



COURT OF APPEAL FOR ONTARIO

CITATION: Economical Mutual Insurance Company v. Caughy, 2016
    ONCA 226

DATE: 20160324

DOCKET: C60642

Hoy A.C.J.O., Lauwers and Hourigan, JJ.A.

BETWEEN

Economical Mutual Insurance Company

Appellant

and

Patrick Caughy

Respondent

Daniel Strigberger and Alexandra Wilkins, for the
    appellant

Nigel Gilby, Jasmine Akbarali, and Christopher Dawson,
    for the respondent

Heard: February 16, 2016

On appeal from the judgment of Justice Robert J.
    Nightingale of the Superior Court of Justice, dated June 10, 2015, with reasons
    reported at 2015 ONSC 3251, 51 C.C.L.I. (5th) 111.

Hourigan J.A.:

[1]

At issue on this appeal is whether the application judge erred in
    finding that the respondent

was involved

in

an

accident,

as that term is defined in

s.
    3(1)

of the
Statutory Accident
    Benefits Schedule  Effective September 1, 2010
, O. Reg. 34/10 (the 
SABS
),

in

relation

to an incident where the respondent was

injured

when

he

tripped

over

a

parked
    motorcycle.

[2]

For the reasons that follow, I conclude that the application judge was
    correct in finding that the respondent was involved in an accident, as that
    term is defined in the
SABS
. Accordingly, I would dismiss the appeal.

Background

[3]

Over the August

long weekend

in

2012,
    the respondent

camped

with

his

wife

and

two

daughters

at

a

country

music
    jamboree

in

Bothwell, Ontario.

He
    detached his camping trailer and parked it alongside other

trailers

and

cars

in

the

shape

of

a

horseshoe
    on a campsite.

A

gap

between

the respondents

truck

and another trailer

was

left
    for

campers

to

use

as

a

walkway

leading

out

of

their

campsite.

[4]

On

August

3,

2012,
    some

campers arrived

on

two
    motorcycles and parked

on

the

site

where

the

respondents

family
was
camped. The

motorcyclists parked

within

the

horseshoe

and

in

front

of

the

trailer

adjacent

to

the respondents

truck. At this point, the

motorcycles were

not

blocking

the

walkway.
    However, after

nightfall,

and

without

the respondents

knowledge,

the

motorcycles

were

moved and

parked

on

the

walkway.

[5]

At

around

midnight that night,

the respondent

was

playing

tag

with

his daughter

and

her

friend

around

his

parked

truck,

using

the

truck

as

an
    obstacle

to

separate himself from them.

As
    the respondent

proceeded

into

the

walkway

between

his truck

and the

adjacent

trailer
,
he

tripped

over

one

of

the
    motorcycles.

The impact

propelled

him

forward into

his

truck,

which

he

struck before

falling

to

the

ground.

The respondent

sustained

serious

spinal

cord

injuries

as

a
    consequence of his fall.


[6]

At the time of the incident, the respondent was intoxicated
.
He

deposed

that

notwithstanding
    his

alcohol

consumption,

he

has

a
    memory

of

the

incident

that

led
    to

his

injury.

[7]

The
respondent sought
    accident benefits from his insurer,

the

appellant, which

were denied

on

the

basis

that

the

incident

did

not

meet

the

definition

of

accident

as

found
    in

the

SABS
.

Decision of the Application Judge

[8]

The

application judge found
    that that the

temporary parking

of

the

motorcycle

that

evening

on

the

walkway

constituted

an

ordinary

or well-known

use

of

the

vehicle. He further found, at para. 22, that
    "the

temporary

parking

of

the

motorcycle in

the

circumstances

that

evening

was

the
    dominant

feature in

the

incident

and

not

simply ancillary to

it.

[9]

Based on these findings, the application judge concluded that the
    incident satisfied the test for an accident under the
SABS
as
    articulated by the Supreme Court of Canada in
Amos v. Insurance Corp. of
    British Columbia
, [1995] 3 S.C.R. 405, and modified by the 1996
SABS
amendments and this courts decisions in
Greenhalgh v. ING Halifax
    Insurance Company

(2004), 72 O.R. (3d) 338 (C.A.), leave to appeal
    refused (2004), 338 N.R. 398 (note) and
Martin v. 2064324 Ontario Inc
.
(Freeze Night Club)
,

2013 ONCA 19, 113 O.R. (3d) 561, leave to
    appeal refused (2013), 466 N.R. 386 (note).

[10]

As
    discussed below, there are two parts to this test: a purpose test and a
    causation test. The appellant does not appeal the application judges finding
    that the causation test is satisfied. This appeal is limited to its submission
    that the application judge erred in concluding that the purpose test is met in
    the circumstances.

Analysis

[11]

The
    term accident is defined in s. 3(1) of the
SABS
as follows:

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;

[12]

The
    seminal case on the definition of accident is
Amos
. In that case, the
    appellant was attacked by a gang while driving and was seriously injured when
    shot. At issue was whether the appellant was eligible for benefits under the British
    Columbia regulation, which provided for the payment of benefits in respect of
    death or injury caused by an accident that arises out of the ownership, use or
    operation of a vehicle.

[13]

In
Amos
the Supreme Court articulated, at para. 17, the following
    two-part test in interpreting the section in issue:

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 in original.]

[14]

As
    noted above, as a consequence of amendments to the
SABS
, the causation
    test was modified by this court in
Greenhalgh
and
Martin
. Pursuant
    to this modified causation test, the insured must first establish that the use
    or operation of an automobile was the cause of the injuries. If that is
    established, the insured must then satisfy the court there was no intervening
    act(s) that resulted in the injuries that cannot be said to be part of the
    course of the ordinary course of things. The question is whether it can be
    said that the use or operation of the vehicle was a direct cause of the
    injuries:
Greenhalgh
, at paras. 36 and 38;
Martin
, at para.
    37.

[15]

The
Amos
test was considered by the Supreme Court in
Citadel General
    Assurance Co. v. Vytlingam
, 2007 SCC 46, [2007] 3 S.C.R. 373. In that
    case, the insureds were driving on a highway when their vehicle was struck by a
    large boulder dropped from an overpass. The insureds received no-fault benefits
    and also sought to recover damages from their insurer pursuant to the
    inadequately insured motorist coverage found in s. 3 of the Ontario Policy
    Change Form 44R. Under this endorsement, an insurer is obliged to 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 toan insured person arising directly or indirectly from the use or
    operation of an automobile.

[16]

In
Citadel
,
the court found that the relaxed causation test in
Amos
was inapplicable because the claim was for indemnification and
Amos
involved a claim for no-fault benefits. In the course of his analysis, Binnie
    J., writing for the court, provided guidance with respect to the scope of the
    purpose test, at para. 19:

Secondly, and in any event, the appellant insurers argument
    overstates the scope of the

Amos
purpose test.  The
    ordinary and well-known activities to which automobiles are put limits
    coverage to motor vehicles being used as motor vehicles, and would exclude use
    of a car as a diving platform (as above) or retiring a disabled truck to a barn
    to store dynamite (which explodes), or negligently using the truck as a
    permanent prop to shore up a drive shed (which collapses, injuring
    someone).  In none of these cases could it be said that the tortfeasor was
    at fault as a motorist.  In none of these cases could it be said that the
    motor vehicle was being used as a motor vehicle.  That is the sort of
    aberrant situation that the
Amos
purpose test excludes, and nothing
    more.  Here, as in
Amos
, it is the causation test that did the
    work, not the purpose test.

[17]

Does
    parking a vehicle constitute the type of aberrant use contemplated by the
    Supreme Court in
Citadel
? In my view, it does not. The examples cited
    by Binnie J. were limited to circumstances in which a vehicle is not being used
    as a vehicle but for some other purpose. Parking a vehicle is not aberrant to
    its use as a vehicle. A vehicle is designed to be parked. Indeed, it is safe to
    say that most vehicles are parked the most of the time. I would conclude,
    therefore, that parking a vehicle is an ordinary and well-known activity to
    which vehicles are put.

[18]

The
    appellant argues that the application judge made a series of errors in his
    analysis of the purpose test. I deal with each of these arguments in turn
    below. In my view, they do not change the result.

[19]

The
    first and primary argument advanced by the appellant is that the application
    judge erred in failing to conclude that there must be an active use of the
    vehicle to meet the purpose test. It argues that the motorcycle in this case
    was no longer in use and had essentially been abandoned. Thus, the motorcycle
    was nothing more than the venue for the incident, in the same way a tree trunk
    would be if someone tripped over it.

[20]

The
    appellant relies on
Martin
in support of this venue argument. It also
    cites
Dominion of Canada General Insurance Company v. Prest
, 2013 ONSC
    92, [2013] I.L.R. I-5385, for the proposition that a parked car is no longer in
    use.

[21]

This
    argument is misconceived. There is no active use component in the purpose test.
    The sole question for determination under that test is whether the incident in
    issue resulted from the ordinary and well-known activities to which
    automobiles are put. While the active use of an automobile (e.g. driving)
    would qualify under this test, there is no requirement that the vehicle be in
    active use.

[22]

In
    contrast, under the causation test, the use to which a vehicle is being put is
    an important component of the analysis. In
Martin
,

the
    causation test was in issue, not the purpose test. In that case, the insured
    sought
SABS
benefits after being assaulted by two assailants in a parking
    lot and forced into the trunk of his car. This court held that the motion judge
    erred in failing to consider all of the elements of the modified causation
    test. Justice Cronk, writing for the court, expressed reservation as to whether
    the first branch of the modified causation test had been met, noting that the
    vehicle was nothing more than the venue where many of the assaults occurred, at
    para. 38. Thus, as submitted by the respondent, venue is a counterpoint to
    causation and has nothing to do with the purpose test.

[23]

The
    appellants reliance on
Prest
is also misplaced.
Prest

was
    a very brief endorsement in circumstances in which the insured parked his car
    in a parking garage to wash it and then tripped over a concrete curb sticking
    out from the wall, suffering an injury. The insured stated that his right hand
    was touching the car when he tripped. The court concluded that neither the
    purpose test nor the causation test was satisfied.

[24]

The
    court asked the correct question: whether the incident arose from the ordinary
    and well-known activities to which automobiles are put. However, at para. 8, its
    one paragraph analyzing the purpose test, the court stated:

In my view, on the facts of this
    matter, it does not.  At the time of the incident the vehicle was being
    neither used nor operated.  To the contrary, the vehicle was parked in its
    regular parking spot for purposes of washing the car.  A parking spot at
    ones residence is typically where a car is put when there is no intent to use
    it.

[25]

There
    is no reference in this analysis to the guidance from the Supreme Court in
Citadel
.
    Moreover, the application judge wrongly equated the active use of a vehicle
    with the ordinary and well-known activities to which vehicles are put. Consequently,
    there is no consideration of whether the purpose test could be satisfied if a
    vehicle is parked and not in active use. Given these weaknesses in the courts
    analysis, this case is of no assistance in determining whether the purpose test
    has been satisfied in the case at bar.

[26]

Second,
    the appellant submits that the application judge erred in finding that the
    motorcycle was parked temporarily on the walkway when the appellant tripped.
    According to the appellant, there was no evidence to support this finding and
    the application judge also impermissibly imported a temporal element into the
    purpose test.

[27]

I
    disagree. The application judge did not err in finding, at para. 13, that there
    was no evidence that the motorcycle was inoperable or that it was being stored
    at the campsite for an extended period of time. To the contrary, the evidence
    established that the motorcycle arrived the same day as other campers and was
    parked at the campsite. It was reasonable to infer that the motorcycle would
    leave after the jamboree, if not be used before. I also do not read the
    application judges reasons as importing a temporal element into the purpose
    test. Rather, he was simply analyzing the facts in determining whether parking
    a motorcycle is an ordinary and well-known activity to which motorcycles are
    put.

[28]

Third,
    I accept the appellants submission that the application judge erred, at para.
    18 of his endorsement, when he concluded that the respondent had satisfied the
    purpose test that the use or operation of an automobile, i.e., the motorcycle,
    was involved in this incident. The purpose test is not designed to determine
    whether a vehicle is involved in an incident. However, when this statement is
    read in context, I am satisfied that the application judge understood the
    elements of the purpose test and that this misstatement did not affect his
    analysis.

[29]

Fourth,
    I also agree with the appellant that the application judge should not to have
    relied on the liability sections of the Ontario Automobile Policy (O.A.P. 1) in
    support of his analysis, at para. 17. Liability can be triggered by mere
    ownership of a vehicle so the analogy to those provisions was not apt. Again,
    however, I am not satisfied that this affected the application judges analysis.

Disposition

[30]

For
    the foregoing reasons, I would dismiss the appeal. The respondent, as the
    successful party, is entitled to his costs of the appeal, which I would fix at
    $15,000, inclusive of all fees, disbursements, and applicable taxes.

C.W.
    Hourigan J.A.

I
    agree Alexandra Hoy A.C.J.O.

I
    agree P. Lauwers J.A.

Released: March 24, 2016 AH


