Martin v. 2064324 Ontario Inc. et al., (2013) 302 O.A.C. 50 (CA)

• Jurisdiction: Ontario
• Judge: Cronk, Epstein and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2013), 302 O.A.C. 50 (CA),2013 ONCA 19
• Date: 04 September 2012

Martin v. 2064324 Ont. (2013), 302 O.A.C. 50 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JA.006

Paul Martin and Cecile Martin (plaintiffs/respondents in appeal) v. 2064324 Ontario Inc. c.o.b. as Freeze Night Club, 2028260 Ontario Limited, c.o.b. as Freeze Night Club, John Doe, Robert Doe, 1078976 Ontario Inc. and Certas Direct Insurance Company (defendant/appellant in appeal)

(C54832; 2013 ONCA 19)

Indexed As: Martin v. 2064324 Ontario Inc. et al.

Ontario Court of Appeal

Cronk, Epstein and Pepall, JJ.A.

January 17, 2013.

Summary:

An insured alleged that he was assaulted outside of his vehicle by two unknown people in a parking lot, driven a few blocks away in his own vehicle, further assaulted, and ultimately abandoned by his attackers. He claimed against his auto insurer for no-fault statutory accident benefits (SABs) and indemnity for damages for personal injuries from his automobile insurer pursuant to s. 239(1) of the Insurance Act. The insurer denied the claims. The insured and his mother sued several parties, including the insurer. The insurer sought summary judgment dismissing the action against it.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 7145, dismissed the motion. The insurer appealed.

The Ontario Court of Appeal allowed the appeal in part. The court dismissed the insured's action against the insurer except for his SABs and indemnification claims concerning the alleged injury to his foot. The court declared that a genuine issue requiring a trial existed respecting the insured's claims relating to the injury to his foot.

Insurance - Topic 5016

Automobile insurance - Compulsory government schemes - Liability coverage - "Use or operation" of motor vehicle - An insured alleged that he was assaulted outside of his car by two unknown people in a parking lot, driven a few blocks away in his own car, further assaulted, and then abandoned by his attackers - The assault took various forms - The insured was pushed against the car, pepper sprayed, hit in the back of the head, hit his head on the trunk when he was forced in it, and later was struck in the chest, pepper-sprayed again and had his fingers broken - The car drove over his foot as the attackers drove off - He claimed against his auto insurer for no-fault statutory accident benefits (SABs) - The insurer denied the claim - The insured sued - The insurer sought summary judgment dismissing the action - The motion judge dismissed the motion, holding, inter alia, that injuries arose directly or indirectly from the use or operation of his automobile as contemplated in s. 239(1)(a) of the Insurance Act, thus triggering the policy's indemnity provisions - The Ontario Court of Appeal allowed the insurer's appeal in part - With the possible exception of the alleged injury to the insured's foot, the insured's injuries did not arise, directly or indirectly, from the use or operation of his vehicle, within the meaning of s. 239(1)(a) - The injuries arose from the assaults inflicted upon him by his assailants, rather than from the conduct of his assailants "as motorists" - The fact that some of the assaults occurred in, while others occurred near, the car did not satisfy the casual connection envisioned by the caselaw and was insufficient to trigger liability under s. 239(1)(a) - The involvement of the car was merely ancillary or fortuitous to the injuries inflicted - See paragraphs 66 to 79.

Insurance - Topic 5064

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - "Ownership, use or operation" of a vehicle - An insured alleged that he was assaulted outside of his car by two unknown people in a parking lot, driven a few blocks away in his own car, further assaulted, and then abandoned by his attackers - The assault took various forms - The insured was pushed against the car, pepper sprayed, hit in the back of the head, hit his head on the trunk when he was forced in it, and later was struck in the chest, pepper-sprayed again and had his fingers broken - The car drove over his foot as the attackers drove off - He claimed against his auto insurer for no-fault statutory accident benefits (SABs) - The insurer denied the claim - The insured sued - The insurer sought summary judgment dismissing the action - The motion judge dismissed the motion, holding, inter alia, that the insured was injured as a result of an "accident" as defined in s. 2(1) of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 - The Ontario Court of Appeal allowed the insurer's appeal in part - The motions judge erred in his causation analysis - With the possible exception of the injury to his foot, the use and operation of the insured's car could not be said to have directly caused his injuries - The assaults, except for the foot injury, had nothing to do with the car's use or operation - These assaults constituted intervening acts that could not reasonably be said to be part of the "ordinary course of things" associated with the car's use or operation - See paragraphs 20 to 65.

Cases Noticed:

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 108 O.R.(3d) 1; 2011 ONCA 764, leave to appeal granted (2012), 436 N.R. 399 (S.C.C.), refd to. [para. 14].

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. 22].

Chisholm v. Liberty Mutual (2002), 163 O.A.C. 129; 60 O.R.(3d) 776 (C.A.), refd to. [para. 25].

Greenhalgh v. ING Halifax Insurance Co. (2004), 190 O.A.C. 64; 72 O.R.(3d) 338 (C.A.), leave to appeal refused (2005), 338 N.R. 398; 206 O.A.C. 396 (S.C.C.), refd to. [para. 25].

Downer v. Personal Insurance Co., [2011] O.T.C. Uned. 4980; 107 O.R.(3d) 65; 2011 ONSC 4980, refd to. [para. 32].

Downer v. Personal Insurance Co. (2012), 291 O.A.C. 113; 2012 ONCA 302, leave to appeal refused (2012), 447  N.R. 390 (S.C.C.), refd to. [para. 40].

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. 69].

Citadel General Assurance Co. v. Vytlingam - see Vytlingam v. Farmer et al.

Herbison v. Lumbermens Mutual Casualty Co., [2007] 3 S.C.R. 393; 368 N.R. 292; 230 O.A.C. 395; 2007 SCC 47, refd to. [para. 70].

Russo et al. v. John Doe et al. (2009), 250 O.A.C. 379; 95 O.R.(3d) 138; 2009 ONCA 305, refd to. [para. 72].

Counsel:

Ryan M. Naimark, for the appellant;

Sergio Grillone, for the respondents.

This appeal was heard on September 4, 2012, before Cronk, Epstein and Pepall, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered by Cronk, J.A., on January 17, 2013.