Canada: Assault Is No Accident: Court Drives Towards Clarity For Auto Insurers

Last Updated: February 25 2013
Article by Kyle Magee and Alison McLean


The Ontario Court of Appeal’s recent decision in Martin v. 2064324 Ontario Inc.1 will be of interest to all Ontario automobile insurers and reflects the judicial trend of interpreting coverage in accordance with the reasonable expectations of both the insured and the insurer. Martin clarifies how to determine whether injuries are covered by Ontario’s Statutory Accident Benefits (SABs) regime or the indemnification provisions of the Insurance Act.

The Facts

In the early hours of April 23, 2005, Paul Martin had just finished work at a Toronto nightclub. As he was loading his car in the parking lot, a man approached and asked him for a cigarette. When Martin replied that he did not have cigarettes, he was pushed against his own vehicle. A second man appeared out of the darkness. The assailants sprayed Martin with pepper-spray, searched him and then forced him into the trunk of the car, injuring his head in the process.

Unfortunately, the assailants were not accomplished motorists. Discovering the car’s manual transmission, they took Martin out of the trunk and forced him to change gears while hitting him about the head. The party proceeded to another parking lot where Martin was taken out of the car and beaten. For good measure, one of the men broke Martin’s fingers with a blunt object.

The assailants then attempted to flee in the car. In doing so, they drove over Martin’s right foot before stalling the vehicle. The assailants gave Martin one last blast of pepper-spray and ran away, leaving Martin bruised and broken.

Martin submitted claims to his auto insurer, Certas (the insurer), for SABs benefits and indemnity under the unidentified, uninsured and underinsured coverage provisions of his liability insurance policy. When the claims were denied, Martin commenced an action against the night club, the assailants and the insurer.

The Summary Judgment Motion

The insurer moved for summary judgment, arguing that (1) Martin was not involved in an “accident” as defined in the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996 (the 1996 Schedule) which would entitle him to SABs and (2) that Martin’s injuries were not caused, directly or indirectly, by the use or operation of an automobile within the meaning of the Insurance Act (the Act) which would trigger the indemnity provisions of the policy.2

The motion judge denied the motion and declared that Martin was entitled to SABs as his injuries flowed from an “accident” as defined in the 1996 Schedule.3 The insurer appealed.

The Appeal

The 1996 Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.4 On appeal, the insurer argued that Martin’s injuries were caused by the assailants, not the use or operation of the vehicle, and therefore did not fall within the definition.

In reply, Martin argued that since his vehicle was used during the assaults, including as the venue for some of the assaults, his injuries arose out of the “use or operation” of a motor vehicle and thus fell within the definition.

The Court of Appeal noted that the two part Amos5 test is applicable in determining whether the injuries arise out of the ownership, use or operation of an automobile. The test requires answering:

(1) whether the accident resulted from the ordinary and well-known activities to which automobiles are put (the purpose branch); and

(2) whether there was a causal relationship between the injuries and the ownership, use or operation of the vehicle or whether the connection between the injuries and the ownership, use or operation of the vehicle was merely incidental (the causation branch)?

The motions judge had held that the purpose branch of the Amos test was satisfied and the insurer did not challenge this finding on appeal. The issue for the Court of Appeal was, therefore, whether the causation branch entitled Martin to coverage.

The court held, with one exception, that because the actions of the assailants directly caused Martin’s injuries (as opposed to the use or operation of the vehicle) Martin was not injured as a result of an “accident” as defined. In particular, the court held, as in its recent decision in Downer,6 that the plaintiff had to do more than simply allege that the automobile was the location of the injury; instead, a plaintiff must show that the use or operation of the automobile directly caused the injury to meet the definition of an “accident”.7

In Martin, the court held that the assaults in the nightclub parking lot were distinct acts independent from the use or operation of the vehicle.8 Similarly, the head injury suffered when Martin was forced into the trunk was not in the “ordinary course” of using the vehicle. Although the injury involved part of the car (i.e., the trunk) the use was “merely ancillary” to the assault (i.e., forcing him into the trunk) which was the direct cause of the injury.9 Likewise, the series of assaults in the second parking lot had nothing to do with the use or operation of the vehicle.

Further, the court held that hitting Martin in the head while forcing him to change gears was not a normal risk of use or operation of a vehicle.10 For this reason, the use or operation of the vehicle was not, as a matter of law, a direct cause of the majority of Martin’s injuries.11

However, the court held that a trial was required to decide whether the injury sustained to Martin’s right foot when the assailants ran him over was an “accident.” Unlike the other injuries, the operation of the car was the direct cause of the injury to Martin’s foot.12

Once through the SABs door…

Martin argued that if his foot injury was captured by the definition of an “accident” then he was entitled to SABs for all of his injuries. The Court of Appeal rejected this argument, finding that on a plain reading of the 1996 Schedule, only those injuries which are directly caused by the use or operation of an automobile are captured in the definition of “accident.”13


Section 239(1) of the Act indemnifies an owner from loss or damage arising from the ownership or “directly or indirectly” from the use or operation of the automobile.

The leading decisions of the Supreme Court14 require an unbroken chain of causation linking the conduct of the motorist, as a motorist, to the injuries before the indemnification provisions are applicable. In Martin, aside from the injury to his right foot, the assaults were not inflicted as a result of the conduct of Martin’s assailants as motorists. The mere fact that the car was nearby when Martin was assaulted or that some assaults took place in the vehicle did not make the vehicle a direct or indirect cause of his injuries and entitle him to indemnification.15

Gowlings’ Analysis

Martin should provide comfort to Ontario automobile insurers that the court is unwilling to stretch to find coverage for injuries that are only tangentially associated with the use of an automobile. Moreover, the decision demonstrates that the court is continuing to interpret insurance policies in a way that gives effect to reasonable expectations of both the insured and the insurer.

The Martin decision follows the trend in Ontario case law towards a narrow interpretation of the Statutory Accident Benefits regulations and the indemnification provisions of the Act. Successive legislatures have narrowed the application of the Statutory Accident Benefits schedule and the Martin decision gives effect to the narrower language. 

Further, the court has reaffirmed the requirement that an insured must show a clear and unbroken causal link between the use of the vehicle and the injuries. It is not enough to show that the vehicle was merely the venue of an injury; instead the use or operation of the vehicle must clearly be a direct or indirect cause of the injury.

Finally, the Martin decision clarifies that even if one injury in a sequence of events can be directly attributed to the use or operation of a vehicle and qualify as an “accident,” it does not follow that a claimant is entitled to SABs coverage for all injuries suffered. Interestingly, the decision suggests that the court will analyse the cause of each injury individually in determining whether there is coverage. This approach, again, considerably limits an insurer’s exposure where use of the vehicle may be the cause of some, but not all, of the insured’s injuries. Further, it suggests that each injury should be analysed as an individual transaction when determining if there is coverage under the SABs regulation.


1  2013 ONCA 19 [Martin].

Martin, para. 13.

3 Martin, para. 15.

4 Martin, para. 17 (emphasis added).

5 Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405.

6 Martin, para. 48.

7 Martin para 45, citing Downer, at para. 39.

8 Martin, para. 52 – 53.

9 Martin, para. 54.

10 Martin, para. 55 - 57.

11 Martin, para. 57.

12 Martin, para. 59 -61.

13 Martin, para. 63.

14 Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46  and Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47.

15 Martin, para. 71 – 75.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions