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Egg on your face - you may have a claim

Case Comment: Gilbrairth v. Intact Insurance

Howard Borlack
Howard Borlack,
Partner

Theomarcus Giannou
Theomarcus Giannou,
Associate Lawyer

April 2019

by Howard Borlack and Theomarcus Giannou

In Gilbraith v. Intact Insurance Company,1 the Ontario Superior Court of Justice offered clarification on the degree of assistance an expert report submitted as an attachment to a solicitor's affidavit can provide in a summary judgment motion. The Court also determined whether the throwing of an object out of a moving vehicle classified as an intervening act sufficient to break the causative link between the plaintiff's injuries and the use and operation of a motor vehicle. This case is significant as it introduces unique analysis that can be used to attribute more injuries to the use and operation of an automobile as well as provide an additional tool to defend a summary judgment motion.

The Facts

The plaintiff was a pedestrian who was struck in the eye with an egg that was thrown by the front passenger in a motor vehicle travelling in the opposite direction. The car and its occupants remain unidentified. The plaintiff sustained an injury to her right eye that will likely permanently impair her vision.

The plaintiff commenced a claim against her own insurance company, Intact, alleging the incident occurred from the use or operation of an automobile by an inadequately insured motorist. The plaintiff also made a claim against the Superintendent of Financial Services seeking the mandatory uninsured automobile coverage for damages occasioned by an unidentified motor vehicle when the plaintiff is not insured.

Intact brought a summary judgment motion seeking dismissal of the plaintiff's action alleging that the plaintiff's injuries did not arise directly or indirectly from the use or operation of an automobile and thus there is no genuine issue requiring a trial.

A secondary issue arose when the plaintiff attached an expert report to the affidavit of her solicitor for the motion. Intact submitted that the expert report was not filed in accordance with the Rules and was thus inadmissible for the truth of its contents because it is hearsay.

Principles for Expert Affidavit Evidence

Typically, when a party seeks to adduce expert evidence on a summary judgment motion, the evidence of the expert must either be filed with an affidavit of the expert outlining their opinions or through an affidavit of the expert attaching his report.2

Case law has established that the failure to adhere to this rule is not fatal to the party seeking to rely on the report.3 The report can still be used, not for the truth of its contents, but to demonstrate that evidence exists on the issue that would establish whether there is a genuine issue for trial. The alternative of ignoring the report entirely would result in overlooking the reality of the situation.

Application to the Case

... the speed of the vehicle would have impacted the speed of the egg and increased the risk of the plaintiff suffering injury.

In this case, the report addresses whether the plaintiff's injury arose directly or indirectly from the use or operation of a motor vehicle. The report finds that the speed of the vehicle would have impacted the speed of the egg and increased the risk of the plaintiff suffering injury. Sosna J. opted to admit the report on the basis that it is "some evidence" to consider in determining whether there is a genuine issue requiring a trial but not for the truth of its contents.4

Principles for Injuries Stemming from the Use or Operation of an Automobile

There are two tests that the court uses to determine this issue. The first is the Purpose Test which asks if the incident occurred in the course of the ordinary and well-known activities of automobiles.5

The second is the Modified Causation Test which asks if there was an unbroken chain of causation linking the claimed loss or injury to the use and operation of the motor vehicle, which is shown to be more than simply fortuitous or ‘but for'?6

Application to the Case

Courts in the past have determined that an incident can meet the purpose test when the automobile has been used to transport passengers and items from one place to another. In this case, the driver was transporting passengers and egg(s) (cargo). These are well-known activities involving the use of an automobile. On that basis, Sosna J. found that the incident met the purpose test and occurred in the course of the ordinary and well-known activity of motor vehicles.7

With respect to the modified causation test, Intact argued the throwing of the egg by a passenger was an intervening act that broke the chain of causation between the use of the automobile and the injuries. The Court was referred to cases such as Russo v. John Doe where the plaintiff sustained injuries as a result of being shot by an errant bullet in a nearby drive-by shooting.8 In Russo, the court held that her injuries arose from the shooting and not from the use or operation of the motor vehicle. However, Sosna J. distinguished Russo from the present case as he found that the automobile contributed to and enhanced the impact of the wrongful act. Specifically, the speed of the vehicle imparted kinetic energy into the egg, absent which, the plaintiff would not have suffered injuries to the extent that she did.9 The motor vehicle was not just a delivery system which created an opportunity as in Russo, but rather, it played an active and material role in contributing to the plaintiff's injuries. Therefore, there is a chain of causation linking the claimed loss or injuries to the use and operation of the motor vehicle, which is more than simply fortuitous or incidental. The driver of the vehicle was also independently negligent for failing to stop the vehicle or slow it down to mitigate the effect the vehicle had on the egg.

Conclusions and Implications

This case opens the door to more plaintiff injuries being declared to arise out of the use and operation of a motor vehicle. Independent of the unique fact scenario, counsel must be wary of this expanded class resulting in exposure on insurers. Additionally, an expert report can still be utilized to successfully defend a summary judgment motion despite the court not admitting it for the truth of its contents. Although it's never wise to not comply with the rules, the report can be submitted to demonstrate that there is a genuine issue requiring trial and counsel should not hesitate to exploit that opportunity.


  1. 2019 ONSC 1875 [Gilbraith].
  2. Sanzone v. Schechter, 2016 ONCA 566 at para 16.
  3. Gilbraith, supra note 1 at para 23.
  4. Ibid at para 27.
  5. Ibid at para 33.
  6. Ibid.
  7. bid at para 43.
  8. 2009 ONCA 305 [Russo].
  9. Gilbraith, supra note 1 at para 61

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