2017 ONSC 6173, 2017 ONSC 6173

CITATION : Davis v. Aviva Canada Inc., 2017 ONSC 6173 COURT FILE NO.: 16-68068 DATE: 2017/10/16 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Susan Davis, Plaintiff -and- Aviva Canada Inc., Defendant BEFORE: C.T Hackland J. COUNSEL: Teena Belland, Counsel, for the Plaintiff James Brown, Counsel, for the Defendant HEARD: September 14, 2017 (Ottawa) ENDORSEMENT [ 1 ] The plaintiff seeks

summary judgment and a declaration that her injuries were sustained as a result of the “use and operation” of her automobile so that the accident which occurred on January 9, 2013 is an “accident”, as that term is defined in S. 3(1) of the Statutory Accident Benefits

Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS”). The defendant; by way of cross- motion seeks an order for

summary judgment dismissing the proceeding on the basis that the plaintiff did not incur her injuries in an “accident” within the meaning of the SABS. [ 2 ] The Facts are simple and not in dispute. Both counsel agree that the issue is suitable for decision by way of

summary judgment. [ 3 ] The plaintiff was injured when the hood of her vehicle collapsed on her while she was refilling her windshield washer fluid. The car was parked in her driveway, the engine was off and the plaintiff was not planning to go anywhere. It was her practise to check the vehicle’s fluid levels from time to time. [ 4 ] The plaintiff has a valid contract of motor vehicle liability insurance with the defendant including SABS coverage.

The plaintiff claimed for and was refused SABS benefits; the defendant taking the position that her injuries were not sustained in an “accident” within the meaning of the SABS schedule. [ 5 ] The issue is therefore: was this an “accident” within the meaning of SABS schedule. [ 6 ] The plaintiff claims that opening the hood of one’s car and topping up the windshield wiper fluid is a well-known and ordinary task to which automobiles are put and as such satisfies the “purpose test”.

For the reasons which follow I agree with this submission. [ 7 ] The term “accident” is defined in S.3 (1) of the SABS as “an accident in which the use or operation of an automobile directly causes an impairment…”. The cases have clarified that the requirement of “use or operation of an automobile” is known as the “purpose test”.

There is also the “causation test”, (“directly causes”), but counsel are in agreement that the causation test is met in this case. [ 8 ] Accordingly the question is whether the plaintiff was engaged in the use or operation of her car when she sustained her injuries. [ 9 ] Our Court of Appeal in the recent case of Economical Mutual Insurance Co. v. Caughy, 2016 ONCA 226 re-stated and clarified the purpose test in the SABS . In that case Hourigan J.A. stated: “This argument is misconceived. There is no active use component in the purpose test.

The sole questions for determination under that test in whether the incident in issue resulted “from the ordinary and well-known activities to which automobiles are put”. While the active use of an automobile (e.g. driving) would qualify under this test, there is no requirement that the vehicle be in active use.” [ 10 ] Hourigan J.A. quoted with approval the guidance with respect to the scope of the purpose test found in the reasons of Binnie J. in Citadel General Insurance Co. v.

Vytlingam (2007), SCC 46 at para 19: “Secondly, and in any event, the appellant insurer’s argument overstates the scope of the Amos purpose test. The “ordinary and well- known activities to which automobiles are put” limits coverage to motor vehicles being used as motor vehicles, and would exclude use of a car as a diving platform (as above) or retiring a disabled truck to a barn to store dynamite (which explodes), or negligently using the truck as a permanent prop to shore up a drive shed (which collapses, injuring someone). In none of these cases could it be said that the tortfeasor was at fault as a motorist.

In none of these cases could it be said that the motor vehicle was being used as a motor vehicle. That is the sort of aberrant situation that the Amos purpose test excludes, and nothing more. Here, as in Amos , it is the causation test that did the work, not the purpose test”.

[ 11 ] I accept and agree with the plaintiff’s position in the present case that opening the hood to check the level of the windshield washer fluid is one of the “ordinary and well known activities to which automobiles are put”. This is all that is required to satisfy the purpose test. Indeed, in the Caughey decision the plaintiff was injured when he tripped over a parked motorcycle in the dark. [ 12 ] The defendant submitted that what the plaintiff was doing in this case was maintaining or repairing her vehicle and therefore her actions did not involve the “use or operation” of her vehicle.

Counsel argued that repair and maintenance is something one may do to a vehicle but is not use or operation of a vehicle. [ 13 ] In my respectful opinion the suggested distinction between repair and maintenance as doing something “to a vehicle”, verses use and operation of a vehicle, is not determinative. Caughey reminds us that active use of the vehicle is not a requirement and that the relevant question is whether the incident arose from the ordinary and well known activities to which automobiles are put.

I view routine maintenance like checking and topping up fluid levels, checking tire pressure and filling the gas tank as satisfying the purpose test. [ 14 ] On the other hand these cases turn on their own facts and no doubt some accidents arising out of auto repairs, depending on the venue and other surrounding circumstances, could well fall outside of the parameters of “ordinary and well known activities to which automobiles are put”. This however is not such a case. [ 15 ] In

summary, the plaintiff is granted a declaration of entitlement to the claimed SABS benefits and the defendant’s cross- motion to have the action dismissed, is itself dismissed. Costs to the plaintiff are fixed in the sum of $8,000 inclusive of disbursements and HST. The Honourable Mr. Justice Charles T. Hackland Date: October 16, 2017 CITATION : Davis v. Aviva Canada Inc., 2017 ONSC 6173 COURT FILE NO.: 16-68068 DATE: 2017/10/16

ONTARIO SUPERIOR COURT OF JUSTICE RE: Susan Davis, Plaintiff -and- Aviva Canada Inc., Defendant BEFORE: C.T Hackland J. COUNSEL: Teena Belland, Counsel for the Plaintiff James Brown, Counsel for the Defendant ENDORSEMENT C.T Hackland J. Released: October 16, 2017