co. 2004 CanLII 34995 (ON C.A.), (2004), 73 O.R. (3d) 391 (C.A.) at para. 18.

V

[112]      I come now to apply the interpretative rule in Amos to s. 239(1) and to the facts of this case.  In doing so, just as Major J. declined to give s. 79(1) a technical construction that defeats the object and insuring intent of the legislation providing coverage, I will not apply s. 239(1) in a way that defeats its object.  As I will explain, Mr. Herbison has satisfied both the purpose test and the causation test with the result that under s. 258(1) the respondent is required to indemnify him in the amount of the judgment that he obtained against Mr. Wolfe.

[113]      Dealing first with the purpose test, on the day of the accident Mr. Wolfe was to meet his friends at their predetermined deer‑hunting stand at about 6:00 a.m.  Because he was handicapped, he could not walk to the stand; he required transportation to reach it.  For this purpose he used his pick‑up truck.  Thus, he both used and operated the truck for transportation to the deer‑hunting site.  There can be no doubt, using the language of Amos, that this was an “ordinary and well‑known” activity to which vehicles are put.  Indeed, it can be said Mr. Wolfe’s truck took on a special purpose as its use was the only way that he could travel to the site to join the deer hunting party.  Mr. Wolfe’s purpose in using and operating his truck to transport him to the site never changed.  In summary, the use and operation of a pick‑up truck to gain access by a disabled person to difficult terrain and to transport that person, who was a deer hunter, and his hunting equipment to his hunting stand and the use of the truck’s headlights to illuminate the darkness are well‑known uses of pick‑up trucks, and its operation was an integral part of the venture in which the person was engaged.  It follows, on the evidence, that the purpose test was satisfied.[4]

[114]      As for the causation test, although it is clear that Mr. Herbison’s damages were caused by Mr. Wolfe’s negligence in shooting him, it is significant that s. 239(1) of the Insurance Act does not speak in terms of cause and result.  Rather it speaks of damages arising directly or indirectly from the use or operation of a vehicle.  As causation is not an element of s. 239(1), all that is required is that the damages arise directly or indirectly out of, or originate from, the use or operation of a vehicle.  Although this language requires some form of causal connection between the use or operation of the vehicle and the damages, as Major J. points out in Amos all that is necessary to satisfy the causation test is “some nexus or causal relationship” between the damages and the use or operation of the vehicle beyond “merely incidental or fortuitous” use.  As I have stated, elsewhere in his reasons Major J. said that a plaintiff is entitled to recover “where the use or operation of a motor vehicle in some manner contributes to or adds to the injury” [emphasis added].

[115]      The issue, therefore, is whether there is a sufficient connection between Mr. Herbison’s damages and Mr. Wolfe’s use or operation of his pick‑up truck to satisfy the causation test.  In resolving this issue, the causation analysis takes place in the context of a legislative intention to provide broad motor vehicle liability coverage for damages related to the use or operation of a vehicle.  It is unnecessary that the damages arise directly from the use or operation of a vehicle to engage coverage; the damages can arise indirectly, or can be more or less remotely connected to or grow out of the vehicle’s use or operation.  Indeed, it is difficult to contemplate language more broad in its scope than “arising…directly or indirectly from the use or operation” of an automobile. 

[116]      In my view, the causation test has been satisfied because the evidence establishes “some nexus or causal relationship” between Mr. Herbison’s damages and Mr. Wolfe’s use or operation of his truck that was more than “merely incidental or fortuitous”.  Mr. Wolfe was driving his truck to the deer‑hunting stand to meet his friends to join them for a deer hunt when he stopped the truck to hunt what he believed was a deer.  He would not have been in a position to do so had he not been operating his truck to go deer hunting.  The role of the truck throughout the sequence of events is crucial because, absent the use or operation of the truck to transport him and his hunting equipment to the deer‑hunting stand, Mr. Wolfe would have been unable to reach it.  The manner in which Mr. Wolfe’s use or operation of the truck gave rise to Mr. Herbison’s damages was that the truck transported him to the location where he shot Mr. Herbison, mistaking him for a deer.  Further, the truck’s headlights illuminated the object at which Mr. Wolfe fired his rifle.  While Mr. Wolfe had not reached the deer‑hunting stand when he shot Mr. Herbison, it is significant to the causation analysis that the reason that Mr. Wolfe had set out in his vehicle was to go deer hunting.  He was engaged in deer hunting when, tragically, he shot Mr. Herbison, having mistaken him for a deer.  While Mr. Herbison’s damages did not arise directly from Mr. Wolfe’s use or operation of his pick‑up truck, there was a sufficient nexus between its use or operation and the damages sustained by Mr. Herbison to find that his damages arose indirectly from the use or operation of the truck.  In my view, this is sufficient to satisfy the causation test.

VI

[117]      For the foregoing reasons, I would allow the appeal, set aside the judgment of Manton J. dismissing the appellant’s claim and order that the respondent indemnify the appellant in the amount of $832,272.85, together with post‑judgment interest commencing February 13, 2002.  For the reasons stated by Cronk J.A., I would dismiss Lumbermans’ appeal from the dismissal of its summary judgment motion.  The appellant will have his costs of the trial on a partial indemnity basis to be assessed if the parties cannot agree on the amount.  He will also have his costs of the appeal and Lumbermans’ appeal on a partial indemnity basis.  The appellant may submit his bill of costs and submissions within 10 days from the release of these reasons, and the respondent may file its submissions in reply within 10 days from the receipt of the appellant’s submissions, the submissions each not to exceed three pages in length.

 

“S. Borins J.A.”

“I agree K. Feldman J.A.”


FELDMAN J.A. (concurring with Borins J.A.):

[118]      I have had the benefit of reading the excellent reasons prepared by each of my colleagues, Borins J.A. and Cronk J.A.[5] I concur in the result reached by Borins J.A. for the reasons he gives, but also because of the following.

[119]      In my view, the case law that has interpreted the specific statutory language in this case, as well as the relevant language in the Amos case, in the context of the fact situations that have been addressed by the Supreme Court of Canada and by this court, make this case indistinguishable on the basis of legal principle. I refer in particular to the recent decision of this court in Lefor, where the court held that the child’s injuries arose indirectly out of the use or operation of the insured vehicle.

[120]      In that case, the insured vehicle was used to transport the injured girl to her grandmother’s house.  After the girl and her mother, the driver of the insured vehicle, got out of that vehicle, the girl was hit by another car while crossing the road.  Furthermore, her mother was partly responsible for the injury, first by parking the car on the opposite side of the road so that they would have to cross the road, and second by calling out to her daughter, telling her not to cross.  Unfortunately, the child thought she was being told to run across, and was hit.  The insured vehicle in no way blocked the view of the girl or of the oncoming car.  However, the court stated that parking on the opposite side of the road and leaving the car running while the mother and child darted across the road, put the child in a situation of danger and triggered the sequence of events that resulted in the child’s injuries.

[121]      Comparing the events in Lefor to those in this case, in both cases the injury was the result of an accident caused or contributed to by the driver of the insured vehicle, but the insured vehicle was not the proximate cause of the accident or the injury.  In both cases, the insured vehicle was stopped and neither the driver nor the injured party was in it when the accident happened.  In both cases, the accident occurred at a point in time and at a place immediately proximate to the insured vehicle, that is, there was no break in the temporal or spatial chain of events leading to the injury.  Furthermore, both injuries occurred after the vehicle was stopped, the driver was out of the vehicle, and therefore, on one view, following a break in the chain of causation.  However, in this case, the headlights illuminated the target, providing a separate causal link between the vehicle and the injuries.  Finally, in both cases, the use of the insured vehicle put the injured person in a situation of danger and triggered the sequence of events that resulted in the injury.  In this case, driving to a hunting expedition where there would be other people hunting on a dark early morning put those people in a situation of danger.

[122]      The conclusion that car insurance will respond to situations where the car is not the proximate cause of the injury, or where the injury appears to be only remotely connected to the car, is logically somewhat counter-intuitive.  However, the policy of the legislature in defining liability coverage as broadly as it has is to provide very extensive vehicle liability compensation to injured parties.  Furthermore, the case law has confirmed this legislative policy by according the statutory provision a very expansive interpretation.

[123]      Certainly there will be fact situations that will require the line to be drawn when applying the test for when an injury arises “indirectly” out of the use or operation of a vehicle.  For example, the injury at some point may be sufficiently remote from the insured vehicle, perhaps in time, in physical proximity, or in some other way, that it could not be considered to have arisen directly or indirectly from the ownership, use or operation of the vehicle.  However, I agree with Borins J.A. that based on the existing case law, the circumstances of this case fall within coverage under the statutory language.

RELEASED: June 7, 2005 (“SB”)

“K. Feldman J.A.”



[1] The interpretation of the phrase “arising directly or indirectly from the use or operation of an automobile”, as that phrase appeared in a family protection insurance coverage endorsement, was at issue in a recent unrelated case argued before this court.  The court’s reasons for judgment in that case, Vytlingam v. The Citadel General Assurance Company, are being released concurrently with the reasons in this case.

[2] I appreciate that the appellants are Mr. Herbison and members of his family, referred to by Cronk J.A. as the Herbison Group.  For ease of reference, throughout these reasons I refer to Mr. Herbison as if he were the only appellant.

[3] I agree with Cronk J.A.’s dismissal of Lumbermens Mutual Casualty Company’s appeal against the dismissal of its summary judgment motion.  Because of the view that I hold in respect to Lumbermens’ liability to indemnify Mr. Herbison, I am not concerned with Cronk J.A.’s dismissal of Lumbermens’ costs appeal.

[4] In finding that Mr. Herbison had failed to satisfy the purpose test, in paragraph 18 of his reasons the trial judge said: “As an aside, given the law prohibits the usage of headlights to illuminate a hunting target, that use cannot constitute an ordinary use to which vehicles are put.”  Notwithstanding that the trial judge described this comment as “an aside”, in my view it is necessary to state my disagreement with the trial judge, who provided no supporting authority for his opinion that the illegal operation of a motor vehicle precludes coverage under s. 239(1) of the Insurance Act.  Moreover, if the trial judge is correct, the result would be to negate the purpose and effect of s. 258(1) of the Act, under which this action is brought.  Section 258(1) provides that any person who has recovered a judgment “against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy”, may have the insurance money payable under the contract applied in or towards satisfaction of the person’s judgment.  For example, if the trial judge is correct it would mean that a person injured by an insured who was speeding or making an illegal turn would have no recourse to s. 258(1) if that person was required to enforce his or her judgment under the insured’s contract of insurance against his or her insurer.

[5] I have also read the reasons of MacFarland J.A. and the dissenting reasons of Juriansz J.A. in Vytlingam v. The Citadel General Insurance Company.