Canada: Court Of Appeal Takes Expansive Approach To Definition Of "Accident" In Caughy Decision

The Ontario Court of Appeal's decision in Caughy v. Economical Mutual Insurance Company 2016 ONCA 226 seems to have expanded the definition of "accident," for the purposes of statutory accident benefits, to include a trip and fall incident.

Recall the definition of "accident" in the Statutory Acident Benefits Schedule- Effective September 1, 2010 ("Schedule") is "an incident in which the use or operation directly causes an impairment or directly causes damage to prescription eyeware, denture, hear aid, prosthesis or other medical or dental device.

The unfortunate Mr. Caughy suffered what turned out to be devastating spinal cord injuries as a result of what could have been a rather innocuous event: while playing tag with his children at a campground, he tripped and fell on a motorcycle parked near his trailer. Mr. Caughy had originally parked his trailer close to another camper, leaving a sort of walkway between the trailers. Unbeknownst to him, the motorcyclist had parked the motorcycle in the darkened walkway during the evening hours. Mr. Caughy (who had been drinking a "considerable" amount of alcohol) fell head first into the trailer, suffering serious spinal cord injury. One wonders if the resulting decisions illustrate the adage that hard cases make bad law.

At the lower court stage, the presiding judge, Justice Nightingale found this scenario constituted an "accident." Justice Nightingale noted that the Supreme Court of Canada, in the 1995 decision Amos vs ICBC, under differently worded legislation, established a two-fold test:

  1. Did the accident result from ordinary and well known uses to which automobiles are put (the "Purpose Test")
  2. and, was the relationship casual or merely fortuitous or incidental? (the "Causation Test")

Justice Nightingale then noted that the Ontario legislation was amended in 1996 by eliminating the phrase "directly or indirectly" and limiting the definition to impairments caused "directly" by use or operation of a vehicle. In various Ontario Court of Appeal decisions (subsequent to Amos), such as Greenhalgh vs ING Halifax 2004 CanLII 21045 (ON CA), the test was refined such that the second branch, the Causation Test, requires consideration of whether, even if the "use or operation" of the vehicle was "a cause" of the injury, was there an intervening act which cannot be said to be "part of the ordinary course of things". Another consideration is that of dominant feature.

Justice Nightingale reasoned that the "Purpose Test" was met because the parking of the motorcycle (albeit in a walkway intended for pedestrians) was an ordinary use to which vehicles are put. It appeared the motorcycle had been parked there temporarily. It had not been abandoned nor was there any evidence it was inoperable. Most vehicles are parked most of the time.

Justice Nightingale gave more attention to the Causation Test. He accepted that the "direct" causation requirement is more stringent than that under the old "direct or indirect" legislation. He observed the Court of Appeal's reasoning in cases such as Greenhalgh that "it is not enough that an automobile was somehow involved in the incident giving rise to the injury" and that "it is not enough to show that the automobile was the mere location of an injury inflicted by a tortfeasor." After articulating this, Justice Nightingale reasoned the Causation Test was met because the parking of the motorcycle was the dominant feature of the incident and it was not ancillary. The fact that Mr. Caughy had been drinking alcohol and running in a dark area were not "intervening events" sufficient to break the chain of causation.

On appeal, Economical restricted its argument to the Purpose Test. It did not challenge the finding that the Causation Test has been met. Economical's main argument was that the Purpose Test requires that there be some active use. Economical argued that since the motorcycle was parked and its operator apparently not close by, it had been abandoned. An analogy to a tree trunk was drawn. The Court rejected this argument, stating first of all, there was no evidence the motorcycle was "abandoned" (as opposed to being parked for a few hours) and secondly, there is no active use component in the Purpose Test. Rather, the issue is whether the incident arose from the "ordinary and well-known activities" to which vehicles are put. Parking a vehicle is a well-known activity associated with a vehicle. The Court noted that "use" is an important part of the analysis under the Causation Test- but again, the appeal was not framed in relation to that.

Read in a superficial way, the Court of Appeal's decision suggests that the Purpose Test is just a gate keeping device to rule out "aberrant" uses of a vehicle such as using a vehicle as a diving platform or to prop up a shed (as mentioned in Vytlingam vs Citadel, a Supreme Court decision referred to by the Court of Appeal). On that point, it is difficult to see anyone disagreeing with the Court's observation that parking a vehicle is an ordinary activity in the sense that any vehicle must be parked at some point. But if the Purpose Test is just a simple screen to rule out "aberrant uses" then it doesn't serve much purpose, as almost any incident involving a vehicle will pass the test other than very obvious aberrant uses (such as using a car as a diving platform, although some Arbitrators may beg to differ). Additionally, the argument (although unsuccessful in this case) that a vehicle is parked is evidence of "lack of use" and "lack of operation" has some strength.

The Court of Appeal may cause confusion for those trying to understand the boundary between the Purpose Test and the Causation Test. Moreover, whether one is considering the Purpose Test or the Causation Test, the Court of Appeal's decision represents a departure from previous decisions, which do, in fact, at least imply an "active use" element in the overall analysis. Not least of these is the earlier decision of Justice Laskin of the Court of Appeal in Chisholm v. Liberty Mutual Group [2002] O.J. No. 3135. That case involved a motorist who was seriously injured in a drive by shooting. Justice Laskin agreed with the lower court judge that the direct cause of his injuries was gunfire, not use or operation of a vehicle.

In Chisholm, Plaintiff counsel argued that the relevant consideration was "but for," since "but for" being in his car, Mr. Chisholm would not have been shot. But Justice Laskin noted that "but for" is merely an exclusionary device. If the "but for" test is not met, then the injury would have happened regardless and causation is not established. If the "but for" test is met, then the use of the vehicle is "a factual cause" of the injury. But legally, direct causation requires more than that. Justice Laskin used the analogy of a row of dominoes in relation to direct causation: "one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act." Justice Laskin also approved a definition from Black's Law Dictionary as follows: "the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source." Accordingly, Mr. Chisholm's use of a vehicle was "a" factual cause of his injury, but it was not the "direct cause" from a legal standpoint. By analogy, the motorcycle over which Mr. Caughy tripped was "a" cause of his injury, but it is questionable whether it should be a "direct cause" to the requisite legal degree. If a vehicle is parked for several hours, such that it basically constitutes an obstacle to pedestrians, can it really be said to be an "active and efficient cause" that "sets in motion a train of events?"

Ultimately, one passage from Chisholm has particular resonance in the Caughy decision. "The 1996 Schedule reflects a government policy decision. The government decided to circumscribe the insurance industry's liability to pay no-fault benefits by holding it responsible only for injuries directly caused by the use or operation of a car. Like almost any statutory standard, the direct causation requirement will, at the margins, produce hard cases, perhaps even sympathetic cases and seemingly arbitrary results."

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
Samis + Company
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Samis + Company
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