Saturday, June 23, 2012

When are injuries "caused by an automobile, by the use thereof or by the load carried in or on an automobile"?

Westmount (City) v. Rossy, 2012 SCC 30 was just released. It holds that it is enough that an accident leading to injuries take place where someone is inside a motor vehicle (even if the accident is not directly related to the operation of the vehicle) to say injuries were "caused by an automobile, by the use thereof or by the load carried in or on an automobile". Similar language appears in many statutes across Canada. While arising under Quebec law the Supreme Court considered the rest of Canada and so the decision is of some persuasive value across the country.

Gabriel Anthony Rossy was killed when a tree fell on the vehicle he was driving in the City of Westmount. His parents and three brothers filed an action in damages against the City on the basis of civil liability under the Civil Code of Québec. They alleged that, as the owner of the tree, the City had failed to properly maintain it. The City moved to dismiss the action under arts. 165(4) and 75.1 of the Code of Civil Procedure. It argued that the injury resulted from an accident caused by an automobile and, therefore, that any compensation for personal injury was governed by the Automobile Insurance Act .

The Supreme Court considered case law from across Canada and concluded that simply being in a vehicle when the accident occurred was enough to trigger the Automobile Insurance Act exclusion.

Specifically, the Quebec Court of Appeal's decision in Productions Pram inc. v. Lemay, [1992] R.J.Q. 1738, holds that, in determining whether the Act applies, a court must not look for a traditional causal link between fault and damage as is routinely done in delictual or quasi-delictual civil liability cases. The principles from Pram are a useful guide to the interpretation of the Act and should be reaffirmed. Each case must be considered on its facts. However, at a minimum, an accident arising out of the use of a vehicle as a means of transportation will fall within the definition of "accident" in the Act and will therefore be "caused by an automobile" within the meaning of the Act. Any civil action in connection with the damage caused by that accident will be barred and victims will have to file a claim with the Société de l'assurance automobile du Québec. The vehicle's role in the accident need not be an active one. The mere use or operation of the vehicle, as a vehicle, will be sufficient for the Act to apply.

Although the vehicle may have been stationary or moving through an intersection, the evidence on the record is that Rossy was using the vehicle as a means of transportation when the accident occurred. This is enough to find that the damage arose as a result of an "accident" within the meaning of the Act and that the no-fault benefits of the scheme are triggered.


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