On August 6, 2004, Can Hoang ("Mr. Hoang") drove the plaintiff, Christopher Hoang, and 3 other children, under the age of 12, from Scarborough to Toronto to spend the day at Centre Island. The plaintiff was six years old at the time the incident occurred. Mr. Hoang dropped the plaintiff and the three children off at an intersection and waited in his car to watch the children cross the intersection before finding a place to park. While the plaintiff was crossing, his hat blew off his head. The plaintiff ran further into the intersection to retrieve his hat and was hit by the co-defendant, Mr. Vicentini's vehicle. The plaintiff sustained serious injuries including severe brain damage. The plaintiff brought an action against Mr. Hoang, Mr. Vicentini, and Ford Credit Canada Leasing ("Ford Credit").
In the March 2012 trial, the jury found Mr. Hoang 100% liable. The jury stated that Mr. Hoang's negligence caused or contributed to the collision and to the plaintiff's injuries. The jury listed the particulars of Mr. Hoang's negligence as follows:2
- He failed to choose a suitable unloading area;
- He failed to ensure proper supervision of Christopher;
- Given the circumstances, he should not have entrusted the safety of group of children to a 12-year-old;
- He failed to provide clear safety instructions to all children, especially the 12-year-old entrusted with the plaintiff's safety; and
- He did not take sufficient measures to ensure the plaintiff's safety by confirming the 12-year-old was holding the plaintiff by the hand when walking as the plaintiff was not trained in road safety or by placing the plaintiff in a stroller.
The jury specified that Mr. Hoang unsafely unloaded the plaintiff at a busy intersection. On appeal, the plaintiffs' requested that the judgment dismissing the action against Mr. Vicentini and Ford Credit be set aside and liability be apportioned equally between those two defendants and Mr. Hoang and requested that the amount of damages be increased. Justice Brown upheld the jury verdict and dismissed the appeal on the issues of liability and damages.
Christopher and his mother commenced an action pursuant to section 258 of the Insurance Act against Mr. Hoang's motor vehicle insurer, The Personal Insurance Company ("The Personal"). The Personal took the position that the incident did not arise out of the use or operation of an automobile. The plaintiffs brought an action directly against The Personal to have the insurance monies payable under Mr. Hoang's motor vehicle liability policy paid in satisfaction of the judgement.3 The plaintiffs then brought a motion for summary judgment seeking an order requiring the insurer to pay the damages and costs the jury awarded against Mr. Hoang. Counsel for The Personal argued that Mr. Hoang's alleged negligence in the operation of his vehicle was not the direct cause of the injuries the child sustained.
There are two key legal principles that led to the defendant's liability and coverage position:
- Whether there is an unbroken chain of causation; and
- The existence of an intervening cause.4
In Vytlingam (Litigation Guardian of) v. Farmer, the Supreme Court of Canada indicated that in order to determine the issue of coverage, the question of whether the "chain of causation linking the claimed loss or injuries to the use and operation of the motor vehicle, which is shown to be more than simply fortuitous or ‘but for', is broken"5 must be answered. Accordingly, there is no coverage if there was an intervening act that caused the injury, "such as [an event] where the chain of causation originating with the insured's use of an automobile is severed by another person's intervening negligence."6
Counsel for The Personal argued that they did not have a duty to indemnify Mr. Hoang because his negligence did not arise "directly or indirectly from the use or operation of his automobile" and his automobile was merely incidental to the injury of the plaintiff.7 Counsel for The Personal attributed the injury to an intervening cause, the gust of wind that blew the plaintiff's hat into the intersection. Counsel The Personal stated that this case is akin to "cases where non-driving negligence occurs and causes injury after the tortfeasor was driven to the site of the incident."8
On the motion for summary judgment, Justice Morgan indicated that because the jury identified a portion of Mr. Hoang's negligence as "unsuitable choice of unloading area," they were clear in their determination that the fault lies with Mr. Hoang's use and operation of his motor vehicle. Justice Morgan rejected the defendant's argument and went on to say that "it was not Mr. Hoang's poor parenting that the jury found to be the cause of [the plaintiff's] injuries; it was his poor choice of unloading area, or, to put it another way, his poor driving that created the risk and that caused the plaintiff's injuries."9 The motion for summary judgment was granted based on this reasoning.
...he began to walk ...in the parking lot and was struck by a passing motor vehicle. |
By contrast, in Kopas v Western Assurance co,10 the plaintiff, a 5-year-old boy, Jordan Kopas ("Jordan") accompanied his father and grandfather in his father's vehicle, to a "Heritage Festival". Jordan's mother and grandmother were across the street in another car. Upon arrival, Jordan's father parked the vehicle in a parking lot and began to unload his belongings. During this time, Jordan also exited the vehicle and walked across the parking lot to watch a train pass by, unsupervised. When Jordan no longer wanted to watch the train pass, he began to walk back towards his father's vehicle in the parking lot and was struck by a passing motor vehicle.11 Justice Corbett was "satisfied that the "use and ownership" of a vehicle includes taking reasonable care to ensure that passengers may disembark safely."12 He discussed the requirements of "taking care" and stated that these requirements will depend on the circumstances. Naturally, these requirements will be higher when children are involved. He also explained that he need not decide when in the sequence of events the duty of care associated with disembarking passengers ends, as these "circumstances occur on a continuum, and it may be difficult to know where to draw the line".13
In the circumstances of this case, Justice Corbett noted that he could not see how the duty could extend past the immediate area of the parking lot. He specified that "there was nothing negligent about the way in which the car was being unloaded... [The child] was then safely 'landed' from the car." The court found in this instance that the motor vehicle driven by the child's father was only a means to arrive at a location, and was not causally connected to the injury. Justice Corbett mentioned that Jordan had safely exited the car. His Honour further explained that Jordan left the vicinity of the car when he went to watch the train, and when he returned, the duties owed to him by his father or mother, were no longer owed as "motorists", but as guardians of the child.14
The cases discussed above illustrate that the court will focus on how and where the unloading occurred and whether the accident was a part of a continuous chain of events. These cases will assist in determining whether an injury sustained after a passenger disembarks from a vehicle is causally connected to the use and operation of that motor vehicle.
The question of whether the "use and operation of a vehicle" contributed to an injury is one that the courts have dealt with on a frequent basis. The meaning of "use" has been considered by the judiciary for decades as unique scenarios continue to unfold. This is clearly demonstrated in cases involving disembarking passengers.
The plaintiff alleged that Fraser was negligent in opening the door. |
In Fraser,15 the plaintiff cyclist was approaching a vehicle from the rear and struck one of its doors while the passenger, Philip Fraser ("Fraser"), was opening it to exit the vehicle. The plaintiff commenced an action as against the owner/operator of the vehicle and Fraser for injuries resulting from the incident. The plaintiff alleged that Fraser was negligent in opening the door.
The owner/operator of the vehicle was insured by Co-Operators Insurance Association ("The Co-Operators"). The Co-Operators were already providing a defence to the owner/operator of the vehicle. The question then arose whether The Co-Operators had a duty to defend to Fraser. The Co-Operators refused to respond on Fraser's behalf on the ground that Fraser was not operating the vehicle. At the time of the incident, Fraser had comprehensive personal liability coverage through his homeowner's policy obtained through Abstainers' Insurance Company ("Abstainers'"). However, Abstainers' also refused to cover him, claiming that there was a "provision in its policy excluding claims resulting from the use or operation of an automobile."16 Fraser also had auto-insurance from Home Insurance ("Home"), who likewise refused to respond "on the ground that Abstainers' is responsible as the insurer of comprehensive coverage."17 Fraser brought an application to determine his rights under the policies.
At the hearing of the application, the Justice Reid determined that both The Co-Operators and Abstainers' policy had an obligation to respond. In regards to The Co-Operators obligations, the Judge referenced an excerpt from the owner's automobile insurance policy, which stated:
"The insurer agrees to indemnify the insured and, in the same manner, and to the same extent as if named herein as the insured, every other person who with his consent personally drives the automobile, or personally operates any part thereof, against the liability imposed by law upon the insured or upon any such other person for loss or damage arising from the ownership, use or operation of the automobile and resulting from bodily injury to or death of any person or damage to property."18
Justice Reid decided that Fraser was operating "any part thereof" (of the vehicle) when he opened the door that injured the plaintiff. He held that The Co-Operators had to respond in the circumstances of this case.
...the incident did not arise out of use and operation of a vehicle but it arose out of use or any part thereof. |
The Court also considered whether Abstainers' was obligated to defend and indemnify Fraser. The homeowner's policy contained an exclusion stating: "this policy does not apply to the ownership, use or operation by or on behalf of an insured of any automobile ..."19Justice Reid found that that the exclusion did not apply in this case because the incident did not arise out of use and operation of a vehicle but it arose out of use or any part thereof. Therefore, the Judge decided that the homeowner's policy should respond alongside The Co-Operators policy.
The Court of Appeal affirmed the decision of the trial court, finding that the responsibility to respond to the claim fell to the driver's auto-insurer. However, the Court of Appeal reversed the decision in part, stating that the homeowner's policy did not apply since the injury sustained was arising out of the use or operation of the automobile, which was specifically excluded in the homeowner's policy. Therefore the Court of Appeal determined that based on the exclusion in the homeowner's policy, that policy would not be required to respond to the claim, leaving the motor vehicle insurer to respond on its own.
The decision in Fraser demonstrates that there will always be a dispute about whether the homeowner's policy or the motor vehicle liability policy should respond in circumstances where a passenger is involved in an incident. Fraser is a cautionary tale highlighting that passengers actions can also trigger the driver/owner's insurance policy to respond. This often comes as a surprise to the motor vehicle liability insurer. Therefore, it is imperative for drivers to consider informing their passengers to be mindful of passersby when exiting their vehicle in order to avoid triggering their (the driver’s) automobile insurance policy in the event of an incident.
In the future, there will continue to be the same types of disputes deciding whether an intervening act exists and therefore, whether the chain of causation is broken. Hopefully, the cases discussed above will provide some guidance for these battles that will inevitably occur. Drivers must take care to ensure the reasonable safety of their passengers and any potential third parties who could be injured by passengers exiting their vehicles. All drivers, including Uber drivers, should be aware of the location of their drop-offs in order to avoid liability.
1 Hoang v The Personal Insurance Co., 2017 ONSC 3649, 279 ACWS (3) 624 [Hoang].
2 Hoang.
3 Hoang.
4 Vytlingam (Litigation Guardian of) v. Farmer, [2007] 3 SCR 373 (SCC) [Vytlingam] at para 12.
5 Ibid, at para 12
6 Vytlingam; LawUnion & Rock Insurance Co v Moore's Taxi Ltd. [1960] SCR 80 SCC 85.
7 Hoang at para 12.
8 Hoang at para 15.
9 Supra note 1 at para 20.
10 Kopas v Western Assurance co (2008), 67 CCLI (4th) 75 (Ont. SCJ).
11 Ibid.
12 Ibid, at para 20.
13 Ibid, at para 20.
14 Supra note 7 at para 44.
15 Fraser v Co-operators Insurance Assn et al, 1986 CarswellOnt 2155, 27 DLR (4th) 480 (ON CA).
16 Ibid.
17 Ibid at para 6.
18 Ibid at para 9.
19 Supra note 14 at para 11.
