2008 BCSC 1123 Hannah v. John Doe

Before: The Honourable Mr. Justice Cullen

Reasons for Judgment

Counsel for the plaintiff	M. Bolda
Counsel for the defendant ICBC	J. D. James
Date and Place of Hearing:	July 11, 2008
	Vancouver, B.C.

[1] This is an application brought pursuant to Rule 18A of the Rules of Court, B.C. Reg. 2211/90 for an order dismissing the plaintiff’s claim against the defendant, Insurance Corporation of British Columbia (“ICBC”). The plaintiff’s claim against ICBC is brought pursuant to s. 24 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, which, so far as relevant to these proceedings, reads as follows:

24 (1) If bodily injury to or the death of a person or damage to property arises out of the use or operation of a vehicle on a highway in British Columbia and

(a) the names of both the owner and the driver of the vehicle are not ascertainable, or

(b) the name of the driver is not ascertainable and the owner is not liable to an action for damages for the injury, death or property damage,

any person who has a cause of action

(d) as mentioned in paragraph (b), against the driver,

in respect of the bodily injury, death or property damage may bring an action against the corporation as nominal defendant, either alone or as a defendant with others alleged to be responsible for the injury, death or property damage, but in an action in which the names of both the owner and the driver of the vehicle are not known or ascertainable, recovery for property damage is limited to the amount by which the damages exceed the prescribed amount.

(2) Proceedings must not be brought against the corporation as nominal defendant under this section unless the person bringing them gives written notice to the corporation as soon as reasonably practicable and in any event within 6 months after the accident that caused the bodily injury, death or property damage.

(3) If, after an action referred to in subsection (1) has been commenced, it is alleged that the injury, death or property damage was caused or contributed to by another vehicle, but

(a) the names of both the owner and the driver of the vehicle are not ascertainable, or

(b) the name of the driver is not ascertainable and the owner is not liable to an action for damages for the injury, death or property damage,

the corporation may be added as a nominal defendant on the application of any party and must be added as a nominal defendant on its own application.

(4) In an action against the corporation as nominal defendant, the corporation may deny generally the allegations in respect of the unidentified vehicle and its owner and driver, and need not set out the facts on which it relies.

…

(9) If, under this section, a judgment has been obtained against the corporation as nominal defendant or the corporation has settled a claim, the corporation may apply

(a) to the court where the judgment has been obtained, or

(b) if a claim has been settled, to the court that would have had jurisdiction to entertain an action for the recovery of damages to the amount of the settlement

for an order certifying that a person was, at the time of the accident, the owner or driver of the vehicle that caused the bodily injury, death or property damage in respect of which the judgment was obtained or settlement made.

(10) If the court hearing an application under subsection (9) is satisfied on the evidence that the person named in the application was at the time of the accident the owner, driver or both of the vehicle involved in that accident, it may make the order applied for, unless it is satisfied that the person would not have been liable for damages if he or she had appeared and defended the action or, in the case of a claim settled before action, in an action that might have been brought to enforce the claim, or it may direct the trial of an issue.

(11) On the making of an order under subsection (10) or on judgment of the trial of an issue directed under that subsection, the person certified, whether or not the driver of the vehicle is named in an unexpired driver’s certificate and whether or not the vehicle is specified in an unexpired owner’s certificate, is liable to pay the corporation as a debt due and owing all amounts paid by it pursuant to any judgment or settlement under this section, and section 20 (12), (13) and (15) applies.

[2] The issue on this application is whether the plaintiff’s claim engages coverage under s. 24 or whether it arises out of facts that do not implicate to the necessary nature or degree, the use or operation of a motor vehicle in the injuries for which the plaintiff has brought this action.

[3] The facts are not controversial. They are set out in the defendant’s written argument, para. 5 (b) to (l) inclusive, as follows:

(b) On Sunday, January 19, 2003, the Plaintiff was shopping at the Real Canadian Superstore at Schoolhouse and Lougheed for business reasons with respect to her business, the French Quarter Pub.

(c) The Plaintiff and her husband parked their vehicle three to four rows from the front of the building. They obtained a shopping buggy, entered the store, and completed the shopping task. They returned to their vehicle and the Plaintiff’s husband loaded the purchases into the truck of the vehicle. The Plaintiff left to return the buggy to the stall, 6 parking stalls away from their vehicle, and the Plaintiff’s husband got into the vehicle.

(d) As the Plaintiff was walking towards the buggy stall, walking away from the store, she saw a van coming towards her weaving from side to side. As she got to the buggy stall the van was right beside her. As the van went past, the passenger looked at her.

(e) There was a driver and a passenger in the van.

(f) The Plaintiff turned to go into the buggy stall. There was no noticeable swerving of the van towards her. She caught a blur of motion, started to turn, and noticed the passenger had grabbed her purse strap which was on her right shoulder. The van accelerated away and she went flying backwards down the parking lot. She hit her head on the pavement.

(g) The van did not run into her or bump her. The van did not strike her. She did not bump into a parked vehicle.

(h) It was the passenger that grabbed the purse. His arm was outside the front passenger seat window.

(i) The Plaintiff stopped being dragged when the purse ripped.

(j) The Plaintiff’s husband helped her into their vehicle and they attempted to give chase but the van was gone. They returned to the French Quarter Pub. An employee took the Plaintiff to the R.C.M.P. station where the Plaintiff worked with a sketch artist to prepare a computer composite of the passenger’s face.

(k) The Plaintiff left the R.C.M.P. station and sought medical attention.

(l) The Plaintiff’s purse was found in an abandoned stolen vehicle. Some ID was found in different vehicles. The Plaintiff took part in a photo line-up and other R.C.M.P. investigations.

[4] The defendant’s argument in support of its application for dismissal of the plaintiff’s claim, rests on two fundamental bases. The first is that the language of s. 24 and the accompanying case law confines its ambit to motor vehicle accidents and that the present case involves, not an accident arising from negligence, but rather an intentional act amounting to a civil assault and battery and conversion, or in terms of the criminal law, an assault and theft or a robbery.

[5] The defendant’s fundamental point is that the injuries to the plaintiff do not arise out of the use or operation of a motor vehicle as those terms are used in s. 24 and in the relevant case law.

[6] The defendant’s second point is a variation of the first, and focuses on:

(1) whether the unidentified driver was using the motor vehicle as a motor vehicle or for some other purpose (such as to facilitate an assault and theft); and

(2) whether there was an intervening act, severing the use of the motor vehicle from the events causing the injury to the plaintiff.

[7] In his submissions, counsel for the defendant relied on Canadian Indemnity Co. v. Walkem Machinery & Equipment Ltd., [1976] 1 S.C.R. 309, 53 D.L.R. (3d) 1 and Mutual of Omaha v. Stats, [1978] 2 S.C.R. 1153, 87 D.L.R. (3d) 169 for the proposition that the term “accident” should be given its “ordinary and popular meaning” (Mutual of Omaha, supra), or more particularly means “any unlooked for mishap or occurrence” (Canadian Indemnity, supra,). The defendant emphasized the distinction between a claim for no-fault benefits where, whether an event is an accident is defined from the perspective of a claimant from a claim for third party liability or whether an event is an accident is defined from the perspective of the tortfeasor.

[8] In distinguishing between injuries that are intentionally caused, as opposed to negligently caused, the defendant relied on the decision in Co-operative Fire & Cas. Co. v. Saindon (1975), [1976] 1 S.C.R. 735, 1975 CarswellNB 27 (er) in which the tortfeasor who threatened his neighbour with his lawnmower by lifting it up and directing it at his neighbour’s face, causing injury when the neighbour put his hands up to protect himself, sought coverage from his home owner’s insurance.

[9] The insurance coverage in that case had an exclusion clause that exempted both intentional and reckless acts.

[10] In overturning the appeal division’s finding that the tortfeasor had not intentionally inflicted the damage to his neighbour, Ritchie J. for the majority held that given the “unnatural use to which the tortfeasor put his lawnmower”, the damage it caused “was an eminently foreseeable development” and “a dominant cause of the occurrence”. In coming to his conclusion, Ritchie J. relied on the judgment of Lord Phillmore in Gray v. Barr, [1971] 2 All E.R. 949, [1971] 2 Q.B. 554 in which the latter said:

No doubt the word ‘accident’ involves something fortuitous or unexpected, but the mere fact that a wilful and culpable act - which is both reckless and unlawful - has a result which the actor did not intend surely does not, if that result was one that he ought reasonably to have anticipated, entitle him to say that it was an accident.

[11] The applicant also relied on Stevenson v. Reliance Petroleum Ltd., [1956] S.C.R. 936, 1956 Carswell Ont 83 (er) which addressed the scope of the phrase “arising out of the use or operation of a vehicle” and held:

The expression “use or operation” would or should, in my opinion, convey to one reading it all accidents resulting from the ordinary and well-known activities to which automobiles are put, all accidents which the common judgment in ordinary language would attribute to the utilization of an automobile as a means of different forms of accommodation or service.

[12] The applicant in the case at bar contended that, given the inference that could be drawn from the evidence that the driver of the motor vehicle was a party to the robbery of the plaintiff, he was engaged in an intentional, not a negligent act. The act therefore did not fall within the compass of s. 24, which deals with “the use and operation of a vehicle” and “accidents”.

[13] The applicant further submitted that the requirement in s. 24(1) that the bodily injury or death of a person must arise out of the use or operation of a motor vehicle must meet the test of third party motor vehicle coverage.

[14] In Non-Marine Underwriters v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, the court dealt with the issue whether a defendant bus driver could require his homeowner’s insurance policy insurer to defend claims against him arising out of various sexual assaults committed against users of his bus. In holding that there was no such obligation under the policy of insurance that accepted bodily injury caused by any intentional or criminal act, Iacobucci J., writing in concurrence with the majority on behalf of himself, Major and Bastarache JJ., quoted from Brown and Menezes Insurance Law in Canada (2^nd Ed. 1991) at pp. 125 – 126:

Insurance is a mechanism for transferring fortuitous contingent risks. Losses that are neither fortuitous nor contingent cannot economically be transferred because the premium would have to be greater than the value of the subject matter in order to provide for marketing and adjusting costs and a profit for the insurer. It follows, therefore, that even where the literal working of a policy might appear to cover certain losses, it does not, in fact, do so if (1) the loss is from the inherent nature of the subject matter being insured, or (2) it results from the intentional actions of the insured.

[15] The applicant submitted that that observation is was apposite to the facts at bar. The applicant also relied on other decisions in which the operative conduct said to trigger coverage was “negligence” in the use or operation of a motor vehicle, including Law, Union and Rock Ins. Co. Ltd. v. Moore’s Taxi Ltd. (1959), [1960] S.C.R. 80, 22 D.L.R. (2d) 264 and Fraser Valley Taxi Cabs Ltd. v. Insurance Corp. of British Columbia (1993), 75 B.C.L.R. (2d) 94, 100 D.L.R. (4^th) 282 (C.A.).

[16] The applicant also submitted that in two recent decisions, the Supreme Court of Canada “has restated the law concerning the phrase ‘arises out of the use or operation of a motor vehicle’ in the liability context … and forcibly rejected those decisions that conflated the test for liability coverage with the test for no-fault benefit coverage.”

[17] Those cases are Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, [2007] 3 S.C.R. 373 and Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47, [2007] 3 S.C.R. 393.

[18] In Citadel two tortfeasors used their vehicle to haul large boulders to an overpass, where they dropped them on a vehicle passing below, injuring the plaintiffs. The plaintiffs sought coverage under their policy for under-insured motorist protection. The courts below found a basis for coverage on the strength of Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405, 127 D.L.R. (4^th) 618 which was a case that dealt with no-fault benefits coverage, not liability coverage.

[19] The Supreme Court of Canada overturned the decisions of the courts below, finding that the injuries did not arise out of the tortfeasor’s use or operation of their motor vehicle. The act of dropping the rocks was severable from the use or operation of the motor vehicle.

[20] A similar result ensued in Lumbermens where the tortfeasor used his vehicle to travel to hunting grounds and, en route, stopped the vehicle, got out and shot what he thought was a deer, but turned out to be another hunter. The courts below, on the strength of Amos, found coverage under the third party liability coverage, but the Supreme Court of Canada overturned those decisions, holding that the injuries did not arise out of the tortfeasor’s use or operation of his vehicle; rather, they arose from the negligent use of a rifle.

[21] The applicant submitted that the Citadel decision is particularly important because of its treatment of Chan v. ICBC (1966), 16 B.C.L.R. (3d) 96, 20 M.V.R. (3d) 126 (C.A.), which the applicant contends is markedly similar to the case at bar. In Chan, the tortfeasor used a vehicle to travel around the Vernon area to throw bricks from the vehicle at other vehicles. The Court of Appeal found that the damage caused to the plaintiff by one such incident was contributed to by the tortfeasor’s use or operation of their vehicle and accordingly, the acts fell within the ambit of s. 23 (now 24) of the Insurance (Motor Vehicle) Act.

[22] In giving his judgment for the court in Chan, Finch J.A. (as he then was) held, as follows:

I observe that s. 23 does not require proof that the injury arises out of the negligent use or operation of the motor vehicle. It requires only that the plaintiff establish “a cause of action” against the driver (or owner) and that the injury arises out of the use or operation of a motor vehicle. It is clear on this language that if the driver of the unidentified vehicle were proven to have intentionally driven his vehicle into collision with the plaintiff’s vehicle, the plaintiff could bring a claim under s. 23.

[23] In his judgment, Finch J.A. concluded that the cause of action arose out of the use or operation of a motor vehicle, using the following logic:

Here, the operation of the unidentified vehicle on the highway placed the assailant in a position to target an oncoming vehicle with his brick. That was the enterprise in which the driver was engaged at the time. The vehicle was also used to make the assailants’ escape easy and identification next to impossible. On the facts as they emerge from the reasons of the learned trial judge, it is not possible to isolate the throwing of the brick from the use or operation of the unidentified vehicle. There is sufficient connection between those two acts to conclude that the use and operation of the vehicle was a contributing cause of the plaintiff’s injury or was connected to it in some way.

[24] In the course of his reasons, Finch J.A. declined to follow the judgment of Hollinrake J.A. in Collier v. Insurance Corp. of British Columbia (1995) 100 B.C.L.R. (2d) 201, 10 M.V.R. (3d) 115 (C.A.). In that case, a motor vehicle driven by the plaintiff was used to block off a roadway to prevent the escape of a person who was then assaulted by others with whom Collier was associated. Collier was held liable to pay damages for the victim’s injuries and Collier sought coverage from ICBC on the footing that the victim’s injuries arose out of Collier’s use or operation of his vehicle. In rejecting the plaintiff’s claim against ICBC, Mr. Justice Hollinrake characterized the events giving rise to the injury as an assault. He went on to say as follows:

I conclude on the facts before us that it cannot be said that furthering the assault on Mr. Harrison [the victim], as I think the respondent did, was an ordinary and well known activity to which automobiles are put. In my opinion automobiles are not used, in ordinary language, to commit the tort of assault. That being so, the respondent cannot bring himself within the insuring agreement because, in my opinion, the liability imposed by law on him did not arise out of the ownership, use or operation of his vehicle as those words are found in the agreement to indemnify in the policy.

[25] Mr. Justice Finch held as follows:

As I understand these reasons, indemnity would have been denied to Collier because assault is intentional conduct and intentional assaults cannot arise out of the use or operation of a motor vehicle. If my understanding of the reasons is correct, I would respectfully disagree with the conclusion. If A intentionally drives his vehicle into B, and thereby injures B, I do not think it could be said that B’s injury did not arise from the use or operation of A’s vehicle. (See Canada (Attorney General) v. Connolly, supra).

[26] In response to an argument advanced by the appellant that the words “arising out of” in s. 23 should be taken to mean “caused by” in the sense of being a proximate effect of or dominant cause of the loss or injury, Finch J.A. said as follows:

In my respectful view, that meaning of the phrase “arising out of” has now been firmly rejected by the Supreme Court of Canada in Amos, in favour of a much less restrictive meaning, a meaning which requires only some connection between the injury and the use or operation of the vehicle or that the use or operation of the vehicle contribute to or add to the injury. Although the Supreme Court of Canada declined leave to appeal in Collier, it is clear that the judgment in Amos has changed the law and has relaxed substantially the test to be met in determining whether an injury arises out of use or operation.

[27] In the present case, the applicant relies on the reasoning of the Supreme Court of Canada in Citadel, supra, in which Binnie J. for the court disapproved of the reasoning in Chan, supra, after deciding that in the case before it, the throwing of rocks by the tortfeasors was “an activity entirely severable from the use or operation of the tortfeasor’s vehicle.” The court, speaking through Binnie J., said as follows:

A similar issue may arise in unidentified vehicle indemnification insurance. In Chan v. Insurance Corp. of British Columbia [1996] 4 W.W.R. 734 (B.C.C.A.), the claimant was injured while riding as a passenger in her boyfriend’s car when she was struck by a brick thrown from an oncoming vehicle that left the scene and was never identified. The B.C. court asked itself whether the brick throwing could be “isolated” from the act of driving the assailant’s car along a highway, and accepted the trial judge’s view that it was not possible to do so. (para 30) I accept that in Chan, as here, there was an understandable desire to give the innocent victim access to a pool of insurance money. Nevertheless, if the analysis had focussed on the elements of the tort that gave rise to the tortfeasor’s liability (as it should have), the fact the brick was thrown from the car rather than a horse does not qualify it as a motoring activity. The rock throwing was an intervening act. Neither in Chan nor in the present appeal was the tortfeasor at fault as a motorist.

[28] The applicant in the present case submits that the Supreme Court of Canada has in effect overruled Chan, and to the extent that Chan and the present case are indistinguishable, provides the basis for a determination that the plaintiff does not fall within the ambit of s. 24.

[29] Counsel for the applicant in the present case relied on certain principles that he submitted can be derived from the decisions in Citadel and in Lumbermens. Those principles are set out in his written argument as follows:

i. There must be liability on the part of the tortfeasor as a motorist. The matter involves automobile legislation.

ii. Another way to look at it is: was the tortfeasor at fault as a motorist?

iii. Amos is not a template to resolve liability coverage because the coverage requirements in Amos do not require the presence of an at-fault motorist.

iv. The focus is on the use of the tortfeasor’s vehicle.

v. The two part test is:

1. Whether the claimed injury is in respect of a tortfeasor whose fault occurred in the course of using a motor vehicle as a motor vehicle and not for some other purpose; and

2. Whether there is an unbroken chain of causation linking the claimed injury to the use or operation of the tortfeasor’s motor vehicle which is shown to be more than incidental, fortuitous or “but for”.

vi. The first part of the test, the purpose test, limits coverage to motor vehicles being used as motor vehicles.

vii. The second part of the test, the causation test, requires there be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries of which the claim is made.

viii. The claimant must implicate the vehicle in a manner that is more than merely incidental or fortuitous or but for.

ix. Use of the motor vehicle contributing “in some manner” to the ability to commit the tort that caused the injuries does not mean the tort was committed in the tortfeasor’s capacity as an at-fault motorist.

x. The analysis must focus on the elements of the tort that gives rise to the tortfeasor’s liability.

xi. Merely riding in a motor vehicle when a tort is committed is not enough to satisfy the causation test.

xii. Merely using the motor vehicle to take the tortfeasor and/or the object used to commit the tort to and from the scene of the tort is not enough.

xiii. Merely creating an opportunity in time and space is not enough.

[30] It is the essential submission of the applicant that the plaintiff’s alleged injury in the case at bar was not caused by a tortfeasor whose fault occurred in the course of using a motor vehicle as a motor vehicle, and not for some other purpose. The applicant also submits there is no unbroken chain of causation in the case at bar linking the plaintiff’s injury to the use or operation of the tortfeasor’s motor vehicle that has been shown to be more than incidental, fortuitous, or but for.

[31] That formulation of the issue comes from the decision in Citadel at para. 12 where Binnie J. identified the issue before the court thus:

In this appeal, of course, we are not concerned with no-fault statutory accident benefits payable to an insured. In Amos, the focus was necessarily on the use of the claimant’s car; the focus here is on the use of the tortfeasor’s vehicle. The questions are, firstly, whether the Vytlingams’ claim is in respect of an inadequately insured tortfeasor whose fault occurred in the course of using a motor vehicle as a motor vehicle and not for some other purpose (as a diving platform, for example, as hereafter discussed), and secondly, whether the chain of causation linking the claim loss or injuries to the use and operation of the motor vehicle, which is shown to be more than simply fortuitous or “but for”, is unbroken.

[32] In the course of his judgment, Binnie J. clarified the distinction between using a motor vehicle as a motor vehicle and use for some other purpose. In particular, he drew a distinction between the use of a vehicle for a motoring purpose and a non-motoring purpose. In drawing that distinction, he made the following observations in paras. 16, 17, 18 and 19:

If, for example, a claimant got drunk and used her car as a diving platform from which to spring head first into shallow water, and broke her neck, she could not reasonably expect coverage from her motor vehicle insurer, even though, in a sense, she “used” her motor vehicle.

…

[A]n injury resulting from such an off-beat use could not sensibly be said to arise “directly or indirectly from the use or operation” of the motor vehicle as a motor vehicle. [emphasis in the original]

The appellant insurer seeks to restrict coverage in arguing, for example, that in this case, indemnification should be denied because Farmer used “the vehicle for the purpose of getting weapons to the scene of a crime”, and “it is that kind of situation that should not fall … within the meaning of ordinary and well known activities”...

I am unable to agree. Firstly, even if transporting rocks across the countryside had been the effective cause of the Vytlingams’ injuries, which it wasn’t, transportation is what motor vehicles are for. The fact that transportation in this case was for a criminal purpose no more excludes coverage than the fact that Farmer may have been driving his vehicle on the night in question while impaired. Innocent drivers (or pedestrians) should not be denied indemnity if struck by (to give a further example) a get-away car “transporting” bank robbers from the crime scene. In all these cases, the tortfeasor, regardless of his or her subjective reasons for climbing into the car, is at fault as a motorist.

Secondly, and in any event, the appellant insurer’s argument overstates the scope of the Amos purpose test. The “ordinary and well-known activities to which automobiles are put” limits coverage to motor vehicles being used as motor vehicles, and would exclude use of a car as a diving platform (as above) or retiring a disabled truck to a barn to store dynamite (which explodes), or negligently using the truck as a permanent prop to shore up the drive shed (which collapses, injuring someone). In none of those cases could it be said that the tortfeasor was at fault as a motorist. In none of those cases could it be said that the motor vehicle was being used as a motor vehicle. That is the sort of aberrant situation that the Amos purpose test excludes, and nothing more. Here, as in Amos, it is the causation test that did the work, not the purpose test.

[33] In Citadel, Binnie J. explained how it was “the causation test that did the work”. He explained that the vehicle in respect of which coverage is claimed must be implicated in a manner that is more than merely incidental or fortuitous. After characterizing the brick throwing in the Chan case as “an intervening act” that broke the chain of causation, he turned to the question of whether Farmer’s (the tortfeasor in Citadel) tort was committed as a motorist or as a rock thrower, and whether, if it was as a rock thrower, the rock throwing was so closely connected with the use of his car to qualify the tort as a “motorist” tort for the purposes of the relevant legislation. He concluded the tort was committed as a rock thrower, not as a motorist, and that the rock throwing was not so closely connected to the use of the tortfeasor’s car to qualify it as a “motorist tort”. He concluded:

As stated earlier, coverage under the [relevant legislation] is dependent on the Vytlingams’ being able to demonstrate that their claim arose from the ownership of, or directly or indirectly from the use or operation of the Farmer vehicle. It is not enough to demonstrate that “but for” Farmer’s car, the tort could not have been committed in the way that it was. To suggest that any time a car is used to transport people to the scene of a tort or a crime is sufficient to engage “inadequately insured motorist” coverage stretches the intended coverage until it snaps. The trial judge found that “but for” Farmer’s car, the tortfeasors could not have transported the rocks weighing 27 and 30 pounds to the scene of the crime, but the insurer’s liability turned on the nature of the tort, not on the size of the rocks.

The claimant argues that the car was “integral” to the whole operation which was planned to include its use, but the test is concerned with the elements of the tort itself, which here consisted of dropping the rocks from the highway overpass, not transporting rocks across the countryside. As it was put by appellant’s counsel, “No amount of carrying rocks all over the country for whatever purpose, gives rise to one iota of civil liability. Liability comes from dropping those rocks. “

[34] In the result, Binnie J. agreed with Juriansz J.A. in the Ontario Court of Appeal, who in dissent concluded that the rock throwing was an independent act that broke the chain of causation.

[35] In my view, applying the reasoning of the Supreme Court of Canada in Citadel to the facts of the case at bar, compels a different conclusion.

[36] In the case at bar, it is clear that at all material times, the tortfeasor’s motor vehicle was being used as a motor vehicle. That it was being used to facilitate the commission of a criminal offense no more negates its use as a motor vehicle than if it were being driven to or from the scene of a bank robbery, or as a vehicle to transport a kidnap victim. In my view, a finding in the present case that the motor vehicle was being used as a motor vehicle, notwithstanding that it was used in the commission of the offense of robbery or the civil tort of assault, is consistent with the reasoning of Binnie J. in the Citadel case. It is clear from Binnie J.’s reasoning that the fact a motor vehicle is used to facilitate or effect a criminal purpose does not render its use as anything other than as a motor vehicle.

[37] The question that arises in the case at bar is whether the use of the motor vehicle was fortuitous or incidental to the act that caused the injury or whether it was integral to it.

[38] In my view, in the case at bar, unlike the cases of Citadel, Chan, Collier or Lumbermens, the act causing the alleged injury to the plaintiff was directly caused, and not isolated from, or severed from the use of a vehicle as a vehicle. Here, the uncontradicted evidence is that, as the passenger in the vehicle grabbed the plaintiff’s purse, which she was carrying on her shoulder, the driver accelerated the vehicle, and it was that acceleration in combination with the passenger’s grip on the plaintiff’s purse that caused her to fall to the ground and be dragged by the vehicle as it accelerated away. For the present case to be analogous to the circumstances in Chan, in which Binnie J. found a severance between the tortfeasor’s use or operation of his motor vehicle and the act causing the injury, the tortfeasor’s motor vehicle in the present case would have had to be stationary and not implicated in the action by which the plaintiff was thrown to the ground and injured. In my view, there is a clear causal link between the use of a motor vehicle as a motor vehicle in the present case, and the injuries alleged by the plaintiff.

[39] In my view, this case is distinguishable from the facts in Co-operative Fire, supra, relied on by the applicant. In that case the court was confronted with the need to construe the effects of an exclusion clause in a policy of insurance excluding coverage for a “bodily injury or damage caused intentionally by or at the direction of an insured”, and as well s. 2 of the Insurance Act, 1968 of New Brunswick, upon the circumstances at issue. Section 2 of the Insurance Act reads as follows:

… a violation of any criminal or other law in force in the Province or elsewhere shall not, ipso facto, render unenforceable a claim for indemnity … except where the violation is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage ….

[40] Thus the court in Co-operative Fire was dealing with whether an act by the insured was governed by a term in the contract of insurance excluding liability for intentional acts. The court found that although the consequences were unintended in that case, the unlawful act causing them was not, and hence it (the act) fell within the scope of the exclusion clause.

[41] In the present case, there is no exclusion clause. It is true, as the applicant submits, that in s. 24 the occurrence giving rise to the bodily injury or death that is the subject of a claim is referred to as an accident in various subsections. However, in those cases that the applicant relies on as support for the proposition that the word “accident” is to be given “its ordinary and popular meaning” and means “any unlooked for mishap or occurrence”, the operative wording is somewhat different from that in the case at bar. In Canadian Indemnity, supra, the relevant term being applied was as follows:

The Coverage given by this policy applies only to accidents or occurrences arising out of and incidental to the business operations of the Insured and originating during the policy period.

[see Straits Towing Ltd. v. Washington Iron Works¸ [1970] 74 W.W.R. 228, 1970 CarswellBC 157 (er) (B.C.S.C.) at 230].

[42] In Mutual of Omaha, supra, the applicable term under consideration was:

"Injuries" means accidental bodily injuries received while the Insured is insured under the policy which result in covered loss independently of sickness and all other causes, provided such injuries are sustained….

[43] Thus, in both cases, unlike in the present case, the policies of insurance contained a clause that expressly limited coverage to damage or injuries caused by accidents.

[44] As Finch J.A. noted in Chan, supra, however, s. 24 does not refer to bodily injury or death arising from the negligent or accidental use or operation of a motor vehicle. It requires “only that the plaintiff establish ‘a cause of action’ against the driver (or owner) and that the injury arises out of the use or operation of the motor vehicle”. It was Finch J.A.’s conclusion in Chan that the injury arose out of the use or operation of the motor vehicle (that is, his conclusion with respect to causation) that attracted disagreement from the Supreme Court of Canada in Citadel, not his conclusion that intentional acts fall within the scope of s. 24.

[45] Indeed, in Citadel, Binnie J., in giving examples of what would attract coverage under s. 24, did reference actions (in exploring the purpose test) that, under the reasoning in Saindon, would attract the characterization of intentional. In particular, he gave an example of a motorist intentionally trying to jump his vehicle over the interstate highway at high speed, “Evel Knievel style”, and crashing down on the plaintiff’s vehicle. There, he held, “…there is no doubt that [the tortfeasor] would have been driving the vehicle and driving meets the Amos purpose test.”

[46] Justice Binnie observed that the relevant Ontario legislation, which is similar to s. 24, “is a big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle”. Binnie J. quite explicitly rejected the argument that “coverage can be denied if the tortfeasor is engaging (as here) in criminal activity”. He went on to note “[t]he insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example”.

[47] In my view, the reasoning of Binnie J. in Citadel is consistent with that of Finch J.A. in Chan, so far as it relates to the extent s. 24 covers intentional criminal acts. The case at bar does not involve a tortfeasor seeking coverage for his intentional criminal actions in the face of either policy considerations or an express statutory or contractual exclusion. Rather, it involves an insured seeking coverage for an injury arising from the use or operation of a motor vehicle, which is the foundation for s. 24. The use of the word “accident” to describe the occurrence giving rise to the injury does not, in my view, modify the scope of s. 24 to exclude intentional criminal acts of which the use or operation of a motor vehicle forms an integral part. In any event, in the present case, while an inference can be drawn that the driver of the motor vehicle was complicit in his passenger’s unlawful act, the evidence does not go so far as to preclude a finding that the use or operation of the motor vehicle in the course of those events was, as well, negligent. There was no evidence that the tortfeasor intended to pull over or injure the plaintiff, only that he intended to facilitate a theft that involved some indirect application of force to the plaintiff. The ultimate cause of the plaintiff’s alleged injuries was incidental to the tortfeasor’s purpose and it could not be said to be inconsistent with the meaning of the word “accident” as it is used in s. 24.

[48] I therefore dismiss the defendant’s application for an order dismissing the plaintiff’s action, and order costs to the plaintiff.

“A.F. Cullen J.”
The Honourable Mr. Justice A.F. Cullen