Canada: Will Quebec's No Fault Be Deemed No Good?

Last Updated: September 6 2011
Article by Joëlle Boisvert

On May 19 2011, the Supreme Court of Canada granted leave of appeal in the matter of City of Westmount v. Rossy et al1. This much anticipated decision will clarify the boundaries of Quebec's No fault insurance regime and provide guidelines on how the law should address circumstances where the automobile insurance system is being used to remedy injuries related to circumstances that cannot be understood as conventional car accidents.

In this case a 100-year-old tree collapsed onto an automobile killing the 27 year old driver. The respondents, the parents and brothers of the victim, brought an action in negligence for $1.3 million against the applicant, the City of Westmount, claiming that the City had failed to maintain the tree, which it owned, and was therefore liable to pay damages. An expert report determined that the 80-foot-tall tree was 80 percent rotten at the time of its collapse. The City moved to dismiss the action on the grounds that because the damage had been caused by an automobile, compensation was therefore governed by the Automobile Insurance Act (the "Act").

On first instance the court emphasized that a broad and liberal interpretation of the Act is necessary to achieve its social and compensatory goals and thus found that the accident fell within the scope of the Act. In reversing this decision, the Quebec Court of Appeal held that since the tree's collapse was the sole cause of death, the mere fact that the victim had been in an automobile "was not a factor of the accident nor the damage resulting there from" and as such the Act did not apply.

What constitutes a car accident falling under the Quebec "No fault" regime?

The Supreme Court now has an opportunity to clarify the Act's interpretation. Under the Act, compensation is granted regardless of who is at fault: every person who suffers bodily injury in an accident is considered a victim and can receive compensation for their damages. Those damages must however be caused by an automobile, by the use thereof or by the load carried in or on an automobile. Interpreting the latter has been a challenge for the Courts in previous years.

The case of Westmount v. Rossy provides a striking example of the sometimes tragic intersection between the efficiency of no fault instruments and the desire to hold persons accountable for their actions. Canadian jurisprudence offers several clues as to how the Court will consider the presence of an automobile when establishing whether a no fault regime is applicable over that of a conventional negligence regime.

In Société de l'assurance automobile du Québec v. Benoit2 a man was injured by a ricocheting bullet fired by a police officer who was, at the time, in pursuit of a suspect. The Court of Appeal concluded that there was no causal link between the injury sustained by the victim and the use of the vehicle. The vehicle, in fact, was determined as merely representing the physical location of the incident without playing an active role in the injuries that were sustained by the victim.

Similarily, in Société de l'assurance automobile v. Restaurant McDonald3 the passenger of an automobile was seriously burned by beverages spilt by the vehicle's driver while the car was stationary at a drive-through service window. The Quebec Court of Appeal found no causal link between the injuries and the use of the vehicle. This rested on the court's qualification of the vehicle as the merely the location of the incident, a factor insufficient to trigger the application of Quebec's No fault insurance policy.

In Bernard vs Samson and Société de l'assurance automobile du Québec4, a woman was attacked by a neighbor's dog as she approached the front steps of her home. After fleeing into the safety of her car, she heard her right knee 'crack'. The Superior Court concluded that although she was partly inside the vehicle when the injury fully manifested, the damage had occurred outside the normal the usage of an automobile and did not qualify under the Act.

It would seem that the use of an automobile is necessary but not sufficient to trigger the application of the Act. In F.B. v Société de l'assurance automobile du Québec5, a man sustained an injury to his eye after he was hit by lightning while driving, and thus using, his truck. The court determined that because lightning can strike anywhere at any time, the usage of a vehicle itself did not play an active role in this occurrence.

Finally, in Basciano v Société de transport de Montréal (STM)6, a public transportation user was attacked by an STM employee with a belt normally employed to secure the man's wheelchair. The trial judge indicated that even a broad interpretation to the notion of "usage of a vehicle", would not permit the application of the Act.

A common feature in the courts' reasoning in the above cases is the active role that a vehicle must play when determining whether a Quebec no fault regime is available. Clearly, it is not sufficient that the automobile be the location of the incident, it also had to somewhat contribute to the damages.

However, the task of determining whether or not the no fault applies is not as easy as it seems, considering the fact that both the Superior Court and the Court of Appeal reviewed similar cases and arrived to different conclusions.

In the case which the Supreme Court of Canada has agreed to hear, did the automobile contribute to Mr Rossy's death, or was it simply the location of the incident, bearing no concrete impact to the aggravation of his fate? The latter was successfully argued by the Plaintiffs who convinced the Court of Appeal that the automobile did not contribute to the accident and was merely the physical location of the incident.

The subject of Quebec's No fault is catching everyone's attention, including that of Lloyd's of London, the City of Westmount's insurer, who wrote the following in a January 2011 press release:

"Lloyd's of London is of the view that the Court of Appeal failed to apply the proper causality test and that the Automobile Insurance Act must be given a wide and generous interpretation in order to ensure that victims of car accidents be compensated without having to hire lawyers to sue potentially insolvent wrongdoers."

The Supreme Court's clarification of what legally constitutes "a car accident" and what calls for the application of the Quebec No fault regime, could have wide consequences for civil responsibility and accountability when in the presence of an automobile, and this decision should be watched by insurances and public authorities.


1 2010 QCCA 2131

2 [1999] R.R.A. 15 (C.A.)

3 [1999] R.R.A. 243 (C.A.)

4 2006 QCCS 6483

5 AZ-04551601, 2004-05-10

6 2006 QCCQ 9809

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