Davis v. Aviva Canada Inc, 2017 ONSC 6173

Injuries sustained while maintaining vehicle may be an “accident” within the meaning of the SABS.

Date Heard: September 14, 2017 | Full Decision [PDF]

Aviva argued the Plaintiff was not entitled to accident benefits because she was not involved in an “accident” within the meaning of the SABS.

The Plaintiff was injured by the hood of her car while re-filling windshield washer fluid.  At the time of the incident, the car was not running.  It was parked in a driveway.  The Plaintiff did not intend on driving her car anywhere.

Counsel agreed the “causation” test was not relevant to the question of whether the Plaintiff was involved in an “accident”.  Instead, the Court’s only concern was whether opening a vehicle’s hood to check washer fluid levels was “one of the ordinary and well known activities to which automobiles are put”.

The Defendant argued the Plaintiff was merely maintaining or repairing her vehicle.  For the Defendant, maintenance and repair are not part of the ordinary “use or operation” of a motor vehicle.  The Court rejected the Defendant’s argument.  Active use of a vehicle is not relevant to the purpose test.  The Plaintiff had been involved in an “accident”.  The Court wrote:

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.

 

Read the full decision [PDF]
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.