DATE: 20050607
DOCKET: C42343
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B E T W E E N : |
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MICHAEL VYTLINGAM
by his Litigation Guardian, CHANDRA VYTLINGAM,
CHANDRA VYTLINGAM and SUZANA
VYTLINGAM |
Geoffrey D.
E. Adair, Q.C. |
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- and - |
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TODD FARMER,
ANTHONY RAYNOR, THE CITADEL
GENERAL ASSURANCE
COMPANY and CO-OPERATORS GENERAL INSURANCE
COMPANY |
Stanley C. Tessis |
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Heard: April 7, 2005 |
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On appeal from the judgment of Madam Justice Nancy L. Backhouse of the Superior Court of Justice dated July 28, 2004.
[1] The appeal involves the interpretation of a Family Protection Coverage endorsement contained in an automobile insurance policy issued by The Citadel General Insurance Company (“Citadel”) to the respondent Chandra Vytlingam.
FACTS
[2] The facts that give rise to this appeal are as follows. On March 14, 1999 the defendants Todd Farmer and Anthony Raynor, who are not parties to this appeal, used Farmer’s 1996 Nissan Altima to transport at least two large boulders to the old Wilmington Road/Highway 87 overpass bridge near Fayetteville, North Carolina. Their plan was to drop the boulders onto the Interstate 95 highway, which ran underneath the bridge, into the path of oncoming vehicles.
[3] Farmer drove his vehicle with his brother Kevin Farmer and Raynor as passengers to a service road near a Public Works Commission plant. There, the three placed the boulders into the trunk and/or back floorboard of Farmer’s car. They then drove to the overpass bridge, a distance of about four miles.
[4] On arriving at the bridge, Farmer stopped the car, left the engine running, and turned off the lights. He and Raynor got out but left the doors open. Kevin Farmer stayed in the car. Farmer and Raynor each removed a large boulder and dropped them off the bridge. One of the boulders struck a 1998 Ford Explorer operated by the respondent Michael Vytlingam. The other boulder struck the hood of a tractor-trailer truck, but the driver of the truck was not injured. Farmer and Raynor immediately got back into Farmer’s car and left the overpass. They then drove down to the I-95 and past the scene of the accident twice without stopping to help.
[5] Michael Vytlingam, accompanied by his father Dennis, had been going northbound on the I-95; the two were returning home to Mississauga from a Florida vacation. The boulder smashed through the windshield and roof of their Explorer, striking Michael Vytlingam in the head and body and causing him catastrophic and permanent injury. After the incident, Dennis Vytlingam managed to gain control of the vehicle and gradually brought it to rest at the side of the highway.
[6] Farmer and Raynor were both arrested on December 20, 1999. On December 15, 2000, they plead guilty to and were convicted of assault with a deadly weapon with intent to kill, inflicting serious injury, and conspiracy to commit assault with a deadly weapon with intent to kill. Both received lengthy prison sentences.
[7] In February 2001, Michael Vytlingam, Chandra Vytlingam (Michael Vytlingam’s mother), and Suzana Vytlingam (Michael Vytlingam’s sister) launched a claim against Todd Farmer, Raynor, Citadel and the Co-operators General Insurance Company, which was the insurer of the vehicle operated by Michael Vytlingam at the time of the accident.
[8] It is admitted that Michael Vytlingam was at all material times both an “insured person” and an “eligible claimant” under automobile insurance policy number 8978803, issued by Citadel to Chandra Vytlingam, which policy contained an OPCF 44R Family Protection Coverage endorsement.
[9] That endorsement provides:
[T]he insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile.
[10] Elsewhere, at 1.5(a), it defines an “inadequately insured motorist” as follows:
[T]he identified owner or identified driver of an automobile for which the total motor vehicle liability insurance or bonds, cash deposits or other financial guarantees as required by law in lieu of insurance, obtained by the owner or driver is less than the limit of family protection coverage.
[11] In the State of North Carolina at the time of the accident, drivers were only obliged to carry third-party liability insurance with minimum limits of $25,000 (U.S.), and those were the limits carried on Farmer’s Altima at the time of the accident. The respondents settled the within action with Farmer and Co-Operators for $25,000.00 (U.S.), Raynor having been noted in default. Citadel agreed to the settlement subject to the condition that the $25,000 (U.S.) would reduce Citadel’s policy limits of $1,000,000, in accordance with the terms of the Family Protection Coverage endorsement.
[12] In May 2004, Citadel filed a notice of motion for summary judgment against the Vytlingams or, in the alternative, for an order determining a question of law, being whether the Vytlingams are entitled to recover damages pursuant to the insurance policy. The motions judge dismissed Citadel’s motion for summary judgment and found that the Vytlingam’s were entitled to the damages claimed. It is this decision that Citadel appeals.
ANALYSIS
[13] Mr. Adair, counsel for the appellant Citadel, makes three submissions. He submits that for an eligible claimant to recover under this endorsement two separate elements must be established: (1) the insured person must be legally entitled to recover compensatory damages “from an inadequately insured motorist” (and he emphasizes the word “motorist”); and (2) the insured person’s injuries must arise “directly or indirectly from the use or operation of an automobile”. [1] Mr. Adair argues that the respondents in this case have not established either of these elements.
[14] His third submission is that the motions judge did not have jurisdiction to grant judgment in favour of the plaintiffs on Citadel’s motion for summary judgment, unless properly satisfied that the only issue in this case was one of law. As it was open to Citadel to vigorously contest the extent to which the car was truly central to Farmer and Raynor’s plan, the determination made by the motions judge was not appropriate in this case.
(1) Was Todd Farmer was an “inadequately insured motorist”?
[15] Mr. Adair argues that the only reasonable meaning to ascribe to the word “motorist” in the Family Protection Coverage endorsement is one that limits recovery to circumstances where it is the actions of the at-fault party as a motorist that cause an accident.
[16] In this respect he relies on the judgment of the Supreme Court of Canada in Somersall v. Friedman, [2002] 3 S.C.R. 109 at paras. 17-18, where Iacobucci J. for the majority noted:
The specific purpose of the SEF 44 Endorsement is to provide coverage, in exchange for a premium paid by the insured, for injuries sustained by the insured and eligible other occupants of the vehicle, in motor vehicle accidents caused by motorists who are not insured or whose liability limits are insufficient to compensate the injuries suffered by the claimants. Although the form of the SEF 44 is standardized, it is an optional coverage for which the premium paid is in addition to the premium paid for the coverage purchased under the standard automobile policy.
The essence of this endorsement is that the insured protects himself, by making the extra payment, from the risk of being injured by an inadequately insured motorist. …
[17] Somersall was not concerned with the phrase “inadequately insured motorist” but rather with the phrase “legally entitled to recover”. Further, the factual situation before the court in that case involved a collision between two automobiles. One must be careful to avoid reading more into the language of Iacobucci J. than was intended. The appeal before this court does not involve a typical motor vehicle accident.
[18] On a plain reading of the definition contained in 1.5(a) of the Family Protection Coverage endorsement, Todd Farmer is the identified owner of an automobile for which the total motor vehicle liability insurance is less than the limit of Chandra Vytlingam’s family coverage. He fits the definition of an “inadequately insured motorist” as the language of the policy itself defines that term.
[19] Further, to accept Mr. Adair’s argument in this respect ignores, in effect, the concluding words of the insuring agreement “arising directly or indirectly from the use or operation of an automobile”. In circumstances where the policy itself defines the term in plain and unambiguous language it is not for the court to give emphasis to one word such that coverage would be narrowed.
(2) Did the injuries to Michael Vytlingam arise “directly or indirectly from the use or operation of an automobile”?
[20] Mr. Adair argues that Michael Vytlingam’s injuries did not arise “directly or indirectly from the use or operation of an automobile.”
[21] The leading case in this area is the decision of the Supreme Court of Canada in Amos. v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405. In Amos, the language of the British Columbia regulation before the court provided: “[T]he 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 …” Major J. for a unanimous court stated the two-part purpose and causation test to be used to interpret this language 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 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?
[22] While the court in Amos was considering first-party (or no-fault) coverage rather than third-party (or liability) coverage it should in my view make no difference where the language used is the same or similar. In such circumstances, there can be no principled basis upon which to distinguish the two forms of coverage.
[23] In this respect, I note the decision of the British Columbia Court of Appeal in Chan v. Insurance Corporation of British Columbia, [1996] W.W.R. 734 at para. 20:
I would agree with counsel for the appellant that Amos is distinguishable on its facts and on the language of the regulation or statute to be interpreted. However, on the fundamental question of the meaning to be given to the words “arising out of the use or operation”, I take the Court’s pronouncement to be of general application.
[24] In Amos the insured, a Canadian citizen from Vancouver, was attacked by a gang while driving his van in East Palo Alto, California. The facts in that case are well known and important. Six men surrounded Mr. Amos’ van as he pulled away from an intersection. One of the assailants shattered the driver’s side window. Another walked in front of the van, pointed a gun at Mr. Amos, then moved to the driver’s side, where he used the gun to clear the shattered glass from the window frame. Mr. Amos felt a change come over his body; he lost control of his legs and had difficulty breathing. He realized he had been shot, although he had not heard the gun go off. He was able to keep his van moving by pushing down on his leg to depress the accelerator. He managed to get away, and after going several blocks he brought the vehicle to a stop. One of the bullets fired had lodged in Mr. Amos’ spine, causing serious permanent injury.
[25] Major J. reviewed the jurisprudence in relation to both the purpose and the causation tests. The purpose test was easily satisfied. Mr. Amos was driving his van down a street; the accident, the court noted at para. 18, “clearly resulted ‘from the ordinary and well-known activities to which automobiles are put.’” The court then went on to consider the causation test and concluded at para. 21:
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. …
[26] Major J. considered jurisprudence from the United States where some cases showed a general trend towards a narrow application of the causation principle while others adopted a more generous approach. He then discussed Dickinson v. Motor Vehicle Insurance Trust, [1987] 61 A.L.J.R. 553, a decision of the High Court of Australia in which that court noted:
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 from such use. …
[27] In his discussion of this case, Major J. noted at paras. 23-24:
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 a motor vehicle may be covered by s. 79(1).
[28] Major J. went on to consider the facts of the case before the court at paras. 25-28:
Was the attack in this case merely a random shooting, or did it arise out of the ownership, use or operation of the appellant’s vehicle? While the appellant’s van may have been singled out by his assailants on a random basis, the shooting which caused the appellant’s injuries was not random. The appellant’s vehicle was not merely the situs of the shooting. The shooting appears to have been the direct result of the assailant’s 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 van 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. (For an analogous example of the application of the causal connection test, see McIndoe v. Insurance Corp. of British Columbia (1990), 45 C.C.L.I. 68 (B.C.S.C.).)
… 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.
[…]
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 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 and operation of a vehicle and the injuries sustained as a result of an accident.
[29] The question that remains is whether Michael Vytlingam’s injuries can be said to have arisen directly or indirectly from the use or operation of an automobile.
[30] In my view the language of the Family Protection Coverage endorsement in the case at bar is broader than the language that was at issue in the Amos case. In this respect I note the comment in Saharkhiz v. Underwriters, Members of Lloyd’s, London, England (1999), 46 O.R. (3d) 154 (Sup. Ct.), aff’d (2000), 49 O.R. (3d) 255 (C.A.), where Lederman J. noted at para. 14:
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 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.)).
[31] As the motions judge noted in her reasons it was agreed in statements by both Farmer and Raynor that:
(a) the use of Farmer’s vehicle was necessary and central to the plan to transport the boulders to the scene of the incident;
(b) Farmer’s vehicle was used to make their escape easy and identification next to impossible;
(c) Absent the transportation of the boulders to the bridge in Farmer’s car, the plan conceived by the defendants could not have been executed and the plaintiff would not have sustained severe and catastrophic injuries. Farmer’s use of his vehicle thus contributed to the catastrophic injuries suffered by the plaintiff;
(d) Farmer permitted and allowed his vehicle to be used to assist him and Raynor to carry out the plan to drop the boulders.
She therefore concluded:
Based on the statements of Farmer and Raynor, it seems obvious that their motor vehicle was:
(a) central to the escape;
(b) required to transport them to the scene; and
(c) of most significance, necessary to transport the boulder.
Without some motorized transportation, they could not have accomplished their goal. Transporting goods is an ordinary and common use of a motor vehicle. I am satisfied that the purpose component has been met on these facts.
[32] The motions judge then considered the second part of the Amos test, which deals with causation, and concluded:
In my opinion, the use or operation of the vehicle was not merely incidental or fortuitous. Its use was central to the defendants’ entire plan. It was necessary for their transportation to the scene, essential to carry the boulders, and the means for their escape.
The motor vehicle need not be the instrument of the injury to satisfy the causal connection. (Amos, supra).
In my opinion, there is a nexus or causal relationship between the plaintiff’s injuries and the use or operation of Farmer’s motor vehicle.
[33] In my view the factual findings made by the motions judge were open to her on the undisputed record before her. Such factual findings are entitled to deference and must not be disturbed absent palpable and overriding error: Housen v. Nikolaisen, [2002] 2 S.C.R. 235; H.L. v. Canada, 2005 SCC 25. Accordingly, the appellant can only succeed if it shows that the motions judge committed legal error or committed a serious error when applying the facts, as found by her, to the two-part test from Amos.
[34] In my view, the use of the words “directly or indirectly” in the endorsement before us is of significance. The definition of the term “accident” in the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96 is defined as follows:
“accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device [Emphasis added.]
[35] Before this change (under the old Statutory Accident Benefits Schedule – Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93), the term “accident” had been defined as follows:
“accident” means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device. [Emphasis added.]
[36] Clearly, and as this court noted in Chisholm v. Liberty Mutual Group (2002), 60 O.R. (3d) 776 at 782:
The legislative history of the Schedule shows an intent to differentiate between direct and indirect cause. Undoubtedly, as a cost-saving measure, the 1996 Schedule limits coverage to incidents in which the use or operation of an automobile directly causes an injury.
[37] Similarly, while the word “indirectly” was removed from the accident benefits (no-fault) coverage in 1996, it remains in the third party liability coverage as it does in the language of the endorsement before us. Logically one must conclude that the liability coverage is intended to be of broader application than the accident benefits coverage. I agree with the observation of Lederman J. in Saharkhiz, supra, that the use of the word “indirectly” imports a relaxed causation requirement comparable to the one suggested by Major J. in Amos.
[38] In my view the purpose test is met. Farmer and Raynor, acting in concert, drove to the overpass bridge from which they targeted the Vytlingams’ Explorer. It matters not which of the two threw the rock where they were, as here, engaged in a common enterprise. As the British Columbia Court of Appeal noted in Chan, supra at para. 6:
If more than one person was involved the irresistible inference is that the driver was engaged in a common enterprise with the person who actually threw the brick and that the driver had prior knowledge of the passenger’s intention to throw a brick at another vehicle. I think one may also reasonably infer that the unidentified vehicle was being driven on a highway for that purpose, that is to say, to locate a target in circumstances where, after the assault with the brick, escape would be quick and identification next to impossible.
[39] The Chan case is hauntingly similar to the one before us. Ms. Chan was a passenger in her boyfriend’s vehicle. While the two were travelling on a highway, a brick thrown from an oncoming vehicle came through the right side of their windshield, striking and injuring Ms. Chan. On those facts, the court concluded that both the purpose and causation tests were met.
[40] In my view it matters not that Todd Farmer’s vehicle was not in motion at the time of the incident. This follows from Dickinson, supra, where it was held that it did not matter whether the injuries at issue were caused by the actual use of a vehicle, so long as they arose from the use of a vehicle. Similarly it does not matter that those who threw the boulder did so while temporarily outside the automobile: see Lefor (Litigation Guardian of) v. McClure (2000), 49 O.R. (3d) 557 (C.A.) and Saharkhiz, supra. As long as there is sufficient connection between the use or operation of the underinsured vehicle and the throwing of the boulder one may conclude that the use or operation of the vehicle contributed to Michael Vytlingam’s injuries. In my view that necessary connection is present in this case.
[41] For these reasons, I agree with the motions judge that the injuries to Michael Vytlingam arose either directly or indirectly from the use or operation of Farmer’s vehicle.
(3) Did the motions judge err by granting judgment in favour of the plaintiffs?
[42] The last issue raised by the appellant is whether the motions judge erred in law in granting judgment in favour of the plaintiff on a motion brought by the defendant.
[43] In its factum at paras. 40-41 the appellant states:
Generally, defence motions for summary judgment pursuant to Rule 20 are disposed of by either allowing the motion and dismissing the action or dismissing the motion itself in which case the matter proceeds to trial. The court has no jurisdiction to grant judgment in favour of the plaintiff on such a motion unless the court is satisfied that the only genuine issue is a question of law.
It is respectfully submitted that for all the same reasons a defence motion under Rule 21 ought to be dismissed without determining the matter on the merits unless the only substantial issue in the case is a question of law.
[44] In my view it was equally open to the motions judge to decide the case as she did, provided she was satisfied either that there was no genuine issue for trial or that the only genuine issue was one of law. Rules 20.04(2) and (4) give the motions judge any necessary jurisdiction in this respect: see Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415 at 448; Whalen et al. v. Hillier (2001), 53 O.R. (3d) 550 (C.A.) at para. 14.
[45] For the reasons given above, I am of the view that the motions judge correctly decided the liability issue before her on the basis of the undisputed factual record. Those facts that were in dispute between the parties (i.e., the distance separating the parked car from the location where the boulder was thrown and the amount of time that Farmer and Raynor waited before throwing the boulder) were not relied on by her and were unnecessary to her decision.
[46] Moreover, in my view the appellant is precluded from raising this issue on the appeal by reason of the order of Labrosse J.A. made November 10, 2004, which provides at para. 3 thereof:
THIS COURT ORDERS that if the Appeal of the Appellant, the Citadel General Assurance Company, is dismissed, the Appellant, the Citadel General Assurance Company, will pay to the Respondents the sum of $960,765.70, plus post-judgment interest at the rate of 4% per annum, from July 27, 2004, the date of the judgment of the Honourable Madam Justice Backhouse, without requiring a trial to determine liability and to assess the damages of the Respondents, subject to any appeal to the Supreme Court of Canada.
[47] The third ground of appeal, if successful, would have the effect of requiring a trial on liability. As that result has been precluded by an earlier order of this court, issued on consent of the parties, the appellant cannot raise this ground of appeal.
[48] In the result, I am of the view that the respondents are entitled to coverage and the appeal is dismissed.
[49] I would award costs to the respondents fixed on a partial indemnity scale in the sum of $12,500.00 inclusive of G.S.T. and disbursements.
“J. MacFarland J.A.”
“I agree J.C. MacPherson J.A.”
[50] I have read the reasons of MacFarland J.A. but do not agree with the conclusion she reaches. Her review of the facts, the issues, and the law enable me to state more briefly why I would allow the appeal, set aside the summary judgment granted by the motion judge, and replace it with an order granting summary judgment in favour of The Citadel General Insurance Company (“Citadel”).
[51] On March 14, 1999 Michael Vytlingam was catastrophically injured when Todd Farmer and Anthony Raynor dropped a boulder from an overpass bridge over the Interstate 95 highway on which they were standing into the path of the car he was driving. Farmer and Raynor had arrived at the overpass, and had transported the boulder there, in Farmer’s 1996 Nissan Altima automobile.
[52] Since that date, Mr. Vytlingam has received statutory accident benefits from his insurer, Citadel. At the date of the summary judgment motion these totalled $1,302,534.70 and continue to be paid. Chandra and Suzana Vytlingam, the mother and sister of Michael, also continue to receive statutory accident benefits from Citadel because of the psychological harm they suffered. At the date of the summary judgment motion these totalled $105,823.52.
[53] The issue is the plaintiffs’ entitlement under the OPCF 44R Family Protection Coverage endorsement on the Vytlingam vehicle, which provides:
[T]he insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile.
[54] The endorsement also defines an “inadequately insured motorist” as follows:
[T]he identified owner or identified driver of an automobile for which the total motor vehicle liability insurance or bonds, cash deposits or other financial guarantees as required by law in lieu of insurance, obtained by the owner or driver is less than the limit of family protection coverage.
[55] I agree with MacFarland J.A. that the concluding words of the insuring clause “arising directly or indirectly from the use or operation of an automobile” define the ambit of circumstances that are covered. In my view, the word “motorist” in the defined term “inadequately insured motorist” merely reflects the association of the owner or driver with the automobile in question. It does not connote any additional requirement relating to the activity of the at fault party. This is clear because the “inadequately insured motorist” includes an owner whose actions may be wholly unconnected to the events.
[56] The Vytlingams are legally entitled to recover from Farmer and Raynor in tort. The single issue in this case is whether Mr. Vytlingam’s injuries arose directly or indirectly from the use or operation of the Farmer vehicle, thus entitling the Vytlingams to recover from Citadel.
[57] I agree that the test to be applied is that stated by the Supreme Court of Canada in Amos. v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405:
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? [at para. 17]
[58] In Amos, the insured was driving his van and was attacked and shot by a number of assailants who were on foot. The issue was whether he was entitled to first party no fault accident benefits under the provincial statutory scheme. The operative words or the B.C. regulation were “... the 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....”
[59] The difference in the wording in the B.C. regulation in Amos and the Family Protection Endorsement in this case should be noted. The words “accident” and “ownership” are not found in the Family Protection Endorsement. On the other hand, the words “directly or indirectly” appear in the Endorsement but not in the regulation. These differences do not affect the outcome of this appeal, which was quite correctly argued on the basis of the Amos test. First, as we shall see below, the Supreme Court of Canada has given the broadest interpretation to the phrase “arising out of” without any modifiers. Second, even if the different wording of the Family Protection Endorsement strengthened the Vytlingams’ case, I am of the view the result would be the same.
[60] Amos was concerned with first party coverage whereas the Family Protection Endorsement in this case focuses on the legal liability of “an inadequately insured motorist.” While Amos’ interpretation of the phrase “arising out of the use or operation” is of general application, it is useful to keep this difference in context in mind. I will elaborate later in these reasons.
[61] Major J. described the first question as the “purpose test.” The answer to the first question will depend on the characterization of the activity to which the automobile is put. It is vital, having regard to the entire course of activity said to give rise to the loss, to consider whether the injuries resulted from ordinary well-known activities to which automobiles are put.
[62] The motion judge answered the first question affirmatively because “transporting goods is an ordinary and common use of a motor vehicle.” In my view, this characterization applies only to the first part of the identified course of activity, i.e. taking the boulders to the overpass. However, the injuries in this case did not result from the activity of transporting boulders but from the activity of persons standing on the overpass dropping boulders. When Farmer and Raynor got out of the car to drop the boulders, they were no longer using the car to transport anything. Their activity in dropping boulders while standing on the overpass cannot be characterized as involving the ordinary and well-known automobile activity of transporting goods. Dropping boulders is the activity from which the injuries resulted, and during this activity Farmer and Raynor were not using the car at all. In my view, it cannot be said that the injuries resulted from the ordinary and well known activities to which automobiles are put. In my view the answer to the first question is “no”
[63] The second question is the “causation test.” It must be understood and applied in light of Major J.’s reasons. Major J. began the discussion by referring to the earlier decision of the Supreme Court of Canada in Law, Union & Rock Insurance Co. v. Moore’s Taxi Ltd., [1960] S.C.R. 80. In that case, a taxi company transported mentally handicapped children to and from school. The contract stipulated that the taxi drivers were not to let the children out on the side of the street opposite their homes. A driver breached that arrangement, and a child who had been let out on the opposite side of the street, was hit by a truck and severely injured when crossing the street alone. The Supreme Court held that the taxi company’s liability arose from a breach of its contractual duty that occurred after the taxi had stopped and had nothing to do with the use and operation of its vehicle. At page 84, Ritchie J. said that the words “claims arising out of... the ownership, use or operation... of any motor vehicle” could only be construed “as referring to claims based upon circumstances in which it is possible to trace a continuous chain of causation unbroken by the interposition of a new act of negligence and stretching between the negligent use and operation of a motor vehicle on the one hand and the injuries sustained by the claimant on the other.”
[64] After referring to several other cases to illustrate the “causation” principle, Major J. phrased the question in the case before him in a manner that highlights the causal link required: “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.” Major J. went on to say that a direct or proximate causal link was not required and that the phrase “arising out of” is broader than “caused by.” He then referred to the decision of the Michigan Court of Appeals in Kangas v. Aetna Casualty & Surety Co., 235 N.W. 2d (1975), in which the court stated “while the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injuries 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 foreseeably identifiable with the normal use, maintenance and ownership of the vehicle.”
[65] Major J. noted that the Michigan Court of Appeals recognized that the words “arising out of” are broader than “caused by”, and mean “originating from”, “having its origin in”, “growing out of”, “flowing from”, “incident to”, or “having connection with”.
[66] After completing his review of American law, Major J. again observed that a nexus or causal link was necessary, but that it was open for the courts to draw reasonable inferences regarding causation from the facts.
[67] Major J. approved of the “wide formula” of causation in Dickinson v. Motor Vehicle Insurance Trust, [1987] 61 A.L.J.R. 553, a decision of the High Court of Australia and concluded: “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.”
[68] Major J. noted that bullets and not a motor vehicle caused the injuries in Amos. Major J. reasoned that “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.”
[69] After discussing some hypothetical situations, Major J. commented “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 then stated his conclusion that Mr. Amos’ injuries arose out of the ownership, use and operation of his automobile. However, he added “Neither can it be said that there was an intervening act, independent of the ownership, use or operation of the vehicle, which broke the chain of causation.” Major J. then reiterated his view that “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....”
[70] In my view, Major J.’s remarks that the plaintiff is entitled to coverage where the use or operation of a motor vehicle contributes to or adds to the injury and that negligence and fault in the use of a motor vehicle are not necessary, and his comments about the breadth of the words “arising out of”, should not be understood in isolation. They must be applied in light of his repeated statements that a causal connection is required and that the chain of causation was not broken by an intervening act in the case before him. The requirement of some nexus or causal relationship is in the forefront of his formulation of the second question of the two-part test.
[71] While, as Major J. noted, each case must be decided on its own facts, his reasons in Amos provide insight into the nature of the nexus or causal connection required. Major J. approved of the decision of the Michigan Court of Appeals in the Kangas case, which in the passage set out above, indicated that a “but for” analysis is not sufficient to establish the causal connection required. Major J.’s reasoning shows he adopted this principle.
[72] Driving from one place to another is undoubtedly the most ordinary use of a car. Yet, the fact that the bullets entered Mr. Amos’ van and injured him while he was driving was not enough for Major J. to conclude that the injuries Mr. Amos suffered arose out of the van’s use or operation. If Mr. Amos had been the victim of a random shooting it could be said that “but for” the fact he used the van to drive himself to where he was attacked, he would not have been shot. It might be said that his injuries “flowed from” or “had connection with” the use of his van. Nevertheless, Major J. was unequivocal that a truly random shooting (which I understand to be a stray bullet as opposed to an attack on a randomly selected vehicle), would not have been covered. An additional link was required to causally connect the bullets to the automobile’s use. In my view, Amos makes clear that a “but for” analysis is insufficient to establish the requisite causal connection.
[73] While the “but for” analysis is used to determine causation in other contexts, it is apparent that applying it in answering the second question of the Amos test would lead to findings of causal connection in limitless situations. We live in a car culture. People use cars to get to the places where they cause or suffer damage. “But for” the use of cars, they would not be at those places and would not cause or suffer the damage. People use cars to transport things to places where they then use those things in ways that cause damage. “But for” the use of cars, a great many plans that result in damage, whether intentionally or unintentionally, could not be carried out.
[74] In my view, more is required than the fact that the participants and objects involved in an event have been conveyed to the site of the event in a car. The Amos test requires consideration not of whether the injuries would have occurred “but for” the use or operation of the vehicle, but whether the use or operation of the vehicle has a nexus or causal relationship to the injuries. The use of a “but for” analysis in this context will identify relationships that may be merely incidental or fortuitous.
[75] In my view the motion judge erred by using a “but for” analysis. She observed: “Absent the transportation of the boulders to the bridge in Farmer’s car, the plan conceived by the defendants could not have been executed and the plaintiff would not have sustained severe and catastrophic injuries.” After noting that the Farmer vehicle was required to transport Farmer and Raynor and the boulders to the scene, the motion judge said: “Without some motorized transportation, they could not have accomplished their goal.” These observations may be true, but in my view they do not support the conclusion that Mr. Vytlingam’s injuries arose directly or indirectly from the use of the Farmer vehicle.
[76] Furthermore, the motion judge emphasized the defendants’ planning and how the use of the Farmer vehicle was necessary and central to their plan. This is reminiscent of the assailants’ plan in Amos to attack the insured’s vehicle. However, Amos and the cases to which it referred were concerned with damage arising out of the use or operation of the insured’s vehicle. In those cases the intent of the assailants to attack the vehicle was necessary to establish the causal link, as the assailants were pedestrians and the issue was whether the damage was causally connected to the insured’s automobile. Major J.’s comment that “The liability for the injury may arise from a tortious act other than the negligent use of a motor vehicle...” must be understood in this context.
[77] Where the tortfeasors are pedestrians as in Amos, the liability for the injury cannot arise from the negligent use of a motor vehicle. The only vehicle in the Amos case was that of Mr. Amos. The issue was whether his own insurance covered the injuries he suffered while driving in his van. The point Major J. was making was that Mr. Amos’ insurance covered the injuries he suffered when persons attacked his van.
[78] The context of this case is different. The boulder, like the attack in Amos, was clearly directed at the insured’s vehicle. The plaintiffs, like Amos, are entitled to first party benefits. However, the issue in this case is whether the damage is causally connected to the Farmer vehicle, not the insured’s vehicle. Because of this I do not regard the planning of Farmer and Raynor to be particularly pertinent in this case. They, like many criminals, planned to use a car to transport themselves and the materials needed to commit the crime to the scene of the crime. I do not understand why the result should be different if Farmer and Raynor had dropped boulders accidentally after transporting them to the overpass to perform construction work on the bridge.
[79] Nor do I regard it as pertinent that the vehicle was central to Farmer’s and Raynor’s ability to escape the scene. Whether they were apprehended immediately or later as they were or not at all would not affect the damage suffered by Mr. Vytlingam. Their escape bears no nexus or causal relationship to his injuries.
[80] The act of Farmer and Raynor dropping the boulder on the Vytlingam vehicle while they stood on the overpass caused the damage in this case. This independent act was unconnected to the car. In the words of Major J., it was “…an intervening act, independent of the ownership, use or operation of the vehicle, which broke the chain of causation.” The use of a car by Farmer and Raynor was merely incidental.
[81] It is necessary to comment on the decisions of this court in Lefor (Litigation Guardian of) v. McClure (2000), 49 O.R. (3d) 557 (C.A.) and Saharkhiz v. Underwriters, Members of Lloyd’s, London, England (1999), 46 O.R. (3d) 154 (Sup. Ct.), aff’d (2000) 49 O.R. (3d) 255 (C.A.) and the decision of the British Columbia Court of Appeal in Chan v. Insurance Corporation of British Columbia, [1996] W.W.R. 734.
[82] In Saharkhiz, a taxi driver was assaulted by his passengers. He claimed statutory accident benefits from his own insurer. The situation was similar to that in Amos as the plaintiff was attacked while operating his own vehicle. The motion judge held that he was entitled to the statutory benefits. This court observed, in affirming the decision of the motion judge, that he had found “an unbroken line of causation exist[ed], a line beginning with the ride in the taxi cab and ending with the assault.”
[83] In Chan, the brick thrown from an oncoming vehicle struck and injured a passenger in the insured’s car. The passenger claimed benefits available from I.C.B.C. for the liability of an unidentified owner or driver. The issue was whether her injuries arose out of the use or operation of the oncoming vehicle. The B.C. Court of Appeal said “…the operation of the unidentified vehicle on the highway placed the assailant in a position to target an oncoming vehicle with his brick” and confirmed the connection between the use of oncoming vehicle and the injuries. There is no such connection between the use of the Farmer vehicle and dropping boulders while standing of the overpass.
[84] In Chan, the Court observed that “[t]he vehicle was also used to make the assailants’ escape easy and identification next to impossible.” This was relevant because there had to be an unidentified owner or driver for the provision under which the claim was brought to apply. In this case the only issue is whether the injuries arose directly or indirectly from the use of operation of an automobile. Therefore, as I have explained above, the use of the car by Farmer and Raynor to escape the scene is not pertinent.
[85] In Lefor a girl was being dropped off at her grandmother’s house by her mother who was then continuing on her way. The girl was struck by an oncoming vehicle while she crossed the road. This court found the motion judge correctly concluded that the accident arose, directly or indirectly, from the use or operation of her mother’s car. The court held that stopping vehicles on the side of a road to pick up and drop off passengers is an ordinary and expected use of an automobile. The Court said “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 [the girl] in a situation of danger and triggered the sequence of events that resulted in [her] injuries.”
[86] The difference between Lefor and this case can be best illustrated by considering how a jury, had there been one in each case, would have identified the particulars of legal liability. Given the finding that parking the car in Lefor triggered an unbroken sequence of events that resulted in injury, a jury asked what it found to be the particulars of the mother’s negligence would include in its answer the fact that the mother parked her car in circumstances that placed the child in a situation of danger. In this case, my view is that a jury identifying the particulars of the legal liability of Farmer and Raynor would not make any reference to their car.
[87] Accordingly, given my conclusion that neither the purpose test not the causation test established in Amos have been satisfied in this case, I would allow the appeal and set aside the summary judgment granted by the motion judge, and replace it with an order granting summary judgment to the appellant Citadel.
[88] As no costs are sought by the appellant, I would award none.
“R. G. Juriansz J.A.”
[1] The interpretation of the phrase “arising from the ownership or directly or indirectly from the use or operation” of an automobile, as that phrase appeared in a standard motor vehicle liability insurance policy, was also at issue in a recent unrelated case argued before this court. The court’s reasons for judgment in that case, Herbison v. Lumbermens Mutual Casualty Company (docket number C40602), are being released concurrently with the reasons in this case.