Downer v. Personal Insurance Co.,

• Jurisdiction: Ontario
• Judge: LaForme,Lang,Pattillo
• Neutral Citation: 2012 ONCA 302
• Date: 17 February 2012
• Subject Matter: PRACTICE,INSURANCE
• Court: Court of Appeal (Ontario)

Downer v. Personal Ins. (2012), 291 O.A.C. 113 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. MY.012

Michael Downer (plaintiff/respondent) v. The Personal Insurance Company (defendant/appellant)

(C54313; 2012 ONCA 302)

Indexed As: Downer v. Personal Insurance Co.

Ontario Court of Appeal

Lang and LaForme, JJ.A. and Pattillo, J.(ad hoc)

May 9, 2012.

Summary:

Downer was physically assaulted by several unidentified assailants while parked at a gas station. He managed to put his car in gear and fled. As he was escaping, he heard something and thought that he might have ran over one of the assailants. After 17 months of paying him statutory accident benefits, Downer's automobile insurer took the position that he had not been involved in an "accident" within the meaning of s. 2(1) of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996. On August 3, 2001, the insurer advised Downer that it would not pay him further benefits and that it would be seeking a repayment of benefits paid in error. The insurer continued to pay the benefits until May 2002. Downer sued the insurer seeking, inter alia, a declaration that he was, and continued to be, entitled to benefits. The insurer filed a defence and counterclaim for the monies previously paid. Downer filed a reply and defence to the counterclaim, raising the issue of estoppel. The insurer moved for summary judgment seeking to dismiss the claim.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 4980, dismissed the motion, holding that Downer had been involved in an accident within the meaning of s. 2(1). The insurer appealed.

The Ontario Court of Appeal allowed the appeal in part, setting aside the Superior Court's declaration and declaring that the physical assault on Downer did not constitute an accident under s. 2(1). To that extent, the court granted the insurer summary judgment. The court dismissed the motion for summary judgment to the extent that Dower claimed entitlement to accident benefits based on psychological impairments arising from his evidence that he ran over someone during the incident. The question whether he was involved in an accident in that respect was a genuine issue requiring a trial, as were the issues that the Superior Court had not been asked to decide, such as repayment of benefits and estoppel. Downer could bring a motion in the Superior Court to amend the pleadings in accordance with the court's reasons.

Insurance - Topic 5016

Automobile insurance - Compulsory government schemes - Liability coverage - "Use or operation" of motor vehicle - Downer was physically assaulted by unidentified assailants while parked at a gas station - As he was fleeing in his car, he thought that he ran over one of the assailants - Downer's automobile insurer, after initially paying statutory accident benefits, concluded that Downer had not been involved in an "accident" within the meaning of s. 2(1) of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The insurer ceased paying benefits - Downer sued the insurer - The insurer counterclaimed for the benefits paid and moved for summary judgment - The motions judge dismissed the motion, holding that Downer had been in an accident within the meaning of s. 2(1) - The Ontario Court of Appeal allowed the insurer's appeal in part - The judge erred in concluding that the causation test was satisfied in relation to the physical injuries that were caused by the assault - He erred by referring to "ownership" and by failing to ask whether an intervening act outside the "ordinary course of things" resulted in the injuries - It was questionable whether the evidence supported the judge's inference that the assailants had attacked Downer to get his vehicle - In any event, the judge erred by relying on the attack's location and on the assailants' inferred motive as proving that there was a direct causal relationship between the injuries suffered during the attack and the vehicle's use or operation - The inference only supported the proposition that, but for Downer's use or operation of the vehicle, he would not have been assaulted - The "but for" test only served to eliminate factually irrelevant causes, but did not conclusively establish causation - It was insufficient that a vehicle was at the location of the injuries inflicted by tortfeasors or that it was somehow involved in the incident giving rise to the injury - Rather, its use or operation had to have directly caused the injury - The assault here was not a normal incident of the risk created by the car's use or operation - Downer's physical injuries were caused by an intervening act (the assault) - The court dismissed the appeal to the extent that Downer claimed entitlement to benefits based on psychological impairments arising from his evidence that he ran over someone - Such impairment could be a direct consequence of the use or operation of a vehicle - The issues of Downer's belief that he ran someone over and whether such belief caused him psychological injures, remained to be determined along with the other issues in dispute that were not raised on the summary judgment motion - See paragraphs 29 to 52.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Insurance - Topic 5016 ].

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - Downer sued his automobile insurer seeking, inter alia, a declaration that he was, and continued to be, entitled to benefits under the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The insurer counterclaimed for the benefits paid to Downer in error - Downer raised the issue of estoppel - The insurer's summary judgment motion was dismissed - The insurer appealed, asserting that, inter alia, the judge failed to address the estoppel issue - The Ontario Court of Appeal held that the argument was not properly raised on appeal - The parties had agreed that the motions judge would decide whether Downer had been involved in an "accident" within the meaning of s. 2(1) of the Schedule - Based on that agreement, the judge did not consider any of the other issues in dispute - It would be inappropriate for the court to decide a ground of appeal concerning an issue that was not argued before the motions judge - See paragraphs 26 to 28.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Practice - Topic 8825.6 ].

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; 127 D.L.R.(4th) 618, refd to. [para. 18].

Chisholm v. Liberty Mutual Group (2002), 163 O.A.C. 129; 60 O.R.(3d) 776 (C.A.), refd to. [para. 19].

Greenhalgh v. ING Halifax Insurance Co. (2004), 190 O.A.C. 64; 72 O.R.(3d) 338 (C.A.), refd to. [para. 19].

Vytlingam v. Farmer et al., [2007] 3 S.C.R. 373; 368 N.R. 251; 230 O.A.C. 364; 2007 SCC 46, refd to. [para. 22].

R.S. v. R.H. (2000), 139 O.A.C. 378; 52 O.R.(3d) 152 (C.A.), refd to. [para. 26].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 103 O.R.(3d) 1; 2011 ONCA 764, refd to. [para. 29].

Plan Group et al. v. Bell Canada (2009), 252 O.A.C. 71; 96 O.R.(3d) 81; 2009 ONCA 548, refd to. [para. 29].

Counsel:

Ryan M. Naimark, for the appellant;

John W. Bruggeman, for the respondent.

This appeal was heard on February 17, 2012, by Lang and LaForme, JJ.A., and Pattillo, J.(ad hoc), of the Ontario Court of Appeal. LaForme, J.A., released the following judgment for the court on May 9, 2012.