Canada: Victim Of Vicious Assault Not Entitled To Accident Benefits Or Liability Coverages aka "My Right Foot"

Last Updated: January 25 2013
Article by Ralph D'Angelo

A recent decision of the Ontario Court of Appeal in Martin v. 2064324 Ontario Inc. (Freeze Night Club) 2013 ONCA 19 addressed the extent to which the plaintiff Paul Martin was entitled to statutory accident benefits and other liability coverages from his automobile insurer, Certas Direct Insurance Company. One night, while in the parking lot of his night club workplace, Martin was accosted by two men who viciously assaulted him. They pepper sprayed him, beat and kicked him, slammed his head onto the surface of his car and forced him into the trunk of his own car and drove to another parking lot where the assaults continued. They broke two of his fingers and left him on the ground. The thugs then got back into Martin's car and drove over his right foot. After pepper spraying Martin again, they fled the scene in Martin's vehicle. Martin was able to crawl his way to his abandoned car and drive himself to a nearby hotel where he sought help.

Martin sustained a variety of injuries as a result of this incident. He claimed accident benefits as well as uninsured / unidentified / underinsured motorist coverage from his automobile insurer, Certas. All of these claims were denied by the insurer. Certas brought a summary judgment motion to have all of the claims dismissed. The motions judge dismissed the insurer's motion and permitted all of the claims to proceed to trial. Certas appealed.

In a unanimous decision authored by Madam Justice Cronk, Certas' appeal was allowed and all claims were dismissed against the insurer save and except any claims involving injuries to Martin's right foot.  The Court was required to address two issues: (1) whether Martin met the definition of "accident" for entitlement to accident benefits ("an incident in which the use or operation of an automobile directly causes an impairment") and (2) whether Martin's injuries arose "directly or indirectly from the use or operation of [an] automobile" so as to trigger coverage under s. 239(1) of the Insurance Act and, therefore, entitlement to uninsured / unidentified / underinsured motorist coverage.

Accident Benefits Entitlement

Madam Justice Cronk reviewed the judicial interpretation history of the definition of "accident" contained in the current accident benefits coverage. She noted that the Court of Appeal in the Chisholm and Greenhalgh cases had developed a modified causation test which required the Court to answer two questions: 

  1. Was the use or operation of the vehicle a cause of the injury?
  2. If so, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In this sense, can it be said that the use or operation of the vehicle was "direct cause" of the injuries?

Madam Justice Cronk expressed considerable reservations as to whether Martin met the first branch of this modified test. She felt that there was a strong argument to be made that Martin's car was nothing more than the venue where many of the assaults occurred. However, she felt that the motions judge definitely failed to apply the second branch of the modified test i.e. the use or operation of the automobile must have directly caused the injuries. On this point, Madam Justice Cronk felt that the assaults visited upon Martin constituted intervening acts that cannot reasonably be said to be part of the "ordinary course of things" associated with the use or operation of Martin's automobile. The only exception to this was Martin's injury to his right foot – the direct cause of that injury was the operation of the car itself.

Madam Justice Cronk did leave the door open for Certas, however, even in relation to the foot injury. She said:

[60] On this record, it is unclear whether the mishap with Mr. Martin's foot was inadvertent or deliberate. If deliberate, it may be open to Certas to argue that this injury also constituted an intervening, intentional tort that falls outside the reach of the "ordinary course of things" associated with the use or operation of a vehicle.  It may also be open to Certas to contend that the renewed theft of Mr. Martin's vehicle in the second parking lot was itself an intervening event that broke the chain of causation between the use or operation of the vehicle and the foot injury.

[61] There is, therefore, at the very least, a genuine issue requiring a trial to determine whether the injury to Mr. Martin's right foot was sustained in an "accident", in the sense contemplated by s. 2(1) of the 1996 Schedule. In respect of that injury and the SABs associated with it, I conclude that Certas is not entitled to summary judgment.

Martin attempted to argue that, once one injury qualified for accident benefits entitlement, then all injuries passed through the "SABS door". Madam Justice Cronk rejected this argument and noted that the SABS definition of "accident" refers to "an impairment". Accordingly, only the impairments which meet the SABS causation test qualify for accident benefits coverage.

Section 239(1) Claims

With respect to the liability coverages, Madam Justice Cronk reviewed the Supreme Court of Canada's decisions in Vytlingam and Herbison  and concluded that the appropriate test involves looking at whether there is "an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made".

She concluded that, but for the right foot injury, Martin's injuries arose from the assaults inflicted upon him by the assailants. The fact that some of the assaults occurred in or near his vehicle did not satisfy the causal connection envisaged by the Supreme Court's test. Accordingly, Martin was not entitled to uninsured / unidentified / underinsured motorist coverage – except for his right foot injury.

Implications of Decision

We would expect that the factual circumstances which arose in this case are rare. However, one can see how such complicated facts pose a challenge for claims handlers and courts alike. Adjusters will be required to apply the causation test to each injury sustained by a claimant. In this case, potentially, Martin will only be entitled to accident benefits in relation to the injuries and disability arising from his right foot being run over. As a practical matter, how is the insurer to apply this ruling over the life time of the claim file? Martin likely suffered a myriad of physical and psychological injuries as a result of the incident as a whole. His treatment plans will cover all of these injuries. Presumably, treatment providers can only bill the insurer for treatment related to the right foot injury. What if Martin cannot afford treatment for his other injuries and this lack of treatment impacts his recovery in relation to his right foot injury? What about the psychological injuries? How can a treating psychologist parse out the psychological injuries related to Martin's right foot injury from those related to the incident generally? What does the insurer pay for?

These challenges will also be faced by the insurer when addressing Martin's tort compensation payable pursuant to the uninsured / unidentified / underinsured motorist coverage.

We are also puzzled by the Court's decision in relation to whether a deliberate act / intentional tort involving the use or operation of an automobile affects the availability of automobile insurance coverage to the innocent victims of such incidents. The Court seemed to suggest that, if the insurer can prove this, accident benefits coverage could be denied to Martin. This places the victims and insurers in the difficult position of having to prove the intentions of a perpetrator who may not even be identified let alone be willing to testify as to what transpired on the occasion in question. Should the intentions of the criminal determine the extent of insurance coverage available to their victim?

This decision provides a good summary of the applicable principles for deciding whether the SABS definition of "accident" has been met or whether liability coverage is triggered. However, one can sense that the court struggled with the application of those principles in the context of a complicated factual matrix. At the end of the day, the insurer was left with more uncertainty than certainty, even though it "won" the appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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