Hoang v. The Personal Insurance Co, 2017 ONSC 3649

Coverage decision about “use or operation of an automobile”

Released June 13, 2017 | Full Decision [CanLII]

This is a coverage decision. The Plaintiff was a young child who was hit by a car while crossing the road. The incident stemmed from a trip to the Toronto Islands. The Plaintiff’s father was looking for a parking spot. He dropped the Plaintiff, along with his young siblings and cousins, on a sidewalk while he looked for a spot. The father told the young children to cross the road and meet him at the ferry dock. As the Plaintiff was crossing the road, he was hit by a car and sustained serious injuries.

The Plaintiff was unsuccessful against the driver who hit him, but successful in an action against his father. The result was upheld on appeal. The Jury characterized the father’s negligence as “the unsafe unloading of [the Plaintiff] at a busy intersection”. The Jury “made it clear” that Plaintiff’s injuries stemmed from his father’s use and operation of a motor vehicle.

The Defendant argued it did not have a duty to indemnify the father (its insured). It argued the father’s negligence did not arise “directly or indirectly from the use or operation of his automobile.” His use of the motor vehicle was merely incidental to his negligence.

The Court rejected the Defendant’s argument. Having appealed and lost, the Jury’s holdings were “binding on the defendant”. The father was not negligent because of his poor parenting. Instead, the father was negligent because he chose a very bad area to unload his young passengers. The Defendant insurer was ordered to indemnify the its insured (the father).

Read the full decision on CanLII

Counsel:
Geoffrey Adair, Jeffrey Hernaez, for the Plaintiffs
Wayne Morris, Terry Liu, for the Defendant

Judge:
M. Morgan J

 

 

Jordan Kofman
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.