C.A. Takes Latest Shot in Ownership, Use, Operation of an Automobile Debate

This afternoon, the Court of Appeal released its decision in Herbison v. Lumbermens Mutual Casualty. The Court allowed the claimant’s appeal and ruled that an auto insurer, Lumbermens, was obliged to indemnify its insured (“Wolfe”) against the tort liability he had incurred by accidentally shooting Herbison, believing the latter to be a deer. Herbison had been illuminated by the headlights of the insured automobile and Wolfe’s (the insured’s) evidence was that he would not have fired his rifle, had the headlights not lit what he believed to be a white-tail deer. This litigation is well-known in eastern Ontario . It has progressed through several trials and motions for summary judgment. Local lawyers having been hearing about the latest developments at seminars for several years now.

Barry Laushway, the winning counsel for the plaintiff (who was appealing a dismissal at trial), will undoubtedly be asked to ascend speaker’s podiums again this year, to describe how he snatched victory from the jaws of defeat (and by a narrow 2-1 margin too). (Some of you might recall that Barry is also counsel for the plaintiff in the Childs v. Desrormeaux social host case, now en route to the Supreme Court of Canada.)

The Court of Appeal’s decision in Herbison is an important development in the abundant caselaw interpreting the phrase, “arising from the ownership or directly or indirectly from the use or operation of any such automobile”, which appears in s. 239 of the Insurance Act. That was the issue that the Court was dealing with: did Wolfe’s auto policy cover his liability to Herbison for the accidental shooting?

The appeal was heard by Justices Borins, Cronk and Feldman. In the majority were Justices Borins and Feldman, although each wrote a separate set of reasons. These two justices agreed that the appeal should be allowed and that the Herbisons (the family of the injured man) should be paid directly by the auto insurer (Lumbermens) for a judgment of $832,272.85 that they had obtained against the insured, Wolfe, in a separate trial.

The dissenting judge, Madam Justice Cronk, would have dismissed the appeal and found that Lumbermens policy afforded no coverage for the claim.

Justice Borins quoted with approval from an article written by D.M. Shoemaker, “Arising Out of the Ownership, Use or Operation”: Tracing the Development and Questioning the Trend of Canadian Automobile Insurance Coverage (1997), 76 Can. B. Rev. 428. In particular, Borins J.A. adopted the following statement by the author:

Now, given the recent trends and developments of the common law, a court need only ask: Did the accident occur in the course of activities to which a vehicle might be put? The inclusion is interpreted broadly and the threshold is particularly low [emphasis in original]. Justice Borins said that the inclusion of the words, “directly or indirectly” in s. 239 “has effectively removed the requirement of an unbroken chain of causation from the causation test”. In fact, he went on to find that s. 239 does not require a finding of causation at all: “As causation is not an element of s. 239(1), all that is required is that the damages arise directly or indirectly out of, or originate from, the use or operation of a vehicle.” He said that there must only be “‘some nexus or causal relationship’ between the damages and the use or operation of the vehicle beyond ‘merely incidental or fortuitous’ use.”

Borins J.A. was satisfied that the necessary “nexus or causal relationship” was present here, because Wolfe had used his truck to get to the site from which he had taken his shot and had illuminated the scene with the vehicle’s headlights.

Feldman J.A. agreed with Justice Borins. She added her own observation, that “the policy of the legislature in defining liability coverage as broadly as it has is to provide very extensive vehicle liability compensation to injured parties. Furthermore, the case law has confirmed this legislative policy by according the statutory provision a very expansive interpretation.”

This decision will undoubtedly lead to more claims, having only a tangential connection to “ownership, use or operation of an automobile”, being found to be within liability coverage of an automobile insurance policy.

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