Many of the risks associated with driving a vehicle are intuitive; however, some are not.

Imprecision in identifying the risks of driving influences how insurers assess the value of automobile insurance. The Ontario Superior Court of Justice decision in Gilbraith v Intact Insurance Company reminds insurers and insured persons how difficult it can be to properly assess and categorise risk at the outset of an insurance relationship.

The case is likely to rise through the Ontario appellate courts, providing an opportunity for the courts to clarify the risks that an auto insurance policy will reasonably cover.


Stephanie Gilbraith was walking along a sidewalk with a friend when a vehicle approached her from the opposite direction. As the vehicle passed, a passenger reached out the window and threw several eggs at Gilbraith and her friend, one of which struck Gilbraith in her right eye and severely damaged her central vision. The vehicle sped away and neither it nor the occupants have been identified.

Gilbraith's father had obtained insurance with Intact Insurance Company and had opted to include the Ontario Policy Change Form (OPCF) 44R Family Protection Coverage in his policy. There was no dispute that Gilbraith was insured under this policy. The issue was whether the policy applied at all.

Section 3 of OPCF 44R states as follows:

[T]he insurer shall indemnify an eligible claimant for the amount that he or she is legally entitled to recover from an inadequately insured motorist as compensatory damages in respect of bodily injury to or death of an insured person arising directly or indirectly from the use or operation of an automobile. (Emphasis added.)

Intact moved for summary judgment and argued that Gilbraith's injuries did not arise directly or indirectly from the use or operation of an automobile. The court held that this issue was a genuine issue that would require a full trial to resolve and dismissed Intact's motion.


Determining whether an injury arises "directly or indirectly from the use or operation of an automobile" requires two separate inquiries:

  • the purpose test; and
  • the modified causation test.

Purpose test

The purpose test considers whether the impugned incident occurred in the course of an automobile's ordinary and well-known activities.(1) The court interprets this test generically, rather than focusing on the driver's subjective intent. For example, in Russo v John Doe, the Ontario Court of Appeal found that drive-by shootings fell within an automobile's ordinary and well-known activities – namely, transporting passengers and apparatus (ie, a gun) from one place to another. Following Russo, the Ontario Superior Court held that the tortfeasors in Gilbraith used the vehicle to carry passengers and cargo (ie, eggs), which is a well-known use for a car.

Modified causation test

The modified causation test requires an unbroken causal chain linking the motorist's conduct as a motorist to the plaintiff's injuries.(2) For example, when a bungee cord that secured a boat to a trailer snapped and injured a nearby person, the Ontario Court of Appeal held that the plaintiff's injuries occurred directly or indirectly from the ordinary use of a vehicle (ie, towing a trailer).(3)

The court of appeal reached the opposite conclusion in Russo. In that case, a driver operated a van to facilitate a drive-by shooting. The court held that the plaintiff's injuries did not result from the driver's use of the van, but rather from the passenger firing a weapon. The van simply "create[d] an opportunity in time and space for damage to be inflicted".(4) The shooting was a severable act that broke the causal chain.

The facts in Gilbraith are similar to those in Russo. However, the court found that – unlike shooting a firearm – throwing an egg did not break the causal chain. Gilbraith adduced expert evidence that the kinetic energy imparted into the egg by the speeding vehicle increased the likelihood that she would suffer injury. On the strength of this evidence, the court held that there was an unbroken causal chain between speeding and the plaintiff's injuries, meaning that the plaintiff's injuries arose "directly or indirectly from the use or operation of an automobile". Therefore, OPCF 44R applied.


Gilbraith walks on eggshells between competing precedents. The Ontario Superior Court found that speeding contributed to an egg being thrown from a vehicle with such velocity that it caused Gilbraith's injuries. On this basis, the court concluded that speeding – an ordinary use for a vehicle – had caused the plaintiff's injury without any break in the causal chain. Unlike the tortfeasors in Gilbraith, this reasoning misses its mark.

Driving a vehicle at a greater speed undoubtedly imparts greater kinetic energy to the vehicle's cargo. However, whether a vehicle carries a boulder, a bullet or an egg, the kinetic energy of such cargo is not connected to a plaintiff's injury without some separate action (eg, abruptly stopping the vehicle, firing a gun or throwing an object). Put simply, an egg will not blind a pedestrian simply because a vehicle transports it at high speed. Something else must happen.

The central question is whether this "something else" falls within the ordinary and well-known activities of automobiles. The Ontario Superior Court's decision in Gilbraith does not analyse why the throwing of an object, however fast, should be considered within the ordinary and well-known activities of an automobile. On the contrary, throwing an object seems to be "a distinct and intervening act completely independent from the use or operation of the [motor vehicle]".(5) In the absence of the court's analysis on this central issue, Gilbraith offers little guidance on how the modified causation test should be applied in future cases involving projectiles from motor vehicles. The decision is likely to be appealed.


(1) Russo v John Doe (2009) ONCA 305, 95 OR (3d) 138.

(2) Ibid at para 26.

(3) AXA Insurance v Dominion of Canada Insurance Co (2004) 73 OR (3d) 391 (CA).

(4) Russo, supra note 1 at para 34.

(5) Ibid.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.