Canada Insurance Lawyer & Attorney : Michael Thomas of Harper Grey Law Firm : British Columbia, Vancouver

This was an application by the Applicant for a declaration that the Respondent had a duty to defend him under a commercial liability policy in an action commenced against the Applicant by the Plaintiff. The Applicant and Plaintiff were employees of a grocery store. The Plaintiff alleged that the Applicant placed him in a headlock and caused him to slip and fall, causing permanent injuries and damages.

The Applicant asserted that he was an insured under the grocery store’s commercial liability policy. The Respondent argued that the Applicant’s acts were captured by an exclusion under the policy which purported to exclude bodily injury or property damage caused intentionally by or at the direction of the insured.

The Respondent further argued that it was not necessary for the court to find intent to cause injury in order to engage the exclusion clause. Rather, it was enough if the insured’s acts were intentional.

The Applicant countered by citing a related case - ING Insurance Co. of Canada v. Mitsios, [2007] O.J. No. 338, - with the same fact pattern where the court found that the exclusion clause has been interpreted by the courts to require that the injuries be intentionally caused.

In that case the exclusion clause was under a homeowner’s policy and excluded “bodily injury or property damage by an intentional or criminal act or failure to act by any person insured by this policy.” The Court held that although the exclusion clause under the homeowner’s policy was different than the exclusion clause in the commercial liability policy in the case at bar, the reasoning was equally applicable. The Court found that a finding that the insured intended to cause the injuries was necessary to trigger the exclusion clause.

The Manitoba Public Insurance Corporation (MPIC) sought leave to appeal from a decision of the Automobile Injury Compensation Appeal Commission. Pursuant to s. 187(2) of The Manitoba Public Insurance Corporation Act, C.C.S.M., c. P215 leave may only be granted on a question of jurisdiction or of law. 

The insured had been transporting a new propane stove to a friend. She placed it on the back seat of her vehicle and drove to her friend's place. When she arrived, he was absent. She then drove to a park, some five miles outside of town, to walk her dogs. Upon returning to the vehicle, she sat in the driver's seat. Since the stove had been making a lot of noise on the trip to the park, the insured decided to reposition it. From the front seat, and with a lit cigarette in her mouth, she turned around to move the stove. While doing so, she was suddenly enveloped by fire and thrown from her vehicle. She sustained serious burns and other bodily injuries. She sought coverage under Part 2 of the Act for these injuries.

The claim for Part 2 benefits was denied by the MPIC case manager on the basis that an investigation had revealed that the proximate cause of her injuries was smoking in the presence of propane gas and not by an automobile or the use of an automobile. The Commission overturned the internal review officer's decision, finding that the insured's injuries were caused by the use of an automobile or a load. 

In its notice of motion seeking leave to appeal, MPIC identified the issue as follows: "Did the Commission err in law in its interpretation of Sections 70(a) and 71(1) of the Act by finding that [the insured] sustained a bodily injury caused by an automobile, by the use of an automobile or by a load?" MPIC submitted that this was a question of statutory interpretation and question of law. The relevant sections of the Act are as follows:

"70(1) In this Part,

"accident" means any event in which bodily injury is caused by an automobile;

…

"bodily injury caused by an automobile" means any bodily injury caused by an automobile, by the use of an automobile, or by a load, including bodily injury caused by a trailer used with an automobile…

Application of Part 2

71(1) This Part applies to any bodily injury suffered by a victim in an accident that occurs on or after March 1, 1994."

MPIC asked the court to consider how the decisions of Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47, and Citadel General Assurance Co. v. Vytlingham, 2007 SCC 46, might have impacted the Commission's decision.

The insured argued that the Commission, in reaching its decision, was simply applying the established legal principles developed in McMillan v. Thompson (Rural Municipality) (1997), 115 Man.R. (2d) 2, which applied Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405.

The court held that the two recent Supreme Court of Canada cases do not deal with no-fault insurance schemes. This the court said was confirmed by the Supreme Court of Canada in Citadel General. As such, the court found that the Commission had been right to apply the test formulated in McMillan which was as follows: "Were the respondent's injuries caused by (in the sense of being related to) the use of an automobile?" As such there was no issue of law to be appealed and the application for leave to appeal was denied.

The Insureds collected rare and expensive bottles of wine, which they kept in a temperature-controlled, architecturally designed wine cellar in their home.  The value of the collection was estimated at between $5,000,000 and $10,000,000. In October 2003, a municipal sewer backup caused a flood in their home that ruined much of the wine. The Insureds attempted to recover some of the loss on their homeowner's insurance policy, which was underwritten 50% by Canadian Northern Shield and 50% by Sovereign. The Insurers refused to cover the loss. Sovereign said it was not liable to indemnify the Insureds because the Insureds failed to disclose material facts relating to the value of the wine on the application. The Insureds brought a summary trial application seeking a declaration that Sovereign was not entitled to deny liability to the Insureds on the basis that the policy was properly voided for non-disclosure by the Insureds of material facts.

The Insureds' application was allowed. The onus of proof was on an insurer to prove that there was a misrepresentation or non-disclosure by the Insured of facts within his or her knowledge; that the misrepresentation was objectively material; and that the Insurer was induced by the misrepresentation to accept the risk at the stipulated premium. In this case, Sovereign failed to meet the onus of proving the alleged non-disclosure on a balance of probabilities. The Court found that Sovereign was told that there was a wine collection before entering into the contract. While Sovereign was not required to ask questions about every possible circumstance that could be material to the risk, the fact that it demanded an appraisal for the residence itself, but asked no questions about the value of the contents, was some evidence that it considered the value of the building to be far more relevant in determining the risk than the value of the contents. The fact that the Insureds asked for $1.5 million in contents coverage was only evidence that that was the amount of insurance they wished to purchase. It provided no reasonable basis for inferring that the Insureds believed the contents to be worth no more than $1.5 million.

In the result, the Court held that Sovereign was not entitled to void its participation in the policy on the basis of material misrepresentation or non-disclosure and was not entitled to refuse to indemnify the Insureds for the loss or damage they suffered from the October 16, 2003 flood on that basis.

Arruda was fatally stabbed after a collision involving his vehicle and one or two other vehicles. His vehicle had been brushed by the others and shot at by the occupants before the other vehicles left the scene. Arruda called 911. While waiting for the police arrive, Arruda stood behind his vehicle armed with a baseball bat. The other vehicle returned, its occupants armed with knives. Arruda was unable to defend himself and died at the scene before the police arrived. The occupants of the other vehicle were convicted of manslaughter in Arruda's death.

Arruda's insurance policy provided for the payment of benefits if his death arose directly, and independently from all other causes, from the use or operation of an automobile. At trial, the Court had found that Arruda's death was not caused by an accident arising from the use or operation of an automobile. The Court agreed that Arruda would not have died had he not been driving his vehicle on the night of the incident. However, the Court considered the temporal distance between the end of Arruda's driving and his death. The Court found that the attack was a clear intervening event between Arruda's use of his vehicle and his death, outside the ordinary use or operation of a vehicle, breaking the chain of causation. The Court further found that the use of the vehicle was not the dominant feature of Arruda's injuries, but was merely ancillary. The family of Arruda appealed this decision.

The Court of Appeal dismissed the appeal, finding that the Trial Judge was correct in finding that the case turned on causation. The phrase "directly and independently of all other causes" in the policy narrowed the broad scope of coverage. The chain of causation could not be broken for the policy provision to apply. In this case, no injury resulted or arose directly from Arruda's use of the vehicle. Arruda's injuries and death were caused by the assault, an independent and intervening cause, which precluded recovery under the policy.

The Insureds were entitled to disability benefits under their respective policies with the Insurer as a result of injuries which they had suffered. Disability benefits were paid to each of the Insureds, but the Insurer deducted from the amount of entitlement CPP benefits paid to the Insureds and the secondary or dependent child's CPP benefit that each of the Insureds received by virtue of having dependent children.  The Insureds claimed that the deduction of the dependent child CPP benefit was unlawful and that, as a matter of contract interpretation, the LTD policies did not authorize the offset of CPP benefits payable to their children. Alternatively, the Insureds argued that the offsets were contrary to public policy. They claimed damages for breach of contract and punitive damages.

The primary issue before the Court was to determine the nature of the relationship between private LTD insurance and disability benefits provided to contributors under the Canada Pension Plan (the "Plan").

Under the Plan contributors are entitled to certain benefits, and, in some circumstances, a disability pension. A disabled contributor's child is also entitled to receive a child benefit paid directly to him or her, or, in the case of a dependent child, paid to the disabled contributor. The disabled contributor's child benefit is established by s. 59 of the Plan. The Court observed that while the disabled contributor's child benefit belongs to the children, this is not determinative of the issue of whether the Insurer can offset the dependent child benefit from the amount payable to the Insured.  This issue, the Court said, is a matter of interpretating the insurance contract and a matter of private, not public, law.

The Court noted that the exception in s. 65 to the prohibition against assignment of a contributor's pension benefit was designed to recognize the integration of public and private insurance and that it implicitly endorses or accepts that insurers providing LTD benefits will offset CPP benefits. The exception encourages the insurer to make an overpayment pending a subsequent CPP disability pension that may be used to reimburse the insurer for the overpayment. 

The Court noted that an important factor in determining the cost of private LTD insurance is the amount of benefits, which are expected to be paid by the Insurer. The amount of expected claims is reduced by reducing the amount paid by the Insurer or deducting or offsetting other sources of income replacement received by the employee, including benefits paid under the Plan. The expert who testified on behalf of the Insureds indicated that "private insurance premiums in the aggregate are much lower than they would otherwise be because [the CPP disability benefit] is treated by private insurance as the first payor".

The Court reviewed the wording of the contracts of insurance in issue and found that the provisions allowing for an offset of CPP benefits were unambiguous such that there was no need to apply the contra proferentem rule to interpret their meaning. The Court held that the clear language of the policies authorized the offset of the disabled contributor's child benefit from the amount paid for LTD benefits. In doing so, the Court considered the factual background at the time when the insurance contracts were signed and specifically, the fact that the Insurers and those purchasing private LTD insurance understood that offsets of CPP benefits were an option that would reduce the price of the premium.

The Court rejected the argument that the CPP child benefit could not be an offset because it was not paid or payable to a disabled contributor, noting that for an offset, Clause 2(a) of Section 5 of the Policy required only that the disability benefit be payable under the Plan and did not specify to whom it was payable. The Court also rejected the Plaintiffs' argument that it was unfair to both the Claimant and his children to offset the children's CPP benefit against the private LTD insurance. In this regard, the Court noted that the offset is applied only when the child is an infant under the custody and control of the disabled contributor and the indirect beneficiary of the benefit is therefore the disabled contributor. When the child becomes adult, custody and control by a disabled contributor is at an end, as is the contributor's indirect benefit. When the indirect benefit ends, the offset also ends.

With regard to the argument that the offset provision is contrary to public policy and therefore illegal, the Court noted that the Plan does no regulate private insurance, and, rather, anticipates integration with and offsets in those private insurance policies. Further, the Court noted that the Federal Government had not acted on the Subcommittee's recommendation to make the offset of a child CPP benefit illegal.  The Court stated that declaring offsets illegal is a social policy decision yet to be made by Parliament.

In conclusion, the Court found that the Insureds had not established that it was contrary to public policy or contrary to the provisions in the Plan to limit the amount of LTD benefits by allowing an offset for the disabled contributor's child benefit.

Lincoln Canada Services LP ("Lincoln") leased a building from First Gulf Design Build Inc. ("First Gulf").  A sprinkler leak occurred and Lincoln sustained a loss of $72,153.17. This was less than the deductible under its insurance policy. Lincoln sought to recover those losses from First Gulf pursuant to the lease between the parties.

First Gulf argued that section 7.01 of the Lease, which required the Tenant to maintain insurance coverage for sprinkler leakage in the name of the Tenant and the Landlord and required that the policy contain a waiver of any subrogtation rights the Tenant's insurer may have against the Landlord, prevented Lincoln and its insurers from making any claim against it for damage which is covered by the required insurance policy. 

The Court found that the provision relieved the Landlord from the risk of liability for sprinkler leaks arising from the Landlord's negligence and brought that risk under the insurance coverage to be maintained by Lincoln. The Court found that the amount of the deductible was a matter between the party and its insurer and did not change the allocation of risk as between the parties to the Lease.

A number of sub-contractors supplied Ani-Wall with cement that was used to make concrete to construct the footings and foundations for the "Builders" whose homes suffered property damage when the footings and foundations failed. Ani-Wall was insured through a commercial general liability policy by Axa Insurance Company. Axa Insurance brought an Application to determine whether it is responsible for the sums that Ani-Wall is obliged to pay as compensatory damages due to the property damage under its commercial general liability policy. Axa Insurance took the position that Ani-Wall was not entitled to coverage because the prima facie coverage fell within three exclusions: Your Product Exclusion, Your Work Exclusion and the Rip and Tear Exclusion. The Court determined that it would be appropriate to determine whether appropriate insurance coverage was present in this case relying upon Bridgewood Building Corp. v. Lombard General Insurance Co. (2006), 266 D.L.R. (4th) 182 (Ont. C.A.)

In determining whether the "Your Work" exclusion applied, the Court relied upon Alie v. Bertrand & Frere Construction Company (2000), 30 C.C.L.I. (3d) 166 which states that the "Your Work" exclusion does not apply if the damaged work or the work out of which the damage arises, was performed by a sub-contractor. Thus, on a plain reading of the CGL policy the exclusion did not apply, since the concrete was supplied by sub-contractors.

Reagarding the "Your Product" exclusion clause Perell, J. noted that Ani-Wall's product was the footings and foundations created from the concrete supplied by the subcontractors. The "Your Product" exclusion clause would remove coverage for the cost of Ani-Wall's footings and foundations, but would not remove coverage for the cost of the damage to the house that went beyond the cost of the footings and foundations. However, since the cost of repairing and replacing the insured's defective product (the footings and foundations), approached the cost of repairing the third-party's damaged property (the homes), applying the "Work Product" exclusion in the manner suggested would be contrary to the reasonable expectation of the ordinary person as to the coverage purchased because the exclusion would subsume all of the coverage provided by the policy. Perell, J. noted that this would run contrary to the principle stated by the Ontario Court of Appeal in Weston Ornamental Iron Works Limted v. Continental Insurance Co., [1981] I.L.R. 1 - 1430 (Ont. C.A.). In addition, both Canadian and American courts have recognized that products incorporated into buildings are "real property" and therefore do not fall within the definition of "work product" exclusions.

In determining whether the the "Rip and Tear" exclusion applied, Perell, J. noted that the exclusion applied to actual expenses "incidental" to the intentional destrcution and removal of concreete products which are found to be defective. However, since the concrete products which are alleged to be defective are the same thing that is causing the property damage to the builder's properties and the homes, removing the incidental expenses would exclude coverage to the entire loss. Perell, J. determined that applying the "Rip and Tear" exclusion to these facts would be repugnant to the insurance coverage, and should not be enforced.

In the result, Axa's claim that the insurance coverage fell within the three exclusions was dismissed.

A van driven by the Insured, Colleen Morrison, collided with a vehicle driven by Mr. Squance, who was killed. Ms. Morrison, her two sons, and her husband were seriously injured. Mr. Squance was uninsured. For the purpose of this proceeding, it was agreed that Mr. Squance was entirely responsible for the accident and that Ms. Morrison was negligent in not ensuring that her son, Travis, was wearing his seatbelt at the time of the accident. Ms. Morrison’s negligence contributed to Travis’ injuries.

The Insurer accepted that by virtue of Ms. Morrison’s negligence, it was responsible under the liability coverage provisions of its policy for Travis’ damages up to the $1,000,000 limit in the policy. Travis was very badly injured and it was assumed that his damages would exceed $1,000,000. However, he did not claim any entitlement to further recovery from the Insurer under any part of the policy. The dispute was between the Insurer on one side and Ms. Morrison, her husband, and her other son on the other. These Insureds all suffered serious injuries in the accident and Mr. Squance was the only person who had any liability to them for their damages. The Insureds looked to their policy for coverage. Specifically, they claimed to be entitled to recover under the terms of their FPCE, which was attached to their policy. This Endorsement had a $1,000,000 limit. There was no dispute that the Insureds were all eligible “Claimants” and “insured persons” under the definitions of the FPCE. It was also accepted that Mr. Squance fell within the definition of an “inadequately insured motorist” for the purpose of the FPCE coverage.

The FPCE extended the coverage provided for in the main policy by giving the Insureds the same financial protection the Insureds would have if the at-fault driver had insurance in the same amount as the limit of the FPCE purchased by the Insureds. The Insurer took the position that the $1,000,000 in liability insurance available to Travis under Ms. Morrison’s policy had to be taken into account in determining its maximum liability under the FPCE. The Insurer contended that Ms. Morrison was jointly liable with Mr. Squance for the injuries of Travis and that for the purpose of the Endorsement, Travis was an eligible Claimant and Insured as defined in the FPCE, even though he had advanced no claim under that Endorsement. On the Insurer’s interpretation of the Endorsement, its maximum liability was $1,000,000 (the limits of the FPCE) minus $1,000,000 (the amount of motor vehicle liability insurance available to Ms. Morrison, a jointly liable motorist), for a net potential liability of $0. The Insureds’ calculation began with the same $1,000,000, that is, the limit of the FPCE coverage. The Insureds contended, however, that only the amount of Mr. Sqaunce’s liability coverage ($0), and not Ms. Morrison’s liability coverage ($1,000,000), should be deducted from the $1,000,000. The Insureds argued that Ms. Morrison was not “jointly liable” to the Insureds and that any liability coverage available to her in respect of Travis’ injuries was relevant in assessing the Insurer’s maximum liability to those specific Insureds.

The Court found that the Insurer’s approach to this Endorsement required that all Insureds under the policy who suffer bodily harm in the accident be treated as a group for the purpose of considering its maximum liability, even if one or more of the Insureds does not seek indemnification. The Court found that the endorsement imposed a single limit on the cumulative amount of the claims advanced by different Insureds who suffered injuries in the same accident. The maximum liability applies to the total claims made by the Insureds and not the individual claims. The Court could not find anything in the language of the Endorsement that would require that joint liability to an Insured who does not seek recovery can serve to reduce the maximum liability of the Insurer to those Insureds who do seek recovery. On the specific language of this Endorsement, the Court found that the question was not whether the Insurer’s policy has responded to claims under the liability provision in the policy, but whether any Insured under the policy was jointly liable for the damages suffered by the Insureds who are seeking coverage under the Endorsement. On the facts of this case, no Insured seeking indemnity under the FPCE was jointly liable to the Insureds.

The Insureds, Ontario residents, were driving along the Interstate 95 in North Carolina when their vehicle was struck by a large boulder dropped from an overpass by two “local thrill seekers…who were high on alcohol and drugs.” One of the Insureds received catastrophic injuries as a result of this crime, and his mother and sister suffered serious psychological harm. The tortfeasors were prosecuted, convicted, and received substantial prison sentences. The Insureds received “no-fault” benefits exceeding $1,000,000 from their Insurer. The issue before the Court was whether, in addition to no-fault statutory benefits, the tortfeasors’ use of a vehicle to transport both themselves and the boulders to the scene of the crime was sufficient to require the Insurer to pay out under the inadequately insured motorist coverage.

The Supreme Court of Canada determined that the appeal turned on: (1) whether the Insureds’ claim was in respect of a tort committed by the tortfeasors in using their motor vehicle as a motor vehicle and not for some other purpose and (2) whether there was an unbroken chain of causation linking the Insureds’ injuries to the use and operation of the tortfeasors’ motor vehicle. 

The Courts below held the Insurer liable on the basis of their interpretation of Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405. The Supreme Court of Canada found the reasons of Amos somewhat helpful but concluded that the decision is not a template to resolve indemnity coverage because the type of insurance and the coverage requirements in Amos did not require the presence of an at-fault motorist.

In Amos, the Insurer contested no-fault liability to its own Insured for statutory benefits payable “in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle”. The Insured had been attacked by a gang of strangers while he was motoring along an urban street in California. He was shot and seriously injured as he fled in his van away from the assailants, who were on foot.

In this appeal, the Court was not concerned with no-fault statutory benefits payable to an Insured. Moreover, in Amos, the focus was on the use of the Insured’s vehicle; the focus here was on the use of the tortfeasors’ vehicle. The Insurer was liable in Amos because entry into the Insured’s vehicle was the objective of the attackers and the Insured driving in his van was engaged in an “ordinary and well known” activity to which his vehicle could be put.

The Supreme Court of Canada affirmed that “the ordinary and well known activities to which automobiles are put” limits coverage to motor vehicles being used as motor vehicles. Thus, for example, someone who uses his car as a diving platform cannot expect to recover for his injuries under his motor vehicle insurance policy. In this case, the Court found that transporting rocks across the countryside was not the effective cause of the Insureds’ injuries.

The Supreme Court of Canada found that the Courts below erred in transferring, without modification, the discussion of causation in Amos into the different context of determining whether the liability established here on the part of the tortfeasors arose directly or indirectly out of the use of their vehicle. For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made. While the use of the tortfeasors’ vehicle “in some manner” contributed to their ability to commit the tort that caused the Insureds’ injuries, such contribution does not mean that the tort was committed in their capacity as at-fault motorists.

In Chan v. Insurance Corp. of British Columbia, [1996] 4 W.W.R. 734 (B.C.C.A.), a very similar case to Vytlingam, the Insured was injured while riding as a passenger in her boyfriend’s car when she was struck by a brick thrown from an oncoming vehicle that left the scene and was never identified. The British Columbia Court of Appeal considered whether the brick throwing could be “isolated” from the act of driving the tortfeasor’s car along a highway and accepted the trial judge’s view that it was not possible to do so.

Here, the Supreme Court of Canada suggested that if the analysis had focused on the elements of the tort that gave rise to the tortfeasor’s liability, the fact that the brick was thrown from a car rather than a horse does not qualify it as a motoring activity. The brick throwing was an intervening act. Here, the rock throwing was an intervening act. Thus, neither the tortfeasor in Chan nor the tortfeasors in the present appeal were at fault as motorists.

A hunter was driving to his designated hunting stand when he thought he saw a deer. It was before sunrise. He stopped and got out of his truck, removed his rifle, loaded it and, seeing a flash of white in the headlights - which he concluded was the tail of a deer about to take flight - he shot. Unfortunately, he hit another member of his hunting party, the Respondent to this appeal (the "Insured"). The Respondent sued the shooter’s motor vehicle Insurer, seeking it to satisfy his judgment against the shooter.

The Supreme Court of Canada determined that the appeal turned on: (1) whether the Insured's claim was in respect of a tort committed by the tortfeasor in using his motor vehicle as a motor vehicle and not for some other purpose and (2) whether there was an unbroken chain of causation linking the Insured's injuries to the use and operation of the tortfeasor's motor vehicle.

The Courts below held the Insurer liable relying on Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405. The Supreme Court of Canada found the reasons of Amos somewhat helpful but concluded that the decision is not a template to resolve indemnity coverage because the type of insurance and the coverage requirements in Amos did not require the presence of an at-fault motorist.

In Amos, the Insurer contested no-fault liability to its Insured for statutory benefits payable “in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle”.  The Insured had been attacked by a gang of strangers while he was motoring along an urban street in California. He was shot and seriously injured as he fled in his van away from the assailants, who were on foot.

In this appeal, the Court was not concerned with no-fault statutory benefits payable to an Insured. Moreover, in Amos, the focus was on the use of the Insured’s vehicle; the focus here was on the use of the tortfeasor's vehicle. The Insurer was liable in Amos because entry into the Insured’s vehicle was the objective of the attackers and the Insured driving in his van was engaged in an “ordinary and well known” activity to which his vehicle could be put.

The Supreme Court of Canada affirmed that “the ordinary and well known activities to which automobiles are put” limits coverage to motor vehicles being used as motor vehicles. Thus, for example, someone who uses his car as a diving platform cannot expect to recover for his injuries under his motor vehicle insurance policy. The tortfeasor’s use of his motor vehicle to transport him to his hunting stand was not the effective cause of the Insured’s injuries.

The Supreme Court of Canada found that the Court below erred in transferring, without modification, the discussion of causation in Amos into the different context of determining whether the liability established here on the part of the tortfeasor arose directly or indirectly out of the use of his vehicle. For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made. While the use of the tortfeasor's vehicle “in some manner” contributed to his ability to commit the tort that caused the Insured's injuries, such contribution does not mean that the tort was committed in his capacity as an at-fault motorist.

In Chan v. Insurance Corp. of British Columbia, [1996] 4 W.W.R. 734 (B.C.C.A.), a case very similar to Vytlingam, a case decided concurrently with this one, the Insured was injured while riding as a passenger in her boyfriend’s car when she was struck by a brick thrown from an oncoming vehicle that left the scene and was never identified. The British Columbia Court of Appeal considered whether the brick throwing could be “isolated” from the act of driving the tortfeasor’s car along a highway and accepted the trial judge’s view that it was not possible to do so.

The Supreme Court of Canada suggested that if the analysis had focused on the elements of the tort that gave rise to the tortfeasor’s liability, the fact that the brick was thrown from a car rather than a horse does not qualify it as a motoring activity. The brick throwing was an intervening act. In the present case the tortfeasor “interrupted his motoring to start hunting.” Thus, neither the tortfeasor in Chan, nor the tortfeasor in the present appeal were at fault as motorists.