Chisholm v. Liberty Mutual Group, (2002) 163 O.A.C. 129 (CA)

• Judge: Laskin, MacPherson and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 13, 2002
• Jurisdiction: Ontario
• Citations: (2002), 163 O.A.C. 129 (CA)

Chisholm v. Liberty Mutual (2002), 163 O.A.C. 129 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. AU.024

Michael Chisholm (plaintiff/appellant) v. Liberty Mutual Group (defendant/respondent)

(C36954)

Indexed As: Chisholm v. Liberty Mutual Group

Ontario Court of Appeal

Laskin, MacPherson and Simmons, JJ.A.

August 15, 2002.

Summary:

An unknown assailant fired gun shots at Chisholm while he was driving his wife's car. He was rendered a paraplegic. He was refused accident benefits from his wife's insurer. He sued. The insurer sought a determination of the question whether "the use or operation of an automobile directly caused" Chisholm's injuries. A motions judge held that the direct cause of the his injuries was the gun shots, not the use or operation of a motor vehicle. Chisholm appealed.

The Ontario Court of Appeal dismissed the appeal.

Insurance - Topic 5006.3

Automobile insurance - Compulsory government schemes - General - Accident defined - "Accident" was defined in the Statutory Accident Benefits Schedule, Accidents on or after November 1, 1996, as "an incident in which the use or operation of an automobile directly causes an impairment" - The Insurance Act continued to use the phrase "directly or indirectly" - An insured argued that this created a gap or inconsistency between the coverage under the Act and Schedule which could be avoided by interpreting the phrase "directly" very broadly to mean "directly or indirectly" - The Ontario Court of Appeal rejected the argument - The legislative history of the Schedule showed an intent to differentiate between direct and indirect cause - Further, the alleged gap was statutorily mandated (Act, s. 268(1)) - See paragraphs 7 to 15.

Insurance - Topic 5006.3

Automobile insurance - Compulsory government schemes - General - Accident defined - "Accident" was defined in the Statutory Accident Benefits Schedule, Accidents on or after November 1, 1996, as "an incident in which the use or operation of an automobile directly causes an impairment" - An insured argued that the two part test in the 1995 Supreme Court of Canada decision in Amos v. Insurance Corporation of British Columbia governed the interpretation of "accident" under the 1996 Schedule - The Ontario Court of Appeal rejected the argument - The stringent causation requirement "directly causes" in the definition of accident under the 1996 Schedule meant that the Amos test, or at least the causation part of that test, could no longer be used to interpret the definition - See paragraphs 17 to 21.

Insurance - Topic 5006.3

Automobile insurance - Compulsory government schemes - General - Accident defined - An unknown assailant fired gun shots at Chisholm while he was driving his wife's car - He was rendered a paraplegic - He was refused accident benefits from the insurer - "Accident" was defined in the Statutory Accident Benefits Schedule, Accidents on or after November 1, 1996, as "an incident in which the use or operation of an automobile directly causes an impairment" - The insured argued that the use or operation of the car was a direct cause of his injuries because he would not have been wounded unless he had been confined in the car (i.e. "but for" test of causation) - The Ontario Court of Appeal rejected the argument - The direct cause of the insured's injuries was the gun shots, not the use or operation of a motor vehicle - See paragraphs 2 and 24 to 37.

Words and Phrases

Directly causes - The Ontario Court of Appeal discussed the meaning of this phrase as used in s. 2(1) the Statutory Accident Benefits Schedule, Accidents on or after November 1, 1996, Reg. 403/96 - See paragraphs 7 to 15.

Cases Noticed:

Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405; 186 N.R. 150; 63 B.C.A.C. 1; 104 W.A.C. 1, refd to. [para. 6].

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

Sullivan Estate et al. v. Bond et al. (2001), 148 O.A.C. 86; 55 O.R.(3d) 97 (C.A.), refd to. [para. 7].

Saharkhiz v. Underwriters, Lloyd's, London (1999), 102 O.T.C. 19; 46 O.R.(3d) 154 (Sup. Ct.), refd to. [para. 11].

Alchimowicz v. Continental Insurance Co. of Canada (1996), 37 C.C.L.I.(2d) 284 (Ont. C.A.), refd to. [para. 14].

Warwick et al. v. Gore Mutual Insurance Co. et al. (1997), 97 O.A.C. 345; 32 O.R.(3d) 76 (C.A.), refd to. [para. 14].

Vijeyekumar v. State Farm Mutual Automobile Insurance Co. (1999), 122 O.A.C. 29; 44 O.R.(3d) 545 (C.A.), refd to. [para. 19].

Saharkhiz v. Underwriters, Lloyd's, London (2000), 132 O.A.C. 191; 49 O.R.(3d) 255 (C.A.), refd to. [para. 19].

Petrosoniak v. Security National Insurance Co. (1998), F.S.C.O. A98-000198, refd to. [para. 21].

Karshe v. Non-Marine Underwriters, Members of Lloyd's (2000), F.S.C.O. A99-000855, refd to. [para. 21].

TTC Insurance Co. v. Correia (2001), F.S.C.O. Appeal P00-00061, refd to. [para. 21].

Polemis, Re, [1921] 3 K.B. 560, refd to. [para. 27].

Hanlon v. Guarantee Co. of North America (1997), O.I.C. Appeal P95-00003, refd to. [para. 31].

Zurich Insurance Co. v. Lenti (1998), O.I.C. Appeal P98-00030, refd to. [para. 31].

Elensky v. Royal & Sun Alliance Insurance Co. of Canada (2001), F.S.C.O. A00-000720, refd to. [para. 31].

Sarkisian v. Co-operators General Insurance (2001), F.S.C.O. A99-000966, refd to. [para. 31].

Heredi v. Fensom et al. (2002), 289 N.R. 88; 219 Sask.R. 161; 272 W.A.C. 161 (S.C.C.), refd to. [para. 32].

Statutes Noticed:

Statutory Accident Benefits Schedule, Accidents on or after November 1, 1996, Reg. 403/96, sect. 2(1) [para. 3].

Authors and Works Noticed:

Clerk and Lindsell on Torts (18th Ed. 2000), ch. 2, generally [para. 25].

Fleming, J.G., The Law of Torts (9th Ed. 1988), p. 247 [para. 29].

Prosser, Dean, Handbook of the Law of Torts (4th Ed. 1971), pp. 263, 264 [para. 28].

Counsel:

Darcy R. Merkur, for the appellant;

Eric T. Sigurdson and Dwain V. Burns, for the respondent.

This appeal was heard on February 13, 2002, before Laskin, MacPherson and Simmons, JJ.A., of the Ontario Court of Appeal. Laskin, J.A., delivered the following decision for the Court of Appeal on August 13, 2001.