|
Now that spring has arrived and the academic year has grinded to a halt, it might be a good time to reflect back on some recent Supreme Court of Canada ("SCC") cases that remain as of yet undecided. One intriguing case is Lumbermens Mutual Casualty Company v. Harold George Herbison, et. al., 2005 CanLII 19665 (ON CA) [Lumbermens Mutual], which was heard in December of 2006. When released, the SCC’s decision in Lumbermens Mutual is bound to draw considerable attention from more than a few critics.
The case involves a party of Ontario hunters and an accidental shooting that may ultimately serve to redefine our understanding of what constitutes a motor vehicle accident. Harold Herbison was shot by another hunter (Fred Wolfe) who had mistaken Herbison for a deer during a pre-dawn hunting expedition. Wolfe had been driving to his hunting stand when he spotted movement in the distance. While leaving the engine and headlights of his pick-up truck running, Wolfe stepped out, aimed and fired his rifle. Herbison was struck in the leg and injured quite seriously.
At the time, Wolfe was insured under a standard automobile liability policy issued by Lumbermens Mutual Casualty Co. Pursuant to s. 239(1) of the Ontario Insurance Act, RSO 1990, c I.8, the policy offered coverage for loss or damage “arising from the ownership or directly or indirectly from the use or operation” of his truck. At trial, Herbison sued not only Wolfe, but Lumbermens, arguing that the vehicle’s policy conditions had been engaged. Herbison’s position was simple: Wolfe had been “using” both the truck and its headlights to hunt.
While Wolfe was found liable in tort, the trial judge dismissed the claim against Lumbermens. Reviewing the leading authority on third party indemnity, Amos v. Insurance Corp. of British Columbia, [1995] 3 SCR 405 [Amos], the trial court found that hunting with headlights—which was an illegal activity—did not constitute an ordinary use of a motor vehicle. The causal relationship between Wolf’s use of the truck and his negligent shooting of Herbison was, likewise, deemed too remote to meet the Amos test.
In 2004, the case was taken before the Ontario Court of Appeal, where the trial judge’s decision was unexpectedly overturned. In a 2-1 decision, the appeal court found that the shooting did, in fact, constitute a motor vehicle accident, since Wolfe would have not been in the position to shoot at Herbison if not for the use of the truck. Using this strikingly broad interpretation of what constitutes the use of an automobile, the appeal court ordered Lumbermens to indemnify Mr. Herbison and his family for well over $800,000.
As we wait upon the SCC to render its decision, it bears noting that whatever the conclusion of Lumbermens Mutual, it will likely have powerful implications for both insurers and motor vehicle owners across the country. Insurers are no doubt concerned that the traditional collision-based definition of motor vehicle accident is in the process of being radically redefined by our courts. Car owners are likewise concerned that such a redefinition might infuse considerable unpredictability in the insurance market, leading to increased premiums. While plaintiffs, such as Mr. Herbison, are understandably drawn to the deep pockets of insurers, the SCC will no doubt need to wrestle with these and other serious policy considerations if we are to avoid a slippery slope of litigation involving a newly defined understanding of what constitutes a 'motor vehicle accident'.
7 Comments
Eric,
The policy form in Lumberman's uses the phrase "arising ... directly or indirectly from" as the term that defines the required relationship between the events and the harm.
Regardless of what one thinks the answer should be, ask yourself this question: can there be anything which might be a cause that doesn't fall within the set defined as all causes which are direct or indirect.
If we agree that logic - even that which sometimes passes for legal logic - requires a "no" answer to question, then we'll have to agree that any decision the SCC makes that finds that the events were not a cause is a decision based on [scare quotes time] "policy" factors.
That, as you correctly indicate, is the problem the SCC has to wrestle with.
Putting this another way, in order to restrict the ordinary language meaning of "arising ... directly or indirectly from", the SCC will have to say, again, that legal causation is not scientific causation; but this time to restrict the scope of the causal relationship rather than to enlarge it.
David Cheifetz
David,
I don't disagree with you. The issue arising in Lumbermens Mutual is very much an artifact of the statutory language engaged. You might be interested in knowing that there is also a companion case to Lumbermens that was heard on the same day: Citadel General Assurance Company v. Michael Vytlingam by his Litigation Guardian, Chandra Vytlingam, et al. (docket no. 31083). This case involves an Ontario man who suffered extensive brain injury when a boulder was intentionally dropped onto his car from an overpass in North Carolina. As you might have guessed, the boulder was transported to the overpass by the perpetrators using their own vehicle.
Eric Baum
Eric,
The SCC has itself in a jurisprudential, metaphysical, quagmire no matter how it approaches the cases no matter how it tries to analyze the problem, if it claims that the analysis it adopts is consistent with existing principle and mandates one conclusion or the other
Apply the method of analyses suggested by either of Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405 or Heredi v. Fensom, 2002 SCC 50, [2002] 2 S.C.R. 741 and ask yourself whether both cases can be validly, equally, used to support both the insurers and the insureds in the Herbison and Vytlingam cases. If Amos and Heredi validly support both sides, they can't be used for either at the expense of the other. However, it's almost certain that that, in effect, is what will happen since the SCC has to choose one or the other of the insurers or the insureds. It doesn't have Solomon's option of cutting the subject matter in half.
Bear in mind that the SCC is already on record as saying that questions of cause in insurance policy interpretation are not a matter of metaphysics: see, C.C.R. Fishing ltd. v. British Reserve Insurance Co., [1990] 1 S.C.R. 814, 1990 CanLII 145 and more recently, Derksen v. 539938 Ontario Ltd., 2001 SCC 72, [2001] 3 S.C.R. 398, 205 D.L.R. (4th) 1 on the meaning of "cause" and "proximate cause" in insurance policy analysis. In CCR Fishing, McLachlin J (as he then was) wrote:
And, there's this from Derksen
The SCC is also generally on record that causation, generally, is not a matter of metaphysics. That case is, of course, Snell v Farrell. Whether the SCC's adherence to that mantra is more in the range of do what I say, not what I do, is something over which much ink has already been spilled, and much more is likely to be spilled.
Causation is no doubt a philosophical concept, but it is worth bearing in mind that the approach to causation to be taken here is not at all open-ended, abstract or general. Quite the contrary, the context is specific and well-defined and we have some good ideas as to how causation is intended to be understood in this context.
The cited remarks from the Supreme Court in Derksen show a disregard for context that is worth criticising. Marine insurance is not carried on according to a statutory scheme dictated by the legislature. Underwriters are free to agree as they think prudent. If they choose a wording that can be interpreted against them, so be it. They pay one claim, and they (and anyone in the industry paying attention) can then change their ways accordingly. But a provision imposed by statute expresses the will of Parliament. The underwriter uses this wording or he can't do business. The wording is part of an elaborate scheme of regulation of autos and auto insurance, which includes regulation of rates, and which is intended to produce a stable industry with the resources to pay this portion of the costs of the automobile society. If Parliament chooses a wording that can be interpreted so as to wreck the entire scheme beyond salvage, the court is under a duty not to adopt that interpretation. And if the court expands coverage beyond the insurer's expectation, the entire industry suffers until the legislature can respond. The idea that one can adopt the same rakish, devil-may-care attitude here as you would with Lloyd's and the Greek merchant marine is neither realistic nor responsible.
ebt,
This wording in the Ontario OAP isn't actually government imposed. It's industry drafted, the gov't approves it, then it becomes standard.
As to what the insurance industry's actual intention was, I'd be surprised if the SCC allowed or heard any arguments on that issue. I say this based on how the cases below seem to have been argued and decided. I've gone through the Herbison trial and appeal judgments and don't see that that sort of evidence was ever presented. It appears that the case was argued on the interpretation of the words as written; that is, that any rule allowing the introduction of extrinsic evidence wouldn't apply.
This is guesswork on my part. I don't know what was in the facta or the evidence actually called. I'm just assuming that the trial judge would have referred to some of it if it were called and similarily the Ont CA, at the least because both trial and appellate courts would have to mention that Lumberman called the evidence etc.
So, if the SCC has no actual evidence as to the insurance industry's expectation because the evidence wasn't introduced at all, or wasn't admissible if introduction was attempted, what can it do but decide the meaning of the words based on prior precedent, what's written and so called natural (or dictionary) meanings?
The industry didn't enact the statute. Indeed, they had little enough to do with it that their intention clearly isn't directly relevant. The intention of the legislature is what matters. If the intention is clearly to protect insurers from nasty surprises, then the court must take care not to inflict such. This approach is simply not consistent with the required approach to an insurance policy.
Precedent has to be relevant to be of value. The interpetation of a marine insurance policy is not relevant precedent, and indeed is dangerously inappropriate in this context.
It doesn't look like there was any evidence led as to the intention of the Legislature - which, if there had been, would have been a fiction. The legislature's intention was to pass the bill in the form it came out of third reading.
If the SCC quotes any propostions of statutory interpretation, they'll probably cite the current mantra "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": see, for example, Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47, 2005 SCC 6 at para. 54
Relevant precedent is what the SCC says is relevant (