Herbison v. Lumbermens Mutual Casualty Co.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Citation: (2007), 368 N.R. 292 (SCC),2007 SCC 47
• Date: 11 December 2006

Herbison v. Lumbermens Mutual (2007), 368 N.R. 292 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.R. TBEd. OC.025

Lumbermens Mutual Casualty Company (appellant) v. Harold George Herbison, Mary Ann Herbison, and Jordan Daniel Herbison, Joseph Harold Herbison and Lydia Rachel Herbison, by their Litigation Guardian Harold George Herbison (respondents) and Insurance Bureau of Canada (intervenor)

(31079; 2007 SCC 47; 2007 CSC 47)

Indexed As: Herbison v. Lumbermens Mutual Casualty Co.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

October 19, 2007.

Summary:

Wolfe was driving to a designated deer hunting stand to meet his hunting party when he thought he saw a deer. It was before sunrise. He stopped and got out of his pick-up truck. He removed his rifle, loaded it and, seeing a flash of white in the headlights (which he concluded was the tail of a deer), he shot. Unfortunately, he hit another member of the hunting party, Herbison. Wolfe was found liable in negligence to Herbison and members of Herbison's family. Damages were assessed at $832,272.85. Wolfe was insured under a standard motor vehicle liability insurance policy issued by Lumbermens Mutual Casualty Company. The Herbisons sued Lumbermens, seeking indemnity under s. 258(1) of the Ontario Insurance Act on the basis that their losses arose "directly or indirectly from the use or operation" of Wolfe's truck within the meaning of s. 239(1) of the Act.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 685, dismissed the action. The Herbisons appealed.

The Ontario Court of Appeal, Cronk, J.A., dissenting, in a decision reported at 198 O.A.C. 257, allowed the appeal and ordered that Lumbermens indemnify the Herbisons in the amount of $832,272.85 plus post-judgment interest. The court held that Herbison's injury arose "directly or indirectly from the use or operation" of the insured truck within the meaning of s. 239(1) of the Insurance Act. The majority reasoned that the addition in 1990 of the phrase "directly or indirectly" to s. 239(1)(b) effectively removed the requirement of an unbroken chain of causation and it was sufficient if the use or operation of a motor vehicle "in some manner contributes to or adds to the injury". Cronk, J.A., in the dissent, concluded that not every circumstance or activity associated with the use or operation of a motor vehicle would engage s. 239(1) and that the negligent shooting "was an act independent of the ownership, use or operation of" Wolfe's truck. Lumbermens appealed.

The Supreme Court of Canada allowed the appeal. The court held that it was not enough to find that the use or operation of the tortfeasor's motor vehicle "in some manner contributes to or adds to the injury". While the court agreed with the Ontario Court of Appeal that the addition of the "directly or indirectly" language to s. 239 relaxed the causation requirement, it held that, nevertheless, some causation link had to be found and it had to constitute a link in an unbroken chain. The court agreed with the dissenting judgment of Cronk, J.A., that the source of Wolfe's liability to the Herbisons was a tort independent of the use and operation of his truck.

Insurance - Topic 5016

Automobile insurance - Compulsory government schemes - Liability coverage - "Use or operation" of motor vehicle - Wolfe was driving to a deer hunting stand to meet his hunting party when he thought he saw a deer - It was before sunrise - He stopped and got out of his pick-up truck - He removed his rifle, loaded it and, seeing a flash of white in the headlights (which he concluded was the tail of a deer), he shot - Unfortunately, he hit another member of the hunting party, Herbison - Wolfe was found liable in negligence to Herbison and members of Herbison's family - Damages were assessed at $832,272.85 - The Herbisons sought indemnity from Wolfe's automobile insurer (Lumbermens) on the basis that their losses arose "directly or indirectly from the use or operation" of Wolfe's truck within the meaning of s. 239(1) of the Ontario Insurance Act - The Supreme Court of Canada held that Herbison's injury did not arise "directly or indirectly from the use or operation" of the insured truck within the meaning of s. 239(1) - The court stated that "The questions are, firstly, whether the Herbison claim is in respect of a tort committed by Wolfe in using his motor vehicle as a motor vehicle and not for some other purpose and, secondly, whether there is an unbroken chain of causation linking the Herbison injuries to the use and operation of the Wolfe vehicle which is shown to be more than simply fortuitous or 'but for'. The first question is easily disposed of. Wolfe was using his vehicle for transportation, which is its usual and ordinary use. It is the second question (causation) that is the claimant's difficulty. Wolfe interrupted his motoring to start hunting" - The court concluded that the source of Wolfe's liability to the Herbisons was a tort independent of the use and operation of his truck.

Insurance - Topic 5016

Automobile insurance - Compulsory government schemes - Liability coverage - "Use or operation" of motor vehicle -  Wolfe was driving to a deer hunting stand to meet his hunting party when he thought he saw a deer - It was before sunrise - He stopped and got out of his pick-up truck - He removed his rifle, loaded it and, seeing a flash of white in the headlights (which he concluded was the tail of a deer), he shot - Unfortunately, he hit another member of the hunting party, Herbison - Wolfe was found liable in negligence to Herbison and members of Herbison's family - Damages were assessed at $832,272.85 - The Herbisons sued Wolfe's automobile insurer (Lumbermens), seeking indemnity on the basis that their losses arose "directly or indirectly from the use or operation" of Wolfe's truck within the meaning of s. 239(1) of the Ontario Insurance Act - The action was initially dismissed, but the Ontario Court of Appeal allowed an appeal and ordered that Lumbermens indemnify the Herbisons - The majority of the court held that Herbison's injury arose "directly or indirectly from the use or operation" of the insured truck within the meaning of s. 239(1) - The majority reasoned that the addition of the phrase "directly or indirectly" to s. 239(1)(b) effectively removed the requirement of an unbroken chain of causation and it was sufficient if the use or operation of a motor vehicle "in some manner contributes to or adds to the injury" - Cronk, J.A., dissenting, concluded that not every circumstance or activity associated with the use or operation of a motor vehicle would engage s. 239(1) and that the negligent shooting "was an act independent of the ownership, use or operation of" Wolfe's truck - Lumbermens appealed - The Supreme Court of Canada allowed the appeal - It was not enough to find that the use or operation of the tortfeasor's motor vehicle "in some manner contributes to or adds to the injury" - While the court agreed with the Court of Appeal that the addition of the "directly or indirectly" language to s. 239 relaxed the causation requirement, it held that, nevertheless, some causation link had to be found and it had to constitute a link in an unbroken chain - The court agreed with the dissenting judgment of Cronk, J.A., that the source of Wolfe's liability to the Herbisons was a tort independent of the use and operation of his truck.

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, dist. [para. 8].

Lefor v. McClure et al. (2000), 133 O.A.C. 160; 49 O.R.(3d) 557 (C.A.), dist. [para. 9].

Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; 32 N.R. 488, refd to. [para. 10].

Alchimowicz v. Continental Insurance Co. of Canada (1996), 37 C.C.L.I.(2d) 284 (Ont. C.A.), refd to. [para. 11].

Kangas v. Aetna Casualty & Surety Co. (1975), 235 N.W.2d 42 (Mich. C.A.), refd to. [para. 11].

Derksen et al. v. 539938 Ontario Ltd. et al., [2001] 3 S.C.R. 398; 277 N.R. 82; 153 O.A.C. 310; 2001 SCC 72, refd to. [para. 13].

Chisholm v. Liberty Mutual Group (2002), 163 O.A.C. 129; 60 O.R.(3d) 776 (C.A.), refd to. [para. 13].

Stevenson v. Reliance Petroleum Ltd., [1956] S.C.R. 936, refd to. [para. 13].

Vytlingam v. Farmer et al. (2007), 368 N.R. 251; 2007 SCC 46, refd to. [para. 14].

Statutes Noticed:

Insurance Act, R.S.O. 1990, c. I-8, sect. 239(1), sect. 258(1) [para. 6].

Counsel:

Mark O. Charron and Jaye E. Hooper, for the appellant;

Barry D. Laushway and Scott D. Laushway, for the respondents;

Alan L.W. D'Silva, Danielle K. Royal and Ellen M. Snow, for the intervenor.

Solicitors of Record:

Williams McEnery, Ottawa, Ontario, for the appellant;

Laushway Law Office, Prescott, Ontario, for the respondents;

Stikeman Elliott, Toronto, Ontario, for the intervenor.

This appeal was heard on December 11, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered by Binnie, J., in both official languages, on October 19, 2007.