The recent Court of Appeal decision in Ontario (Government and Consumer Services) v. Gore Mutual Insurance Company[1] confirmed benefits coverage was available to an operator of an uninsured vehicle involved in a non-accident incident with another, insured vehicle. The Licence Appeal Tribunal (LAT) had initially denied coverage under the insured vehicle’s policy, on the basis that the insured vehicle was not involved in the incident, leaving the claimants to apply to the Motor Vehicle Accident Claims Fund (the “Fund”). The decision was appealed to the Divisional Court, where the LAT decision was reversed, which the Court of Appeal recently upheld.
Background
In December 2013, two brothers, Christopher and Casey Ugulini, went snowmobiling together. Casey’s snowmobile was insured; Christopher’s was uninsured. Christopher brought his fiancé, who rode with him, seated behind him on his snowmobile. Christopher and his fiancé took the lead on the route, with Casey following closely behind on his own snowmobile. The pair of snowmobiles travelled the route at high speeds, in an area not permitted for such activity. Tragically, both snowmobiles collided with a tree that had fallen across the trail they were following, within one second of each other. Both brothers died. Christopher’s fiancé was injured. She applied for accident benefits, and a claim for death benefits was made on behalf of Christopher. A dispute arose over whether Casey’s insurer, Gore Mutual, was responsible to pay the benefits, or whether they were payable only by the Fund.
At the LAT, it was determined that the Fund was liable to pay the benefits because the insured snowmobile was not involved in the incident from which the entitlement to statutory accident benefits arose.[2] The LAT reasoned that the injuries to the driver and passenger of the uninsured snowmobile would have occurred whether or not the other, insured snowmobile had been following it.[3] The Divisional Court reversed that decision because it found the LAT had inserted a causation requirement into its analysis, which was an error of law.[4]
Analysis
The Court of Appeal upheld the Divisional Court ruling, because it concluded the LAT made an error of law in its analysis. In interpreting the phrase “involved in the incident”, the LAT reasoned that for an insured vehicle to be involved in an incident that injured an occupant of an uninsured vehicle, there had to be “participation and proximity of time and space”.[5] The LAT made findings of fact that the snowmobiles were driving on a trail in single file, the insured vehicle directly behind the uninsured vehicle, and there was no contact between the vehicles during the incident.[6] There was proximity of time and space: the snowmobiles were approximately ten metres apart and there was just six-tenths of a second between the impacts with the tree.[7] The LAT went on to find that where there is no contact between the vehicles, there must be “some action on the part of the driver of the alleged involved vehicle that caused or contributed to the collision”.[8] The LAT held that in order for coverage to be triggered, the driver of the insured vehicle must have been “engaged in conduct that caused or contributed to the injuries of those in the uninsured vehicle”.[9]
The Divisional Court reversed this finding because a causation element was introduced incorrectly. Gore appealed, on the basis that the Divisional Court had misinterpreted the LAT’s decision, which was in their view, actually a multi-factored analysis, on case-specific facts, that the involvement of their insured’s vehicle was “too remote”.[10]
The Court of Appeal found that the LAT had indeed applied a test which required an element of causation in situations where vehicles do not collide, which was an error of law.[11]
Result
In finding that causation was not a requirement, the Court of Appeal agreed with the Divisional Court that proximity of time and space were sufficient to meet the requirements of section 268(2)(iii): three people went snowmobiling together, drove two snowmobiles down a path together single file, at high speed where they were not allowed to be, and tragically, within one second of each other, both brothers were killed by the same cause. “It is conceivable there were two different accidents. But there was only one incident”.[12] Accordingly, Gore was responsible for the payment of accident benefits.
[1] Ontario (Government and Consumer Services) v Gore Mutual Insurance Company, 2023 ONCA 433
[2] Section 268(2) of the Insurance Act, RSO 1990 c I8
[3] Supra note 1 at 3
[4] Ibid at 4
[5] Ibid at 15
[6] Ibid at 14
[7] Ibid
[8] Ibid at 16
[9] Ibid at 18
[10]Ibid at 22-23
[11] Ibid at 28-29
[12] Ibid at 30
