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Articles & Publications - Alberta, NWT & Nunavut CLC Member

April 2019

Throwing eggs from a car is an ordinary and well-known activity

Written by Nabeel Peermohamed, Brownlee LLP

In a recent case from the Ontario Supreme Court from March 22, 2019, the Court held that throwing eggs from a moving vehicle was an ordinary and well-known activity of automobiles, such that coverage was afforded for the resulting injury.

In Gilbraith v Intact Insurance Company, 2019 ONSC 1875, the front passenger of a motor vehicle threw an egg at the plaintiff, who was walking on the sidewalk. The plaintiff suffered an injury to her right eye which would likely result in a permanent impairment. The owner, driver, and occupants of the motor vehicle from which the egg was thrown, were not identified. As a result, the plaintiff commenced a claim against Intact Insurance Company in accordance with the Family Protection Coverage endorsement of the standard Ontario policy of automobile insurance, which was issued to the plaintiff's father.

Intact filed a summary dismissal application arguing the plaintiff's injuries did not arise directly or indirectly from the use or operation of an automobile. Specifically, Intact argued throwing an egg from a vehicle was not an ordinary or well-known use of an automobile.

The Court disagreed. Relying on authority from the Supreme Court of Canada and Ontario Court of Appeal, the Court ruled that the driver was transporting passengers and cargo (i.e. eggs). These were well-known activities involving the use of an automobile consistent with the case law. As a result, the Court ruled the plaintiff had established her injuries were caused directly, as well as indirectly from the use of an automobile.

...the Courts above implemented a wide interpretation of the "ordinary and well-known uses" of an automobile.

The Court relied on Russo v John Doe, 2009 ONCA 305, as well as Vytlingam (Litigation Guardian of) v Farmer, 2007 SCC 46.

In Russo, a drive-by shooting rendered the plaintiff a paraplegic. The Court of Appeal for Ontario held that the plaintiff's injuries were caused by the "ordinary use of an automobile when you had to the scenario that the vehicle is being used to carry guns and assailants to affect a shooting and to escape the scene".

In addition, the Court relied on Vytlingam, where the tortfeasors drove a motor vehicle to an overpass, exited the vehicle, and dropped a rock from the overpass onto traffic below, causing catastrophic injuries to the plaintiffs. The Supreme Court held that the test was met because the vehicle had been used to transport rocks.

While the case on its own would appear at first glance to have yielded an absurd result, looking at the binding precedent set by both the Ontario Court of Appeal and the Supreme Court of Canada, it appears the Courts above implemented a wide interpretation of the "ordinary and well-known uses" of an automobile. Drive-by shootings, pranks involving throwing rocks from an overpass, and finally throwing eggs are apparently an ordinary and well-known use of a vehicle which attracts coverage under a motor vehicle accident policy. If such an incident occurs in Alberta in the near future, we can expect reliance upon Vytlingam and Russo to rule coverage is afforded.
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