Plante v Darling, 2023 ABKB 335

Court of King’s Bench of Alberta Citation: Plante v Darling, 2023 ABKB 335 Date: 20230602 Docket: 1701 14597 Registry: Calgary Between: Brodie Daniel Plante Plaintiff - and - Alex Darling; Litigation Representative of the Estate of Verna Colleen Baptiste, deceased and John Doe; Executor of the Estate of Verna Colleen Baptiste, decease and The Administrator of the Motor Vehicle Accident Claims Act Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice G.H. Poelman _______________________________________________________ I. Introduction [ 1 ] A

summary trial was held to determine two issues arising out of a tragic accident that occurred on October 1, 2015. [ 2 ] Ms. Baptiste, whose vehicle had run out of gasoline, was attempting to wave down assistance when she was struck and killed by a motor vehicle operated by Mr. Plante. Mr. Plante seeks damages for “cognitive disturbances, depression and anxiety,” and noted

Ms. Baptiste in default. Following the required procedural steps, the Administrator designated under the Motor Vehicle Accident Claims Act , RSA 2000, c. M-22 , became involved and filed a statement of defence. [ 3 ] This trial proceeded pursuant to a May 16, 2022 order to determine whether Mr. Plante’s injuries are covered by the Motor Vehicle Accident Claims Act and whether his claim is barred by the Limitations Act , RSA 2000, c. L-12 . II. Facts A. Evidence [ 4 ] The facts are set out in detail in an agreed statement of facts and Mr. Plante’s affidavit. Mr.

Plante was cross-examined on his affidavit and the transcript forms part of the evidence. [ 5 ] The facts are not disputed on any material points. Thus, they may be briefly stated. B. Accident [ 6 ] Mr. Plante was driving a pickup truck, towing a trailer containing a jeep, at about 10:00 p.m. on October 1, 2015. He was by occupation a driver but on this occasion was assisting a friend in moving personal possessions. He was travelling southbound on Highway 22, coming from Cochrane and Highway 1. [ 7 ] Ms.

Baptiste had been driving a van northbound on Highway 22 towards Morley when, about two kilometres north of the intersection with Highway 8, her vehicle ran out of gasoline. She parked on the east (north-bound) shoulder of Highway 22 and activated her four-way hazard lights. Leaving her passenger in the vehicle, she left with the intention of obtaining assistance. [ 8 ] As Mr. Plante was travelling southbound on Highway 22, he saw Ms. Baptiste’s parked vehicle with its hazard lights. He thought it may have broken down or run out of fuel and slowed his speed of travel because pedestrians could be in the vicinity.

After passing the vehicle, he noticed what appeared to be a person with hand raised on his right side from the southbound shoulder. He swerved hard to his left but was unable to avoid a collision at this point of his right passenger-side mirror. [ 9 ] Ms. Baptiste was killed in the collision. Her vehicle was about forty metres north of where her body was found. Toxicology reports indicated that her blood/ethanol concentration exceeded three times the legal limit. C. Mr. Plante’s Injuries and Treatment [ 10 ] On October 6, 2015, Mr.

Plante attended a medical clinic to obtain a work absence letter and address sleeping difficulties. He was referred for psychological treatment which, as he recalls, began with a November 3, 2015 attendance with a psychologist who diagnosed him with post-traumatic stress disorder and related psychological symptoms. [ 11 ] In the interval between October 6 and November 3, Mr. Plante had difficulties sleeping, anxiety issues and other disturbances. D. Procedural History [ 12 ] Mr. Plante contacted a lawyer, whose name he cannot recall, in the fall of 2016 to discuss the accident and the problems he was having.

He was advised that he did not have a claim. [ 13 ] His next interaction with legal counsel occurred when he was served with a statement of claim from Ms. Baptiste’s estate. Discussions with the lawyers appointed by his liability insurer led him to file a statement of claim on October 31, 2017. Ms. Baptiste’s estate was noted in default on September 17, 2018, following which the Administrator filed a defence. [ 14 ] On May 16, 2022, a

summary trial was directed to determine two issues:

a) Did Mr. Plante’s injuries arise from the use or operation of a motor vehicle pursuant to the Motor Vehicle Accident Claims Act ?

b) Is Mr. Plante’s claim statute barred by the Limitations Act ? III. Administrator’s Liability A. General Principles [ 15 ] The Administrator’s involvement results from Ms. Baptiste not having motor vehicle liability insurance. After the noting in default, the Administrator defended the action “pursuant to s. 4(5) of the Motor Vehicle Accident Claims Act ” (statement of defence, para 1).

As observed in Zukowski v O’Bee , 2010 ABQB 421 , the Act provides compensation to persons who suffer damage in a motor vehicle accident caused by or contributed to by uninsured or unknown drivers and owners of vehicles: paras 31 and 53. [ 16 ] The relevant provisions of the Act are the following: 4(1) When, in an action for damages for bodily injury to or the death of a person arising out of the use or operation within Alberta of a

motor vehicle, a plaintiff notes a defendant in default, the plaintiff shall forthwith serve on the Administrator a notice in writinginforming the Administrator of the facts, and the plaintiff shall not take the next step in the action until 30 days after the service of thenotice. 5(1) When a person recovers in a court in Alberta a judgment for damages for bodily injury to or the death of a person arising out of theuse or operation within Alberta of a motor vehicle, the person may, on the determination of all proceedings, including appeals, apply tothe Administrator in the prescribed form for payment under this

section of the amount of the judgment or of the amount of the unsatisfiedportion of it. [17] The accident for which Mr. Plante claims damages occurred when Ms. Baptiste was not in her vehicle. Thus, the issue iswhether Mr. Plante’s action is one for “damages for bodily injury to . . . a person arising out of the use or operation . . . of a motorvehicle.” [18] The term “arising from the use or operation of a motor vehicle” appears in various motor vehicle insurance contexts, such asliability policies and underinsured endorsements on an owner’s policy. The cases interpreting the phrase in those contexts are applicableto

interpretation of the Act, because it is meant to stand in the place of a motor vehicle liability policy where damages are caused by anuninsured or unknown motorist: Zukowski, paras 53 and 54. [19] The governing approach to

interpretation of the phrase is set out in Vytlingam (Litigation Guardian of) v Farmer, 2007 SCC46, and Herbison v Lumbermens Mutual Casualty Co, 2007 SCC 47.

The determination of coverage is focused on the tortfeasor’soperation of a motor vehicle: Vytlingam, para 12; Herbison, para 12; and Zukowski, para 28. [20] The test to determine whether there is coverage involves two parts, which Vytlingam and Herbison carried over from Amos vInsurance Corp of British Columbia, (SCC), [1995] 3 S.C.R. 405 (a claim by an injured party against his own insurer forno-fault statutory benefits). [21] The proper approach is first to ask whether the defendant’s vehicle was being put to an ordinary and well-known activity atthe time of the occurrence (the purpose test); and second, whether there was an unbroken chainof causation linking the plaintiff’s injuriesto the use and operation of the tortfeasor’s vehicle which is more than simply fortuitous or “but for” (the causation test): Zukowski, para55.

B. Purpose Test [22] The key to understanding the purpose test appears from examples Vytlingam uses that would not meet the test. Thus,“ordinary and well-known activities” would exclude use of a car as a diving platform, retiring a disabled truck to a barn to storedynamite, or negligently using the truck as a permanent prop to shore up a drive shed – all “aberrant situations”: Vytlingam, paras 12 and19. [23] Vytlingam involved tortfeasors who transported boulders in a vehicle to an overpass and then through them over, seriouslyinjuring occupants of a vehicle travelling the highway below.

The purpose test was met, because the use of a vehicle for transportingrocks to the scene fell within the scope of ordinary and well-known activities of motor vehicles: para 33. Likewise, in Herbison, thedefendant had used his truck to drive to a hunting site, a well-known and ordinary use of a vehicle: para 12. [24] There are other instructive examples.

In Wawanesa Mutual Insurance Company v Insurance Corporation of British Columbia,2021 BCSC 595, a defendant’s attempt to straighten a metal plate on a steering column by striking it with a sledgehammer – causing it tofly off and hit an observer – met the purpose test. However inadvisable the method, repair “was an ordinary and well-known activity towhich vehicles are put and was directly related to the [vehicle’s] driveability”: para 67. [25] I conclude that the purpose test is satisfied in this case. Ms. Baptiste’s vehicle was used for transportation, not some ancillarypurpose unrelated to its ordinary use. C.

Causation Test [26] In the governing cases of Vytlingam and Herbison, coverage was not established even though the purpose test was satisfied.There must be more than merely having used a motor vehicle for a typical purpose. “For coverage to exist, there must be an unbrokenchange of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made”: Vytlingam,para 25. [27] Thus, in Vytlingam, the tort consisted of dropping rocks from an overpass, an intervening event wholly severable from the useof the motor vehicle; the fact that the vehicle was used to carry the rocks had nothing to do with liability: paras 34-36.

The defendant inHerbison had interrupted his motoring to start hunting, breaking the chain of causation: para 12. The fact that “but for” the use of avehicle a tort would not have occurred was insufficient to satisfy the causation test in both cases: Vytlingam, para 12; Herbison, para 12. [28] Instead, the question is whether a tortfeasor’s conduct after using her vehicle can be considered a not abnormal incident of therisk created by use of the vehicle or is likely to arise in the ordinary course of things: Herbison, para 13.

The court used the facts in Lefor(Litigation Guardian of) v McClure (2000), (ON CA), 49 O.R. (3d) 557 (Ont. C.A.), to illustrate the distinction. Thedefendant had parked her car (leaving the engine running) and exited with two children to cross the street to a relative. Her daughter wasstruck and injured by an approaching vehicle.

In an action on behalf of the daughter of the driver, it was held that there was a clear nexusbetween the use and operation of the vehicle and the child’s injuries; the accident occurred as a result of conveying passengers from oneplace to another: Herbison, para 13; Lefor, para 8. [29] In my view, there was an unbroken chain of causation between Ms. Baptiste’s normal use of her vehicle and her subsequent

activities which led to the accident. Motorists looking for assistance after running out of fuel are within the expectation of users of ahighway. This can be seen by Mr. Plante’s reducing speed and looking for pedestrians when he saw the parked vehicle, with hazardflashers, on a shoulder of the highway. Further, clearly Ms. Baptiste had not abandoned the use of her vehicle, evidenced by activatingher hazard lights, leaving a passenger in the vehicle and being found about forty metres from her vehicle.

She was doing what wasnecessary to continue the use of her vehicle, namely, precuring assistance to get fuel. [30] These facts distinguish the case of Greenhlagh v ING Halifax Insurance Co (2004), (ON CA), 72 O.R.(3d) 338 (Ont. C.A.), referred to in Vytlingam (para 26), where a driver left her stranded vehicle, attempted to walk back to a main road,became lost, fell into a river and suffered exposure and frostbite. [31] In conclusion, I find that the injuries to Mr. Plante arose from Ms. Baptiste’s “use or operation of a motor vehicle” within themeaning of ss. 4 and 5 of the Act. IV. Limitations Act Defence A.

Principles [32] The Administrator pleaded the Limitations Act as a defence. Thus, it is “entitled to immunity from liability” if Mr. Plante, asclaimant, did not a seek remedial order within two years of when he knew or ought to have known that he suffered an injury, attributableto the conduct of the defendant, and that it warranted the bringing of a proceeding: s. 3(1). [33] Mr.

Plante’s statement of claim was filed on October 31, 2017, more than two years after October 1, 2015 (date of accident).Unlike earlier legislation that calculated the limitation period from when the cause of action arose, the Limitations Act incorporates the“discoverability” principle first ennunciated in Central Trust Co v Rafuse, (SCC), [1986] 2 S.C.R. 147. [34] The discoverability rule is embodied in the provision that the two-year period runs from the date “the claimant first knew, orin the circumstances ought to have known” each of the three elements of (1) injury, (2) attributable to the defendant and (3) warranting aproceeding.

It is a “restrictive subjective/objective approach” employing an objective test that must be applied having regard to aclaimant’s personal circumstances: McFaul v Ranch-Lewchuk, 2015 ABQB 706, para 36; HOOPP Realty Inc v Emery Jamieson LLP,2020 ABCA 159, paras 44-45. B. Findings [35] Mr. Plante’s personal characteristics and the circumstances of the accident make this case different from many motor vehicleaccident tort claims. [36] As described by his counsel, Mr. Plante was not someone with notable education or sophistication – although he had made areasonable living as a driver for some years.

He had a limited support system and no family doctor when the accident happened. [37] Further, the type of accident did not suggest to him that he could be a plaintiff. When a motor vehicle driver strikes and kills apedestrian and suffers no physical injuries himself, it is not immediately obvious that he has a claim. Usually it is the pedestrian whosues (as happened here, although Ms. Baptiste’s claim was later settled and discontinued). [38] Mr. Plante attended a medical clinic on October 6, 2015.

He spoke to the attending physician about sleeping difficulties, theaccident and needing an absence-from-work letter. For five weeks, he was “running on autopilot, having difficulty sleeping, anxiety,difficulties, following through on thoughts and maintaining any social interaction.” [39] On November 3, on a referral from his October 6 appointment, he attended a psychologist.

As stated in his affidavit, he wasthen made aware that his primary issue was “PTSD associated with the trauma of the Accident.” He has no recollection of anypsychological consultations before November 3, despite some medical file notes that may indicate the contrary. [40] On December 9, 2015, he applied for employment insurance benefits, the first step that indicated he had recognized his injurywas significant and of more than a transitory nature. [41] Properly and fairly, the Administrator tested Mr. Plante’s evidence by cross-examination but, in its written and oralsubmissions, has not disputed these facts.

It concedes that Mr. Plante suffered a serious psychological injury as a result of the accident. Iconclude that at least as of October 31, 2015, two years before the statement of claim was filed, Mr. Plante (in the words of his counsel)was not aware that he had PTSD symptoms, had no means of knowing that these were caused by the accident, and could not know thatthese injuries would warrant the bringing of a proceeding against Ms. Baptiste’s estate. [42] Therefore, I find that the Administrator is not entitled to immunity from liability by virtue of Mr. Plante’s claim being filedout of time. V.

Summary of Conclusions [43] For the foregoing reasons, I conclude the following on the issues directed for

summary trial:

a) Mr. Plante’s injuries arose from the use or operation of a motor vehicle as set out in the Motor Vehicle Accident Claims Act; and

b) Mr. Plante’s claim is not barred by the Limitations Act.

[ 44 ] The parties may

schedule a further appearance to address any matters arising from this judgment on which they cannot agree. Heard on the 20 th day of April, 2023. Dated at the City of Calgary, Alberta this 2 nd day of June, 2023. G.H. Poelman J.C.K.B.A. Appearances: David Corrigan, K.C. and Sean Manery for the Plaintiff Colin Roberts for the Administrator