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 Protection 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.
COURT OF APPEAL DECISIONS
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.
SUPREME COURT DECISIONS
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.