1. Pickering Square Inc. v.
Trillium College Inc., 2016 ONCA 179 (Strathy
C.J.O., LaForme and Huscroft JJ.A.), March 3, 2016
2. Neuberger v.
York, 2016 ONCA 191 (Gillese, van Rensburg and
Miller JJ.A.), March 8, 2016
3. Spence v. BMO Trust
Company, 2016 ONCA 196 (Cronk, Lauwers and van
Rensburg JJ.A.), March 8, 2016
4. Clarke v.
Faust, 2016 ONCA 223 (Feldman, Juriansz and Brown
JJ.A.), March 22, 2016
5. Economical Mutual Insurance
Company v. Caughy, 2016 ONCA 226 (Hoy A.C.J.O.,
Lauwers and Hourigan, JJ.A.), March 24, 2016
1. Pickering Square Inc. v. Trillium College
Inc., 2016 ONCA 179 (Strathy C.J.O., LaForme and
Huscroft JJ.A.), March 3, 2016
When is a claim discovered for limitations purposes in the
case of a continuing breach of contract? In this decision, arising
from a dispute between a commercial landlord and tenant, the Court
of Appeal considered this question.
Pickering Square Inc. entered into an agreement with Trillium
College Inc. to lease commercial space in a shopping centre for a
five-year term, beginning on June 1, 2006. Pursuant to their
agreement, Trillium covenanted not only to pay monthly rent but
also to operate a vocational college on the premises continually,
to maintain the premises throughout the term of the lease and to
restore the premises following its expiration.
After Trillium vacated the premises in December, 2007,
Pickering sued for rent arrears and for Trillium's failure to
conduct its business on the premises continually. The suit was
settled, with Trillium agreeing to resume occupation of the leased
premises by October 1, 2008. While Trillium paid rent for the
duration of the lease, it did not operate its business continuously
and failed to restore the premises when the lease ended on May 31,
Following the expiry of the lease, Pickering brought an action
against Trillium for damages arising from its failure to occupy the
premises and conduct its business continuously from October 1, 2008
to May 31, 2011, as well as its breach of its covenant to restore
the premises. Trillium responded with a motion for summary
judgment, arguing that Pickering's claim was brought outside
the two-year limitation period under section 4 of the
Limitations Act, 2002, S.O. 2002, chapter 24, Schedule
The motion judge held that Trillium's breach of the
covenant to occupy the premises and operate its business
continuously was of a continuing nature, so that each day of the
breach gave rise to a fresh cause of action. Accordingly, only a
portion of Pickering's claim against Trillium for breach of its
covenant - that concerning the breach that occurred more than two
years prior to commencement of the action - was barred by the
Limitations Act. The motion judge also held that
Pickering's claim for damages for breach of the covenant to
restore the premises was not time-barred.
Pickering appealed the judgment but did not pursue its appeal.
The Court of Appeal therefore heard only Trillium's
cross-appeal of the partial summary judgment.
Trillium submitted that the motion judge erred by finding a
continuing breach of the agreement giving rise to a new cause of
action and a new limitation period each day that it failed to carry
on business at the leased premises. It argued that its breach of
the covenant to operate its business continuously was complete on
October 1, 2008, the first day that it failed to resume occupation
of the leased premises and operate its business, and that each
subsequent day that it failed to operate its business was not a
separate breach but rather an instance of additional damages. A
continuing breach of contract requires a succession or repetition
of separate acts, while this was a case of a single act with
continuing consequences. Accordingly, in the appellant's view,
Pickering's claim was statute-barred because it was not brought
within two years of the October 1, 2008 breach.
Writing for the Court, Huscroft J.A. rejected this submission,
noting that Trillium did not breach a covenant to perform a single
obligation due at a specific time. Nor did it fail to fulfill an
obligation which it agreed to perform periodically. Rather, it
breached a continuing obligation under the contract, a covenant to
operate its business continuously – "at all times"
- for the duration of the lease.
Justice Huscroft noted that Trillium's argument that
breach of its covenant to operate its business continuously
established a complete cause of action as of October 1, 2008,
overlooked the consequences of its breach. In the face of
Trillium's breach of its covenants under the contract,
Pickering could either cancel the lease or affirm it and require
performance. It chose the latter and, as a result, the parties were
required to perform their obligations under it as they became
Huscroft J.A. pointed out that Trillium could have resumed
performance of its obligations under the lease at any time prior to
the end of the term by carrying on its business at the leased
premises. It did not do so. The motion judge therefore properly
concluded that a fresh cause of action accrued every day that the
breach continued and that Trillium failed to carry on its business
in accordance with the covenant. The limitation period applied on a
"rolling basis", with a fresh cause of action accruing
each day the breach continued with the limitation period for that
day's claim expiring two years from that date. Accordingly,
Picking was entitled to claim damages for breach of the covenant
for the period going back two years from the commencement of its
action on February 16, 2012: the period that ran from February 16,
2010, until the lease expired on May 31, 2011.
Trillium also argued that Pickering's restoration claim
was related to its obligations during the lease rather than upon
its expiry, and was therefore discoverable as of October 1, 2008,
and barred by the two-year limitation period under section 4 of the
. Huscroft J.A. rejected this submission,
holding that the motion judge was entitled to find that the
respondent was claiming only for the breach of the covenant to
repair and restore the premises at the end of the lease.
Accordingly, the limitation period for this claim began to run on
May 31, 2011. Since the action was commenced within two years of
this date, the claim was not statute-barred.
2. Neuberger v. York, 2016 ONCA 191
(Gillese, van Rensburg and Miller JJ.A.), March 8, 2016
When Chaim Neuberger died in September, 2012, at the age of
eighty-six, he left a real estate empire worth over $100 million.
He also left behind two children and several grandchildren who
would become embroiled in litigation over his estate.
Chaim's long-standing intention was to leave his estate
equally to his two daughters, Edie and Myra. The appellant, Edie,
has five adult children, one of whom is the appellant, Adam
Jesin-Neuberger. Myra has three adult children, referred to by the
Court as the "York Parties".
Chaim executed primary and secondary wills in 2004 and in
2010, with Edie and Myra named in both as co-estate trustees. Both
sets of wills left Chaim's estate to Edie and Myra and their
children, but they differed in one important way, which allegedly
resulted in Myra's share exceeding Edie's by approximately
Edie took a number of steps in her capacity as co-estate
trustee under the 2010 wills and ultimately commenced legal
proceedings to challenge their validity on the basis that her
father did not have testamentary capacity when he executed them.
Adam, through separate legal representation, also sought to
challenge the validity of the 2010 wills.
The York Parties moved to dismiss both Edie's and
Adam's challenges to the wills on the basis that they were
barred by the equitable doctrines of estoppel by representation and
estoppel by convention.
The motion judge granted the motion to dismiss the will
challenges. She found that Adam was a "straw man" who had
no knowledge of the 2010 wills or the estate and came forward only
to support his mother's position in the litigation. She further
found that Edie was estopped from challenging the validity of the
2010 wills. Both Edie and Adam appealed.
As a preliminary matter, the Court of Appeal considered
whether there is an automatic right to seek proof in solemn form
pre-probate. Writing for the Court, Gillese J.A. held that there is
no such right. While Edie and Adam are "interested
persons" under Rule 75.06(1) of the Rules of Civil
Procedure, R.R.O. 1990, Regulation 194, and accordingly have
the right under Rules 75.01 and 75.06 to request formal proof of
the testamentary instrument, they do not have, as of right, the
ability to require that the testamentary instrument be proved in
solemn form. Read together, Rules 75.01 and 75.06 give the court
discretion whether to order that a testamentary instrument be
proved, as well as discretion over the manner in which the
instrument is proved. Moreover, in order to avoid needless
depletion of the estate, an interested party must meet a minimal
evidentiary threshold before a court should grant a request that a
testamentary instrument be proved.
Accordingly, an applicant or moving party under Rule 75.06
must adduce some evidence which, if accepted, would call into
question the validity of the testamentary instrument that is being
Edie asserted that the motion judge erred by conflating the
legal tests developed in relation to Rules 75.04 and 75.05 - which
apply to will challenges where probate has already issued - with
that to be applied under Rule 75.01, where probate has never been
granted. Gillese J.A. rejected this submission, agreeing with the
respondents that the only issue before the motion judge was whether
the doctrine of estoppel by representation and/or convention
applied to preclude the will challenges from proceeding.
Justice Gillese agreed with Edie, however, that the motion
judge erred in finding that they did, holding that the doctrines of
estoppel by representation and estoppel by convention do not bar a
challenge to the validity of a will. The motion judge erred in
finding a jurisprudential basis for the application of the doctrine
of estoppel to matters involving the validity of a will. Further,
the use of estoppel in such matters is "antithetical" to
the policy considerations governing probate.
Gillese J.A. noted that the court has a responsibility to
ensure that only wills that meet the hallmarks of validity are
probated. The court also has a duty to the testator who is no
longer able to protect his own interests, to those with a
legitimate interest in the estate and to the public at large. She
concluded that the court's ability to discharge these duties
would be jeopardized if the doctrine of estoppel was available to
prohibit a party from challenging the validity of a will.
Gillese J.A. agreed with Edie that the motion judge's
reliance on her "undue delay" in bringing her will
challenge less than two years after her father's death created
a precedent that could adversely affect the administration of
estates, forcing estate trustees with doubts about the validity of
a will to bring premature and poorly informed challenges. Further,
in light of Rule 75, which gives the court discretion to screen out
baseless claims for formal proof of testamentary instruments and,
for those with merit, to control the manner in which the instrument
is proved, Gillese J.A. found no basis to import the doctrine of
Turning to Adam's will challenges, Justice Gillese agreed
that the motion judge erred in barring him from seeking proof of
the 2010 wills in solemn form because he is a "straw man"
for his mother. There was no basis for this finding. Adam provided
evidence that he made an independent decision to challenge the 2010
wills, which was supported by Edie's evidence that she did not
want her children to get involved in the dispute. Both Adam's
and Edie's evidence held up on cross-examination. Gillese J.A.
held that the motion judge further erred in her factual findings in
relation to Adam's claim, finding it unclear how, in light of
the evidence, she could conclude that Adam had provided no
explanation for initiating his will challenges.
The appeal was allowed, and the will challenges permitted to
proceed on their merits.
3. Spence v. BMO Trust Company, 2016
ONCA 196 (Cronk, Lauwers and van Rensburg JJ.A.), March 8,
In this decision, the Court of Appeal considered its capacity
to interfere with an unambiguous and unequivocal residual bequest
in a will, where a child, disappointed by her exclusion from her
father's will, claimed that the bequest offended public
Eric Spence died in Ontario on January, 2013, at 71. He was
predeceased by his wife, Norma, and survived by two daughters from
a previous relationship, Donna and the respondent, Verolin.
Verolin lived with her father for many years after her
parents' separation. She asserted that they enjoyed a positive
relationship, however, their relationship changed dramatically for
the worse when she advised him in September, 2002, that she was
pregnant. Verolin claimed that Eric, who was black, was opposed to
the fact that the father of her child was white, and cut off
contact with her.
Verolin gave birth to her son, A.S, in April 2003. A.S. never
met his grandfather.
Eric made a will in 2010 in which he expressly excluded
Verolin from sharing in any part of his estate. Clause 5(h)
of the will stated:
I specifically bequeath nothing to
my daughter, [Verolin] as she has had no communication with me for
several years and has shown no interest in me as her father.
When Eric died, the appellant, BMO Trust Company, was issued a
Certificate of Appointment of Estate Trustee with a Will and began
to administer the estate. Verolin and A.S. did not challenge the
will or BMO Trust's appointment as estate trustee in the
probate proceeding, but applied to the Superior Court under Rule
75.06 of the Rules of Civil Procedure, R.R.O. 1990,
Regulation 194 and sections 58 and 60 of the Succession Law
Reform Act ("SLRA"), R.S.O. 1990, chapter
S,26, for: (i) a declaration that the will was void, in whole or in
part, because it was contrary to public policy; (ii) leave to
proceed with a dependant's relief application under the
SLRA; and (iii) directions from the court.
In support of the application, Verolin filed her own affidavit
and another sworn by her father's caregiver, Imogene Parchment.
Both affiants, neither of whom was cross-examined, alleged that
Eric's decision to exclude Verolin and A.S. from his will was
racially-motivated. Imogene supported Verolin's claim that her
father disinherited her on racial grounds, swearing that it was
"very clear" that the reason Eric excluded Verolin from
his will was "because he wanted to discriminate against
Verolin because the father of her son was a white man".
Based on the affidavit evidence, and contrary to the plain
language of clause 5(h) of her father's will, Verolin argued
that her disinheritance was motivated by racial discrimination on
Eric's part, and that the will was therefore void by reason of
public policy and ought to be set aside. The application judge
The Court of Appeal allowed BMO Trust's appeal from this
decision, holding that the extrinsic evidence was inadmissible and
that the application judge erred by improperly interfering with
Eric's testamentary freedom.
Writing for the Court, Cronk J.A. emphasized that, as a
general rule, extrinsic evidence of a testator's intentions is
not admissible when the testator's will is clear and
unambiguous on its face. In Rondel v. Robinson Estate,
2011 ONCA 493, leave to appeal to Supreme Court of Canada refused,
 S.C.C.A. No. 536, the Court recognized exceptions to this
rule where a will is ambiguous or equivocal. Eric's will,
however, was neither.
While public policy in Canada precludes discrimination on the
basis of race, as reflected in the Charter and provincial
human rights legislation, including Ontario's Human Rights
Code, Cronk J.A. cautioned against concluding that third-party
extrinsic evidence of a testator's alleged discriminatory
motive is admissible to challenge the validity of a will where the
testator's residual bequest to a private beneficiary is
absolute, unambiguous and unequivocal.
Justice Cronk reasoned that if Rondel held that
extrinsic evidence was not admissible to establish what a testator
intended, such evidence was less admissible still to determine why
a testator made a particular bequest. The extrinsic evidence did
not serve to establish Eric's motive for the residual bequest
in his will. That was clearly disclosed at clause 5(h). The purpose
of the extrinsic evidence was, rather, to contradict the lawful
motive for the bequest, as set out by the plain language of the
will, and to substitute a different and allegedly unlawful motive.
In Cronk J.A.'s view, there was no basis in law for the
admission of wholly contradictory, extrinsic evidence of motive for
this purpose, and the courts "should be loath to sanction such
an indirect attack, which the deceased cannot challenge, on a
testator's expressed motive and testamentary
Cronk J.A. emphasized the deeply entrenched common law
principle that a testator is free to distribute his property as he
chooses, which was recognized by the Supreme Court in Tataryn
v. Tataryn Estate,  2 S.C.R. 807. She noted, however,
that notwithstanding the "robust nature" of the principle
of testamentary freedom, the courts have recognized that it is not
an absolute right. In addition to limits imposed by legislation,
the right to testamentary freedom may also be constrained by public
policy considerations. Canada Trust Co. v. Ontario (Human
Rights Commission) (1990), 74 O.R. (2d) 481, confirmed that
the courts will not hesitate to intervene where the implementation
of a testator's wishes collides with public policy. Eric's
will, however, contained no language suggesting racial
Justice Cronk concluded that applying the public policy
doctrine to void an unconditional and unequivocal testamentary
bequest in cases where a disappointed potential heir has been
disinherited would effect "a material and unwarranted
expansion" of this doctrine in estates law. "Absent valid
legislative provision to the contrary, or legally offensive
conditional terms in the will itself, the desire to guard against a
testator's unsavoury or distasteful testamentary dispositions
cannot be allowed to overtake testamentary freedom."
Cronk J.A. held that there was no basis for the public
policy-driven review undertaken by the application judge and that
she erred in superseding Eric's expression of his clear
intentions regarding the disposition of his property. The
application judge's decision implicitly endorsed a general
supervisory role for the courts in "policing a testator's
unqualified and legitimate choice of his heirs" on the ground
of enforcing the public policy against discrimination, a
proposition which, if accepted, would significantly undermine the
principle of testamentary freedom.
4. Clarke v. Faust, 2016 ONCA 223
(Feldman, Juriansz and Brown JJ.A.), March 22, 2016
The appellants, Andrew and Gavin Clarke, were injured in a
motor vehicle collision on April 7, 2006. They retained the
respondent, Joseph Faust, to represent them on their claims for
accident benefits and tort damages. Faust issued a statement of
claim in June, 2008, several weeks after the second anniversary of
the accident. Before the claim was filed, the appellants retained
new counsel who, upon receiving the file from the respondent, noted
that the statement of claim had not been issued within the two-year
limitation period. He advised his clients, however, that this was
not necessarily fatal to their claim due to the doctrine of
In correspondence dated July 2, 2008, the appellant's new
lawyer put the respondent on notice of the missed limitation
period, advising him to consult his liability insurer. Faust wrote
back shortly afterward, asserting that the limitation period had
not been missed because of the doctrine of discoverability.
The appellants' counsel died suddenly, and another lawyer
from his firm took over their file. He too was unconcerned about
the missed limitation period, believing that the doctrine of
discoverability would extend the period for the motor vehicle claim
as both plaintiffs had suffered soft tissue injuries and, until
they had obtained medical documentation, they could not have known
whether their injuries met the threshold of serious and permanent
impairment. The appellants' new lawyer thought that he had
convinced defence counsel that the doctrine of discoverability
would extend the limitation period, and so informed his clients. He
also relayed to them that the statement of defence filed in
February, 2009, did not plead the missed limitation period as a
The defendants amended their statement of defence shortly
thereafter, however, pleading the plaintiffs' missed limitation
The appellants commenced a professional negligence action
against the respondent in December, 2010. Faust moved for summary
judgment dismissing the claim, arguing, ironically, that the action
was statute-barred because it was commenced more than two years
after the appellants knew or ought to have known that they had a
cause of action against him.
The motion judge found that there was no genuine issue
requiring a trial with respect to whether the action was
statute-barred. She concluded that it was, and dismissed the
appellants' action against the respondent.
The respondent took the position on the motion that the
appellants should be presumed to have known of his negligence on
April 7, 2008, the two-year anniversary of the accident or, in the
alternative, on July 2, 2008, when their new lawyer wrote to advise
him that he had missed the limitation period to issue the
appellants' motor vehicle claim. The appellants meanwhile
asserted that they suffered no damage until March 18, 2009, when
the defendants in the motor vehicle claim first pleaded the defence
of the missed limitation period.
The motion judge rejected the appellants' position,
holding that under the Limitations Act, 2002, S.O. 2002,
chapter 24, Schedule B, a limitation period could begin to run
before the person with the claim sustained any damages. Noting that
the phrase "injury, loss or damage" in section 5(1) of
the statute is disjunctive, she concluded that the appellants were
"injured" by the respondent's failure to commence the
motor vehicle action within the two year limitation period, even
though they may not have suffered any "damage" from that
injury until the defendants in that action pleaded the limitation
Writing for the Court of Appeal, Juriansz J.A. found that the
motion judge erred in her interpretation of the statute, failing to
consider the requirement of section 5(1)(a)(iv) that a claimant
know that a proceeding would be an appropriate means to seek to
remedy the injury, loss or damage having regard to its nature. That
provision requires a person to believe that he has a legal claim
for damages before knowing that commencing a proceeding
would be an appropriate means to remedy the injury, loss or
Justice Juriansz noted that the appellants had been advised by
three different lawyers that the doctrine of discoverability
applied to their motor vehicle action. They had good reason to
believe that this was the case because the original statement of
defence did not plead the limitation defence. It was not until they
received the defendants' amended statement of defence on March
18, 2009, that they discovered that they had a claim against the
respondent. They had no reason to know that commencing a
professional negligence proceeding against the respondent was
appropriate before that date. Juriansz J.A. further found that a
reasonable person with the abilities and in the circumstances of
the appellants would not have known that it was appropriate to
commence a legal proceeding before the March 18, 2009 amendment of
the statement of defence in the motor vehicle action.
Accordingly, the statement of claim in the professional
negligence action, dated December 22, 2010, was filed well before
the expiry of the two-year limitation period.
Juriansz J.A. noted in obiter that it remained to be
determined whether the appellants' motor vehicle claim was
statute-barred, pointing out that if the doctrine of
discoverability permitted that claim to proceed, the professional
negligence action may be premature. He also suggested that the
appellants might have been able to establish that the respondent
was estopped from pleading a limitations defence in the
professional negligence action because they relied on his initial
position that he had not missed the limitation period in the motor
vehicle action. The appellants did not raise this issue,
Juriansz J.A. briefly considered and rejected the motion
judge's finding that the appellants had not pleaded
discoverability in their professional negligence claim, holding
that their statement of claim set out the material facts to support
the application of the doctrine.
5. Economical Mutual Insurance Company v.
Caughy, 2016 ONCA 226 (Hoy A.C.J.O., Lauwers and
Hourigan, JJ.A.), March 24, 2016
The respondent was seriously hurt when he tripped over a
motorcycle which was parked on a pedestrian walkway. In this
decision, the Court of Appeal considered whether he was injured in
an "accident" as defined in the Statutory Accident
Benefits Schedule ("SABS").
In August, 2012, Patrick Caughy and his wife and two daughters
camped at a country music festival in Bothwell, Ontario. He and
other campers parked their vehicles on a campsite, leaving a gap
for campers to use as a walkway. Additional campers arrived later
on two motorcycles which they parked on site. Initially, the
motorcycles did not block the walkway; however, after dark, and
without the respondent's knowledge, they were moved and parked
there. Later that night, the respondent was playing tag with his
daughter when he tripped over one of the parked motorcycles,
collided with his own truck, and fell to the ground. He sustained
serious spinal cord injuries as a result. Although he was
intoxicated at the time of the accident, Caughy claimed to recall
the incident that led to his injuries.
The respondent sought accident benefits from his insurer,
Economical Mutual Insurance Company, which were denied on the basis
that the incident did not meet the definition of
"accident" in section 3(1) of the Statutory Accident
Benefits Schedule—Effective September 1, 2010, O. Reg.
The application judge found that the temporary parking of the
motorcycle on the walkway constituted an ordinary or well-known use
of the vehicle and that it was the dominant feature of the
incident, not merely ancillary to it. He concluded that the
incident satisfied the test for an accident under the SABS
as set out by the Supreme Court of Canada in Amos v. Insurance
Corp. of British Columbia,  3 S.C.R. 405. The Court of
Appeal agreed, and dismissed the insurer's appeal.
The term "accident" is defined in section 3(1) of
the SABS as "an incident in which the use or operation of an
automobile directly causes an impairment [...]." In
Amos, the Supreme Court outlined a two-part - purpose and
causation - test for interpreting this provision:
1. Did the accident result from the
ordinary and well-known activities to which automobiles are
2. Is there some nexus or causal
relationship (not necessarily a direct or proximate causal
relationship) between the injuries and the ownership, use or
operation of the vehicle, or is the connection between the injuries
and the ownership, use or operation of the vehicle merely
incidental or fortuitous?
The Court of Appeal modified the causation portion of this
test 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 in Martin v. 2064324 Ontario Inc.
(Freeze Night Club), 2013 ONCA 19, leave to appeal refused
(2013), 466 N.R. 386 (note). Pursuant to this modified test, the
use or operation of the vehicle must be a "direct cause"
of the injuries. The insured must first establish that the use or
operation of an automobile was the cause of the injuries and, if
that is established, he must then satisfy the court that there was
no intervening act that resulted in the injuries that cannot be
said to be part of the "ordinary course of things".
The Supreme Court revisited its Amos test in
Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46,
refining the scope of the purpose half of the test such that the
"ordinary and well-known activities to which automobiles are
put" limits coverage to "motor vehicles being used as
motor vehicles" and excludes "aberrant" uses.
The insurer did not challenge the application judge's
finding that the causation test was satisfied, but argued that he
erred in concluding that the purpose test was met on the facts of
Writing for the Court of Appeal, Hourigan J.A. rejected this
submission, concluding that parking a vehicle does not constitute
the type of aberrant use contemplated by the Supreme Court in
Citadel. The examples cited in that case - the use of a
car as a diving platform, for storing dynamite, or as a prop to
shore up a drive shed - were limited to circumstances in which a
vehicle was 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 and most vehicles are parked the
majority of the time. Parking a vehicle is therefore an ordinary
and well-known activity to which vehicles are put, in accordance
with the purpose test.
The appellant claimed that the application judge made a series
of errors in his analysis of the purpose test. Hourigan J.A.
considered and rejected each of these submissions.
The insurer asserted 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 argued that because the motorcycle was
not in use, it was nothing more than the venue for the incident.
Justice Hourigan dismissed this claim, emphasizing that there is no
active use component to the purpose test: the sole question for
determination under the test is whether the incident resulted from
"the ordinary and well-known activities to which automobiles
are put". While the active use of the motorcycle would qualify
under the test, there is no requirement that it be in active
Hourigan J.A. also rejected the appellant's assertion that
the application judge erred in finding that the motorcycle was
parked temporarily on the walkway when the appellant tripped over
it. There was no evidence before the application judge that the
motorcycle was inoperable or that it was being stored at the
campsite for an extended period of time.
Justice Hourigan accepted the appellant's submission that
the application judge erred when he concluded that the respondent
had satisfied the purpose test because the use or operation of the
motorcycle was "involved in this incident", noting that
the purpose test is not concerned with whether a vehicle is
involved in an incident. He held, however, that when considering
the application judge's statement in context, it was clear that
he understood the elements of the purpose test and that this
misstatement did not affect his analysis.
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