Zukowski v. O'Bee
 A.J. No. 722
2010 ABQB 421
Alberta Court of Queen's Bench
E.F. Macklin J.
June 21, 2010
The two Plaintiffs were injured when they were shot at while driving their vehicle. They retuned home in their vehicle after a weekend away and were confronted by the two Defendants, who had broken into their home. The Defendants ran from the home, brandishing shotguns, and shouted at the Plaintiffs to get out of the car. The male Plaintiff instead tried to back the car away and the Defendants fired their shotguns multiple times, seriously injuring both Plaintiffs. The Plaintiffs brought this action against the Defendants and obtained default judgment. The Plaintiffs then sought to recover the judgment from a fund set up under the Motor Vehicle Accident Claims Act, which permits a person to recover an unsatisfied judgment if the tortfeasor is uninsured or unknown. The Plaintiffs brought this motion for a special case to determine if they were entitled to recover the judgment under the fund.
The relevant provision of the Motor Vehicle Accident Claims Act, R.S.A. 2000, c. M-22 (the "Act") provides:
5(1) When a person recovers in a court in Alberta a judgment for damages for bodily injury to or the death of a person arising out of the use or operation within Alberta of a motor vehicle, the person may, on the determination of all proceedings, including appeals, apply to the Administrator in the prescribed form for payment under this section of the amount of the judgment or of the amount of the unsatisfied portion of it.
At issue was whether s. 5(1) requires the use or operation of a motor vehicle by a tortfeasor or whether it simply requires the use or operation of a motor vehicle by either the plaintiffs or a tortfeasor.
Based on earlier Supreme Court of Canada jurisprudence, the Court concluded that where indemnity is sought under a motor vehicle liability policy or an underinsured motorist endorsement to that policy, barring wording in the policy to the contrary, the determination of coverage is focused on whether the tortious acts arose from the tortfeasor's use or operation of a motor vehicle. Where no-fault benefits are sought pursuant to an insured's own policy, the focus is on the use and operation of a vehicle by the insured who is seeking those benefits.
The Court held that the wording of s. 5(1) was clear and requires the judgment against the tortfeasor to arise out of the tortfeasor's use or operation of a motor vehicle. That is, the judgment for damages must arise out of the use or operation of a motor vehicle, which necessarily means that the tortfeasor's liability must arise out of the tortfeasor's use or operation of a motor vehicle. It was irrelevant whether the Plaintiff was engaged in the use or operation of a motor vehicle at the time the injuries were sustained. Where the tortfeasor's liability does not arise out of the use or operation of a motor vehicle, any judgment against the tortfeasor will not be for damages arising out of the use or operation of a motor vehicle. The Court also examined the meaning of s. 5(1) within the context of other provisions of the Act and noted that provisions relating to an unknown owner or operator required that person to be the tortfeasor. Those provisions in combination demonstrated the legislative intent that the fund apply only where the judgment is for damages arising out of the tortfeasor's use or operation of a motor vehicle.
In this case, the parties had agreed that the tortfeasors were liable to the Plaintiffs in tort for the losses and damages sustained by the Plaintiffs as a result of an assault and battery and the injuries "did not arise out of the use or operation of the motor vehicle owned or operated by either or both of the Defendants". As there was no chain of causation linking the use or operation of a motor vehicle by the Defendants to the injuries suffered by the Plaintiffs, they were not entitled to be indemnified by the fund under the Act.