Aerts v. Olson, (1999) 117 O.A.C. 180 (DC)

• Judge: O'Leary, Southey and Cusinato, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: January 15, 1999
• Jurisdiction: Ontario
• Citations: (1999), 117 O.A.C. 180 (DC)

Aerts v. Olson (1999), 117 O.A.C. 180 (DC)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. FE.053

Margot Aerts, James Corrigall and Aaron James Kato Aerts-Corrigall by his litigation guardian Margo Aerts (plaintiffs/respondents) v. Christopher Olson, Ault Foods Ltd. and the Corporation of the City of Ottawa (defendants/appellants)

(98-DV-209)

Indexed As: Aerts et al. v. Olson et al.

Ontario Court of Justice

Divisional Court

O'Leary, Southey and Cusinato, JJ.

February 10, 1999.

Summary:

A child was killed when he was run over by a tractor-trailer. His parents and brother sued the driver and owner of the vehicle for the nervous shock they suffered from witnessing his death.

The Ontario Divisional Court, Southey, J., dissenting, held that the claim for nervous shock was barred by s. 266(1) of the Insur­ance Act. The court struck out the paragraph asserting the nervous shock claim from the statement of claim.

Insurance - Topic 5010.1

Automobile insurance - Compulsory gov­ernment schemes (incl. no-fault schemes) -Limitation on causes of action - General (incl. when applicable) - A child was killed when he was run over by a tractor-trailer - His parents and brother sued the driver and owner of the vehicle for the nervous shock they suffered from witnessing his death - They asserted that claims for nervous shock were not barred by s. 266(1) of the Insurance Act because s. 266(1) dealt only with actions for "bodily injury" and so did not take away actions for psychological injuries - The Ontario Divisional Court disagreed - Sec­tion 266(1) immunized potential defend­ants from actions based on psychological injury as well as physical injury - See paragraphs 7 to 10.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (incl. no-fault schemes) -Limitation on causes of action - Exceptions - A child was killed when he was run over by a tractor-trailer - His parents and brother sued the driver and owner of the vehicle for the nervous shock they suffered from witnessing his death - They asserted that s. 266(1) of the Insur­ance Act created exemptions from the general immunity it conferred on potential defendants and that one of those exemptions was where the injured person had died - The Ontario Divisional Court held that the claim for nervous shock was barred by s. 266(1) of the Act - Section 266 created an exemption to the immunity where " the injured person has died" not where " an injured person has died" - Ac­cordingly, it must be the in­jured who has died or whose injured satis­fy the criteria set out in s. 266(1)(a) and 266(1)(b) before there is an exemption from immunity - See paragraphs 11 to 19.

Torts - Topic 8701

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - General - [See Insurance - Topic 5010.1 and Insurance - Topic 5010.2 ].

Cases Noticed:

Meyers et al. v. Bright et al. (1993), 67 O.A.C. 134; 15 O.R.(3d) 129 (C.A.), refd to. [para. 7].

Mason v. Peters (1982), 39 O.R.(2d) 27 (C.A.), refd to. [para. 19].

Kemppainen v. Winter (1997), 27 O.T.C. 101 (Gen. Div.), refd to. [para. 31].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 266(1) [para. 7].

Counsel:

John R. Sigouin, Q.C., for the appel­lants/defendants;

Lawrence Greenspon, for the res­pon-dents/plaintiffs.

This appeal was heard on January 15, 1999, at Ottawa, Ontario, by O'Leary, Southey and Cusinato, JJ., of the Ontario Divisional Court. On February 10, 1999, the decision of the court was released, inclu­ding the following opinions:

O'Leary, J. - see paragraphs 1 to 20;

Cusinato, J. (concurring) - see para­graphs 21 to 24;

Southey, J., dissenting - see paragraphs 25 to 34.