What is an ‘Accident’?
Part 2 of 2: Use or Operation
The Statutory Accident Benefits Schedule (‘SABS’) defines the word “accident” to mean an incident in which the use or operation of an automobile directly causes an impairment or damage.1 This blog post will discuss in plain language what is meant by ‘use or operation’ for the purpose of accident benefits.
Use or Operation
For the purposes of the SABS, an incident doesn’t necessarily meet the definition of just because it involved an automobile, or happened in the presence of one. To decide, the Court must apply a two-part test2:
- Purpose Test: Was the use or operation of the vehicle a cause of the injuries? The focus here is on whether the accident resulted from the “ordinary and well-known activities” for automobiles.3
The purpose test investigates the use being made of the vehicle at the time of the incident. For example, in applying the test the Court has held an “ordinary and well-known” use for automobiles does not include tripping over a curb with one’s hand touching a car.4 The Courts have also expressed doubt whether a physical assault taking place in a car5, drive-by shootings6, and injury after abandoning a car in a snowstorm7 are “ordinary and well-known” activities under the Purpose Test. However, Courts have tended to resolve these issues using the more narrow causation test.
- Causation Test: Did any non-ordinary intervening acts cause the injuries? In other words, was the use or operation of the vehicle a “direct cause” of the injuries?
The causation test is met where the “ordinary and well-known” operation or use of an automobile is the dominant feature of the injury. This test is not met where an intervening acts break the chain of causation; for example, such as physical assault, drive-by shooting, and snowstorm described above. In such situations the automobile is seen only as the location the assault or other intervening act takes place, and not as a direct cause or dominate feature of the harm. Further examples include an assailant shooting into the car of an insrud8, and psychological injuries resulting from an insured being assaulted in his car and then running over the assailant while escaping. 9
To learn more or to discuss your motor vehicle accident, contact your team at Kotak today!
- Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA)); Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA); and, Downer v. The Personal Insurance Company, 2012 ONCA 302 (CanLII).
- Amos v. Insurance Corp. of British Columbia,  3 SCR 405, 1995 CanLII 66 (SCC).
- Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92 (CanLII).
- Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19 (CanLII).
- Russo v. John Doe (2009), 95 O.R. (3d) 138,  O.J. No. 1481, 2009 ONCA 305 (CanLII).
- Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA). – Note: After sliding-out on ice, where insured did not intend to abandon the journey with her van, an injury from falling on the icy road was considered part of one incident involving the use or operation of an automobile – see Belair and Seale (FSCO, P02-00005, January 28, 2003).
- Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA).
- Downer v. The Personal Insurance Company, 2012 ONCA 302 (CanLII).
The contents of this blog are intended to provide general information on the law. It is not intended to form any solicitor-client relationship. Readers are encouraged to seek independent legal advice.
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Disclaimer: This article is intended to supply general information to the public. We make every effort to ensure the accuracy of this information. However, as laws change quickly, the reader should always ensure the accuracy and applicability of such information with respect to their particular case. The information contained in this article cannot replace a thorough and complete review of the reader’s situation by competent legal counsel who has had an opportunity to review all of the facts.