Canada: Supreme Court Clarifies The Test For Use And Operation Of Motor Vehicles In The Third Party Context

In two unanimous decisions released October 19, 2007, the Supreme Court has reversed the majority position of the Ontario Court of Appeal in Herbison and Vytlingam and concluded that the use of the words "directly or indirectly" in section 239 (1) of the Insurance Act and the Family Endorsement OPCF 44R does not eliminate the requirement of an unbroken chain of causation. Recognizing that the legislation in question is automobile insurance, the Court emphasized that merely fortuitous or "but for" causation is not sufficient and there must be 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. In doing so, the court has endorsed a less technical and more common sense approach to this issue.


In Herbison v. Lumbermen’s Mutual Casualty Co., the Plaintiff and his nephew and the insured were deer hunting. As the insured drove his truck towards his assigned hunting station, with his headlights on, he saw what he assumed was a deer but was, in fact, the Plaintiff and his nephew. The insured exited the truck, removed his shotgun, fired and hit the Plaintiff, who was permanently disabled as a result of injury to his thigh. The headlights were the only source of light in the field and Mr. Wolfe testified that he would not have taken the shot but for the headlight illumination.

In Vytlingam v. Farmer, the defendants placed several boulders in the back of their vehicle to transport them to an overpass, where they dropped them from the bridge. The plaintiff was a passenger in a vehicle struck by one of the boulders.

At issue in Herbison was the scope of the phrase "arising from the ownership or directly or indirectly from the use or operation" of a motor vehicle in section 239(1) of the Insurance Act and in Vytlingam, the similar wording "arising directly or indirectly from the use or operation of an automobile" in OPCF 44R.


In 2005, two separate panels of the Court of Appeal, by 2-1 decision in both Herbison and Vytlingam, held that the injuries arose "directly or indirectly from the use or operation" of the defendants’ automobiles. In both cases, the full panel applied the two part purpose and causation test in the earlier Supreme Court of Canada decision in Amos v. ICBC, which incorporates a relaxed standard of causation. The majority decision in Herbison, written by Justice Borins, further held that the use of the words "directly or indirectly" in the legislation effectively removed the requirements of an unbroken chain of causation from the causation test. Justice Cronk in dissent concluded that the negligent shooting was an act independent of the ownership, use and operation of the truck and severed the chain of causation. In Vytlingam also, the majority judgment of Justice MacFarland held that the wording of the provision imported a relaxed causal requirement but Justice Juriansz in dissent felt that the addition of the words "directly or indirectly" did not change the Amos test and held that causation was not established because the use of the car was merely incidental to the tortious act of dropping the boulders off the overpass.


Justice Binnie wrote the reasons for the Supreme Court in both Herbison and Vytlingam. In both cases, Justice Binnie distinguished the situation in Amos, which dealt with no-fault benefits, from the third party situations at issue in Herbison and Vytlingam, despite the similar wording of the provisions. This is because the third party context requires the presence of an at fault motorist. Although a two part purpose and causation test still applies, the relaxed causation test in Amos was held not to apply unmodified to the third party context. The purpose inquiry is essentially the same, requiring only a determination of whether the fault occurred in the course of using a motor vehicle as a motor vehicle and not for some other purpose, but the causation element is to be applied more restrictively, namely, whether the chain of causation linking the claimed loss or injuries to the use and operation of the vehicle, which is shown to be more than simply fortuitous or "but for", is unbroken. At least in the third party context, the Court stated that the mere fact the use or operation of a vehicle "in some manner contributes to… the injury", as espoused in Amos, will not be enough.

In Herbison, Justice Binnie affirmed the dissenting judgment of Justice Cronk, concluding that the negligent shooting was an act independent of the ownership, use and operation of the truck. Justice Binnie emphasized that the insurance at issue is automobile insurance and the use of the truck merely created an opportunity in time and space for the damage to be inflicted, without any causal connection direct or indirect. He held that the "but for" approach applied by the majority did not give sufficient weight to the separate, distinct and intervening act of negligent shooting. Thus, in Herbison, it was held that the insured interrupted his motoring to start hunting, thereby breaking the chain of causation. Similarly, in Vytlingam, Justice Binnie emphasized the requirement for an unbroken chain of causation and held that the majority of the Court of Appeal erred in applying a "but for" test. The import of the word "indirectly" into the legislation does not alter that requirement. Thus, the tort in Vytlingam was dropping rocks from an overpass, and the rock throwing was an intervening event severable from the use and operation of the third party vehicle.

Finally, the Supreme Court has emphasized that in cases such as these, it is important to examine the factual basis of the tort claim. The essential inquiry is whether the tortious conduct relates causally to the use or operation of the vehicle or whether, as in Herbison and Vytlingam, there was an intervening act that severed the requisite chain of causation.

The Court in Vytlingam confirmed that Amos will still apply in the no-fault benefits context, but a new, tighter causation test has now been established for third party indemnification cases.

About BLG

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.

In association with
Related Topics
Related Articles
Related Video
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