In a recent case from the Ontario Superior Court of Justice from September 25, 2018, the Court held that "car surfing" is an ordinary and well-known activity of a vehicle such that statutory accident benefits coverage was afford for a resulting injury.
In Charbonneau v Intact Insurance Company, 2018 ONSC 5660, the plaintiff stood on the rear bumper of a 2013 Nissan Quest which was in motion. She held onto the roof rack with one hand, and onto a friend's shoulder with the other hand. When the driver made a sharp turn, the plaintiff fell and hit her head on the concrete. The plaintiff commenced a claim against Intact Insurance Company for accident benefits coverage under s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010.
Intact Insurance Company appealed from an Order of Adjudicator Nicole Treksler of the Ontario Licence Appeal Tribunal arguing that the incident that the plaintiff was seriously injured in was not an "accident" and thus there should be no accident benefits coverage under Intact's insurance policy.
The Court disagreed. Relying on authority from the Supreme Court of Canada decision of Amos v. Insurance Corporation, 3 SCR 405, the Court applied the two-part test to determine whether a person was in an "accident" that arose out of the ownership, use or operation of a vehicle.
The test has two branches:
- Purpose: did the accident result from the ordinary and well-known activities to which automobiles are put?
- Causation: is there some nexus or causal relationship between the person's 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?
There was no dispute that the causation branch of the test was met. The issue before the Court was whether the plaintiff was using the vehicle for an ordinary and well-known purpose. The Adjudicator had material before her to suggest that "car surfing" is a commonplace enough activity that the legislature had thought fit to criminalize it as an offence under s. 178 of the Highway Traffic Act, R.S.O. 1990, c. H.8. which prohibits "attaching oneself to a vehicle". The Court determined that while car surfing is reckless and dangerous, it is not a more abnormal use of a vehicle than other reckless and dangerous uses such as texting while driving. As a result, the Court ruled that the plaintiff had established her injuries were caused by an "accident" and that statutory accident benefits coverage should be afforded.
In Alberta, "accident", for the purposes of the Insurance Act dealing with automobile insurance, means an accident arising from the use or operation of an automobile. While the decision in Charbonneau would appear to have yielded a surprising result, given the similar wording of "accident" under insurance legislation in Alberta, we can expect reliance upon Charbonneau to rule statutory accident benefits are afforded in situations such as car surfing or other seemingly reckless or dangerous behaviour.
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