SUPREME
COURT OF CANADA
Citation: Westmount (City) v. Rossy, 2012 SCC 30, [2012] 2 S.C.R.
136
|
Date: 20120622
Docket: 34060
|
Between:
City
of Westmount
Appellant
and
Richard
Rossy, Sharon Rossy, Justin Rossy, Luke Rossy, Nicholas Rossy and
Société
de l’assurance automobile du Québec
Respondents
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Cromwell
and Karakatsanis JJ.
Reasons
for Judgment:
(paras. 1 to 55)
|
LeBel J. (McLachlin C.J. and Deschamps,
Fish, Abella, Cromwell and Karakatsanis JJ. concurring)
|
Westmount (City) v. Rossy, 2012 SCC 30, [2012] 2
S.C.R. 136
City of Westmount Appellant
v.
Richard Rossy, Sharon Rossy, Justin
Rossy,
Luke Rossy, Nicholas Rossy and
Société de l’assurance
automobile du Québec Respondents
Indexed as: Westmount (City) v. Rossy
2012 SCC 30
File No.: 34060.
2012: February 13; 2012: June 22.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Cromwell and Karakatsanis JJ.
on appeal from the court of appeal for quebec
Insurance
— Automobile insurance — No‑fault public automobile insurance scheme —
Tree falling on vehicle causing driver’s death — Type of causal link necessary
between damage and automobile — Whether driver’s injuries were “caused by an
automobile, by the use thereof or by the load carried in or on an automobile” —
Automobile Insurance Act, R.S.Q., c. A‑25, s. 1 “accident”, “damage
caused by an automobile”.
Civil procedure — Exception to dismiss action —
Tree falling on vehicle causing driver’s death — Driver’s family members filing
action in damages against city where accident occurred — Whether civil claim
barred by virtue of public automobile insurance scheme’s application — Code of
Civil Procedure, R.S.Q., c. C‑25, arts. 75.1, 165(4) —
Automobile Insurance Act, R.S.Q., c. A‑25, s. 83.57.
R
was killed when a tree fell on the vehicle he was driving in the City of
Westmount. R’s parents and three brothers filed an action in damages against
the City on the basis of civil liability under the Civil Code of Québec.
They alleged that, as the owner of the tree, the City had failed to properly
maintain it. The City moved to dismiss the action under arts. 165(4) and
75.1 of the Code of Civil Procedure. It argued that the injury resulted
from an accident caused by an automobile and, therefore, that any compensation
for personal injury was governed by the Automobile Insurance Act
(“Act”). The Superior Court granted the City’s motion and dismissed the
action. The Court of Appeal concluded that an injury is not “damage caused by
an automobile” simply because the victim was in a vehicle at the time of the
accident. It found that the motion’s allegations led to the conclusion that
there was nothing to connect R’s injuries with the fact that he was in a
vehicle. It allowed the appeal and held that the case could proceed in the
Superior Court.
Held:
The appeal should be allowed.
The
Act is considered remedial legislation. Therefore, it must be interpreted in
accordance with s. 41 of the Interpretation Act. It must be given a
large and liberal interpretation to ensure that its purpose is attained. The
Court of Appeal’s decision in Productions Pram inc. v. Lemay, [1992]
R.J.Q. 1738, teaches that, in determining whether the Act applies, a court must
not look for a traditional causal link between fault and damage as is routinely
done in delictual or quasi‑delictual civil liability cases. The
principles from Pram are a useful guide to the interpretation of the Act
and should be reaffirmed. Each case must be considered on its facts. However,
at a minimum, an accident arising out of the use of a vehicle as a means of
transportation will fall within the definition of “accident” in the Act and
will therefore be “caused by an automobile” within the meaning of the Act. Any
civil action in connection with the damage caused by that accident will be
barred and victims will have to file a claim with the Société de l’assurance
automobile du Québec. The vehicle’s role in the accident need not be an active
one. The mere use or operation of the vehicle, as a vehicle, will be
sufficient for the Act to apply. This interpretation follows from a
straightforward application of the principles developed in Pram. It is
in line with the jurisprudence and the literature, and it gives effect to the
objective of the legislative scheme.
On
the facts of this case, the Act applies to R’s accident. Although the vehicle
may have been stationary or moving through an intersection, the evidence on the
record is that R was using the vehicle as a means of transportation when the
accident occurred. This is enough to find that the damage arose as a result of
an “accident” within the meaning of the Act and that the no‑fault
benefits of the scheme are triggered. Therefore, the civil claim is barred and
R’s parents and brothers must turn instead to the Société de l’assurance
automobile du Québec for compensation. The Court of Appeal erred in
interpreting the Act too narrowly. Such an interpretation risks unduly
restricting the intended application of Quebec’s no‑fault scheme and must
therefore be rejected.
Cases Cited
Applied:
Productions Pram inc. v. Lemay, [1992] R.J.Q. 1738; distinguished:
Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405; Citadel
General Assurance Co. v. Vytlingam, 2007 SCC 46, [2007] 3 S.C.R. 373; considered:
Periard v. Ville de Sept‑Iles, [1985] I.L.R. 7557; McMillan v.
Thompson (Rural Municipality) (1997), 144 D.L.R. (4th) 53; referred to:
Lumbermens Mutual Casualty Co. v. Herbison, 2007 SCC 47, [2007] 3 S.C.R.
393; Québec (Procureur général) v. Villeneuve, [1996] R.J.Q. 2199; Bédard
v. Royer, [2003] R.J.Q. 2455; Compagnie d’assurance Victoria du Canada
v. Neveu, [1989] R.R.A. 226; Succession André Dubois v. Ministère des
Transports du Québec, Que. C.A., No. 500‑09‑001027‑937,
March 25, 1997, aff’g Sup. Ct. (Montréal), No. 500‑05‑000204‑907,
April 30, 1993.
Statutes and Regulations Cited
Automobile Accident Insurance Act,
R.S.S. 1978, c. A‑35, s. 40.2(1).
Automobile Insurance Act, R.S.Q., c. A‑25,
s. 1 “accident”, “automobile”, “damage caused by an automobile”, Title II,
ss. 5‑7, 69, 83.57, Title III.
Civil Code of Québec, S.Q. 1991,
c. 64.
Code of Civil Procedure, R.S.Q.,
c. C‑25, arts. 75.1 [rep. 2009, c. 12, s. 3],
165(4).
Interpretation Act, R.S.Q., c. I‑16,
s. 41.
Manitoba Public Insurance Corporation Act, C.C.S.M. c. P215, ss. 70(1) “accident”, “bodily injury
caused by an automobile”, 72.
Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83, s. 79(1) [am. 335/84, Sch., item 19 and
379/85, Sch., item 31].
Authors Cited
Baudouin, Jean‑Louis, et Patrice Deslauriers. La
responsabilité civile, 7e éd., vol. I, Principes
généraux. Cowansville, Qué.: Yvon Blais, 2007.
Gardner, Daniel. “L’interprétation de la portée de la Loi sur
l’assurance automobile: un éternel recommencement” (2011), 52 C. de D.
167.
Gardner, Daniel. “La Loi sur l’assurance automobile: loi
d’interprétation libérale?” (1992), 33 C. de D. 485.
Rousseau‑Houle, Thérèse. “Le régime québécois d’assurance
automobile, vingt ans après” (1998), 39 C. de D. 213.
APPEAL from a judgment of the Quebec Court of Appeal (Thibault and
Dufresne JJ.A. and Cournoyer J. (ad hoc)), 2010 QCCA 2131,
[2010] R.J.Q. 2338, SOQUIJ AZ-50692792, [2010] J.Q. no 12046
(QL), 2010 CarswellQue 12485, setting aside a decision of Reimnitz J.,
2008 QCCS 4471, SOQUIJ AZ-50513905, [2008] J.Q. no 9318 (QL),
2008 CarswellQue 9489. Appeal allowed.
André Legrand and Dominic
Dupoy, for the appellant.
Julius H. Grey,
Politimi Karounis and Lynne‑Marie Casgrain, for the respondents
Richard Rossy et al.
No one appeared for
the respondent Société de l’assurance automobile du Québec.
The
judgment of the Court was delivered by
LeBel J. —
I. Introduction
[1]
This appeal arises out of a tragic accident. In
August 2006, a tree in the City of Westmount (“City”) fell on a vehicle that
Gabriel Anthony Rossy was in, killing him. Mr. Rossy’s parents and three
brothers (the “respondents”) filed an action in damages against the appellant,
the City, on the basis of civil liability under the Civil Code of Québec,
S.Q. 1991, c. 64. The question before this Court is whether the respondents’
action against the City is barred. If the claim falls under Quebec’s automobile
insurance scheme, any compensation arising from the incident would be governed
by that scheme and this would preclude a civil action. In order for the claim
to fall under Quebec’s automobile insurance scheme, thereby preventing the
respondents from suing the City, Mr. Rossy’s death must have resulted from
an “accident” within the meaning of the Automobile Insurance Act,
R.S.Q., c. A-25 (“Act”), that is, an event in which injury or damage was
“caused by an automobile, by the use thereof or by the load carried in or on an
automobile” (s. 1 “damage caused by an automobile”). This is the crux of the
appeal.
[2]
For the reasons that follow, I conclude that the
respondents’ claim is barred. The injury was an “accident” within the meaning
of the Act. I would allow the appeal and dismiss the action against the City.
II. Facts
[3]
The facts of this case are straightforward. One
summer evening in 2006, Mr. Rossy was killed when a tree fell on the vehicle he
was driving, according to the evidence in the record. The respondents started
an action in the Quebec Superior Court against the City as the owner of the
tree, alleging that the City had failed to properly maintain it. The
respondents specifically pleaded that “[t]he cause of the incident was totally
independent of the operation of the automobile and the liability is not
precluded by Quebec’s no fault system of automobile insurance” (A.R., at p.
30).
[4]
The City moved to dismiss the action under arts.
165(4) and 75.1 of the Code of Civil Procedure, R.S.Q., c. C-25. It
argued that the injury resulted from an accident caused by an automobile and,
therefore, that any compensation for personal injury was governed by the Act.
Because the automobile insurance scheme applied, it argued, the respondents
were precluded from suing the City under the general law of civil liability.
III. Judicial History
A.
Quebec Superior Court, Reimnitz J., 2008 QCCS
4471 (CanLII)
[5]
The motion judge began by setting out the
principles from the relevant authorities. He noted that the Act is remedial
legislation of a social nature, which must be given full effect. In this
respect, the Act must be construed broadly and liberally in order to promote
its primary purpose, which is to compensate victims of traffic accidents
generally. However, this interpretation must be plausible and logical, having
regard to the wording of the Act.
[6]
The motion judge stated that, in order to fall
under the Act, an accident must occur in the normal course of the vehicle’s
use. If it does, there is no need to look for a traditional causal link. At
paragraph 17, he endorsed the following comments by Baudouin J.A. in Productions
Pram inc. v. Lemay, [1992] R.J.Q. 1738 (C.A.), at p. 1741:
[translation] . . . the causal link
required by the Act is sui generis, and . . . in characterizing that link, it is unhelpful to rigidly adhere to
any of the traditional doctrinal constructs of causa causans, causa
proxima, adequate causation, proximate causation and equivalence of
conditions. Those theories are very helpful in the general law, particularly
where the judge must assess the causal relationship between fault and damage.
They are not helpful here.
[7]
Further, the vehicle need not play an active
role in the ensuing damage. Section 1 of the Act refers not only to damage
“caused by an automobile” but also to damage “caused . . . by the use thereof
or by the load carried in or on an automobile”. Thus, the motion judge
reasoned, it is not necessary for the damage to be caused directly by the
vehicle itself, as long as the damage arises within the general context of the
vehicle’s use. He stated that requiring a victim to prove that the vehicle was
the effective cause of the injury would constitute an undue burden that would
frustrate the remedial purpose of the Act.
[8]
Finally, the motion judge endorsed the view that
the decisions of this Court raised by the City — Amos v. Insurance Corp. of
British Columbia, [1995] 3 S.C.R. 405; Citadel General Assurance Co. v.
Vytlingam, 2007 SCC 46, [2007] 3 S.C.R. 373; Lumbermens Mutual Casualty
Co. v. Herbison, 2007 SCC 47, [2007] 3 S.C.R. 393 — were not based on the
same applicable legislation.
[9]
For these reasons, the motion judge granted the
City’s motion and dismissed the action on the basis of the principles set out
in Pram.
B. Quebec Court of Appeal,
Thibault and Dufresne JJ.A. and Cournoyer J. (ad hoc), 2010 QCCA 2131, [2010]
R.J.Q. 2338
[10]
The Court of Appeal framed the issue as follows: Given that the facts
alleged in the motion to institute proceedings are assumed to be true, is the
applicable law the Act or the general law of civil liability under the Civil
Code of Québec?
[11]
The Court of Appeal began by noting that whether a causal link exists,
that is whether the injury was “damage caused by an automobile” as defined in
the Act, is a question of [translation]
“logic and fact” (para. 14). This, it said, is one of six principles set out by
Baudouin J.A. in Pram.
[12]
The Court of Appeal acknowledged that the purpose of the Act is to
compensate an accident victim for damage caused by an automobile, but it was of
the view that the Act was not designed to dispense with the principles of civil
liability in every case in which the victim was in a vehicle. It cited several cases in which courts have held that the Act was
inapplicable, finding that those cases demonstrate that [translation] “the courts have made good
use of logic and common sense in light of the facts of each case” (para. 30).
[13]
The Court of Appeal concluded that the respondents’ injury was not
caused by an automobile, its use or its load. It allowed the appeal and held
that the case could proceed in the Superior Court. It stated that, as some
courts have held, an injury is not “damage caused by an automobile” simply
because the victim was in a vehicle at the time of the accident. It agreed that
for the purposes of the motion, the respondents’ allegations had to be assumed
to be true. Unlike the motion judge, however, the Court of Appeal found that
the allegations led to the conclusion that there was nothing to connect Mr. Rossy’s
injuries with the fact that he was in a vehicle:
[translation] At the stage of a motion to
dismiss, the allegations in the pleading become crucial, since they must be
assumed to be true. Here, the Rossy family allege in paragraphs 4 and 5
of their motion to institute proceedings, first, that Gabriel Anthony’s death
was caused solely by the fall of a tree and, second, that the City is liable
for the injury suffered as a result of its failure to maintain the tree, which
it owned. It is true that the young man was in an automobile when the tree
fell on it, but there is nothing that can connect the injury he suffered with
the fact that he was in an automobile. The automobile is merely what he
happened to be in when the tree fell. He could just as well have been walking,
cycling, rollerblading, etc., and suffered the same injury. But the result
would have been different if, for example, the falling tree had caused the
automobile in which Gabriel Anthony was travelling to crash into the tree or to
swerve off course and become involved in an accident. [para. 40]
IV. Analysis
A.
Issue
[14]
The main issue in this appeal is the scope of
the Act and whether the respondents’ claim is barred by virtue of its
application in this case. To resolve it, the Court must determine what is
“damage caused by an automobile, by the use thereof or by the load carried in
or on an automobile” for the purpose of s. 1 of the Act.
[15]
As a preliminary procedural matter, given that
this issue was raised on a motion to dismiss the action in damages under arts.
75.1 and 165(4) of the Code of Civil Procedure, the Court of Appeal
correctly noted that, in order to determine whether the Act applies to this
case, the facts alleged in the respondents’ initial action must be deemed to be
true under art. 165(4). In accordance with art. 75.1, the court may
consider transcripts of the evidence given by the parties on discovery to
assist in determining what facts are being alleged. Although art. 75.1 was
repealed in 2009 (S.Q. 2009, c. 12, s. 3), it was still in force at the
time the motion was heard in the Superior Court.
[16]
In this case, the discovery transcripts indicate
that one of the respondents gave evidence to the effect that Mr. Rossy was “in
the street driving” when the accident occurred (A.R., at p. 113). It is
unclear, however, whether the vehicle was stationary or moving through an
intersection at the moment of impact. What does appear to be undisputed is that
Mr. Rossy was travelling from point A to point B when the accident occurred.
These are the facts that must be considered to determine whether the Act applies
to bar the respondents’ civil action.
B.
Legislative Scheme
(1) Background
[17]
The Act came into force in 1978 in response to
growing dissatisfaction with the system of civil liability for automobile
accidents that existed at the time. In 1971, the Quebec government had
established a committee to study and report on the extent to which victims of
automobile accidents were being compensated, either through civil actions or
through the existing insurance scheme. The committee’s report found that a
large number of victims went uncompensated, that trying to obtain compensation
could take years and that the cost of obtaining compensation was in the tens of
thousands of dollars (see e.g. D. Gardner, “L’interprétation de la
portée de la Loi sur l’assurance automobile: un éternel recommencement”
(2011), 52 C. de D. 167; T. Rousseau-Houle, “Le régime québécois
d’assurance automobile, vingt ans après” (1998), 39 C. de
D. 213; Québec (Procureur général) v. Villeneuve, [1996] R.J.Q. 2199
(C.A.), at p. 2205, per Brossard J.A.).
[18]
As a result, the Quebec government implemented a
no-fault public automobile insurance scheme to be administered by the Société
de l’assurance automobile du Québec (“SAAQ”). The new scheme
was primarily designed to provide compensation to victims of automobile
accidents for death and injury to the person, without regard to fault. The
provisions of Title II of the Act eliminated the expense and uncertainty of
trying to recover damages by way of private civil actions. However, the other
part of the scheme, Title III, retained a fault-based regime for property
damage caused by a vehicle and also required private insurance for such damage
(Bédard v. Royer, [2003] R.J.Q. 2455, at para. 24,
per Gendreau J.A.; J.-L. Baudouin and P. Deslauriers, La
responsabilité civile (7th ed. 2007), vol. I, Principes généraux, at
pp. 929-35).
[19]
The purpose of the Act was described by Baudouin
J.A. in Pram as follows:
[translation] [The Act’s] purpose is
essentially to ensure that victims of automobile accidents are compensated for
their bodily injuries regardless of who is at fault. It also removes the
assessment of damages from the courts and entrusts it to the Société de l’assurance
automobile du Québec. [p. 1740]
In interpreting the
provisions at issue, the Court must bear in mind the objectives of the Act, the
broad reach it was intended to have, and the context in which it was enacted.
[20]
Under the provisions of the Act set out in the
Appendix, the respondents are entitled to compensation for Mr. Rossy’s
death if it was the result of an “accident”. “[A]ccident” means “any event in which damage is caused by an automobile”
(s. 1). For the purposes of this appeal, the only relevant portion of the
definition of “damage caused by an automobile” is “any
damage caused by an automobile, by the use thereof or by the load carried in or
on an automobile”. If this scheme applies to the respondents’ claim, their
civil claim against the City would be barred by virtue of s. 83.57, which
operates to prevent all those compensated under the Act from claiming civil
liability remedies.
[21]
As I have already mentioned, the Act is
considered remedial legislation. Therefore, it must be interpreted in
accordance with s. 41 of the Interpretation Act, R.S.Q., c. I-16. It
must be given a “large and liberal” interpretation to ensure that its purpose
is attained.
[22]
This appeal therefore turns on the following
question: Were Mr. Rossy’s injuries “caused by an automobile, by the use
thereof or by the load carried in or on an automobile”? As we will see, the
difficulty in interpreting this phrase has resulted mainly from the notions of
causation that the words “caused by” evoke.
(2) Case Law
[23]
The case law on this issue is extensive.
Although there have been conflicting or diverging decisions, several judgments
of the Quebec Court of Appeal provide guidance regarding the meaning of
causation in the context of the Act. The Court of Appeal considered the
causation requirement in 1985 in Periard v. Ville de Sept-Iles, [1985] I.L.R. 7557. It cautioned against reading the components of
the general scheme of civil liability into Quebec’s automobile insurance
scheme. In that case, the claimant’s wife, who was standing between a stopped
school bus and her own vehicle, died when the vehicle was struck from behind by
a truck. Crête C.J.Q.
explained that under the Act there is no need to seek legal causation once it
has been established that a traffic accident involving one or more vehicles
caused bodily injury:
[translation]
In my view, in light of the provisions of the A.I.A., when a traffic accident
involving one or more automobiles causes bodily injury, it becomes unnecessary
to identify the cause of the accident from a legal perspective.
I repeat, the Act says “regardless of
who is at fault . . .” and without a court action.
The
legislature does not speak in vain. The Automobile Insurance Act is a
remedial statute that must be given its full effect, and no distinctions should
be made where the Act makes none. [p. 7559]
[24]
The court concluded that the Act applied to the
accident and that the claimant’s civil action was therefore barred. Tyndale
J.A., concurring in the result, emphasized the purpose of the Act in
interpreting the words “caused by”:
.
. . in view of the overall economy of the 1978 reforms and of the Statute
itself, physical cause was intended. The system is, after all, a “no-fault”
insurance scheme. For example, in case of collision between an automobile and a
pedestrian, even if the sole juridical cause of the damage is the fault of the
pedestrian, I do not think he is excluded from compensation by the Régie [now
the SAAQ]. [p. 7559]
The Court of Appeal
expressed a similar view on causation in Compagnie d’assurance Victoria du
Canada v. Neveu, [1989] R.R.A. 226 (Que.).
[25]
Seven years after Periard, the Court of Appeal revisited the issue in Pram, and firmly
rejected the application of a traditional civil law notion of causation. In
that case, a cameraman was seriously injured when a low-flying aircraft he was
videotaping from a moving vehicle hit the vehicle’s windshield. In his opinion,
Baudouin J.A. cited Periard with approval and went on to
formulate [translation] “three
fundamental rules” for identifying the causal link necessary
to establish that an “accident” has occurred within the meaning of the Act:
[translation]
The first is that the causal link required by the act is sui generis,
and that in characterizing that link, it is unhelpful to rigidly adhere to any
of the traditional doctrinal constructs of causa causans, causa proxima,
adequate causation, proximate causation and equivalence of conditions. Those
theories are very helpful in the general law, particularly where the judge must
assess the causal relationship between fault and damage. They are not helpful
here.
. . .
The second is that the type of
causality that must apply to the case cannot be determined without regard for
the purposes of the act, which, it should not be forgotten, is remedial social
legislation.
The
third is that it is important to go back to the legislation itself. The act
mentions damage caused not only by an automobile (which might suggest that the
automobile must play an active role), but also by a load carried in or on an
automobile or “by the use thereof”. [Emphasis in original; pp.
1741-42.]
[26]
Therefore, Baudouin J.A. concluded, there is no
need to resort to traditional notions of causation, since the Act must be
construed broadly and liberally in light of its objectives, the remedial and
social nature of the scheme and the wording of the Act itself. Further, such
an interpretation is consistent with prior jurisprudence, and is plausible and
logical:
[translation] It seems to me therefore
that if, first, the legislature’s purposes, second, the social and remedial
nature of the act and, third, the prevailing line of authority are taken into
account, the act must indeed be construed broadly and liberally. However, this
construction must remain plausible and logical having regard to the wording of
the act. [p. 1741]
[27]
Baudouin J.A. analysed the jurisprudence and
distilled from it the following principles with respect to causation in the
context of the Act:
•
The identification of a causal link remains a
matter of logic and fact, and depends on the circumstances of each case.
•
For the act to apply, it is not necessary for
the vehicle to have entered directly into physical contact with the victim.
•
It is not necessary for the vehicle to have been
in motion when the damage occurred. Whether the vehicle’s role was active or
passive is not determinative of causation.
•
Whether the act that caused the damage was
voluntary or involuntary is of no consequence.
•
The mere use of the vehicle, that is, its use,
handling and operation, is sufficient for the act to apply. The meaning of
“damage caused by the use of the automobile” is broader than that of “damage
caused by the automobile”.
•
The damage need not have been produced by the
vehicle directly. It is enough that the damage occur in the general context of
the use of the vehicle (p. 1742).
[28]
Pram therefore
confirms that the Act must be given a broad and liberal interpretation. Pram
was applied soon after being rendered by the Court of Appeal, in a case in
which the facts (a lamppost falling on a car, possibly on a highway) are
strikingly similar to those in the present appeal (Succession André Dubois
v. Ministère des Transports du Québec, Que. C.A., No. 500-09-001027-937,
March 25, 1997, aff’g Sup. Ct. (Montréal), No. 500-05-000204-907, April
30, 1993, Deslongchamps J.). Pram teaches that, in determining whether
the Act applies, a court must not look for a traditional causal link between
fault and damage as is routinely done in delictual or quasi-delictual civil
liability cases. The principles from Pram are a useful guide to the
interpretation of these provisions and should be reaffirmed.
(3) Authors
[29]
Commentators have also considered the definition
of “damage caused by an automobile” for
the purposes of Quebec’s automobile insurance scheme. Professor Gardner, for
example, emphasizes the conceptual difference between the causation requirement
in the law of civil liability and causation in the context of the Act. He notes
that to import a concept of causation from the law of civil liability into the
Act would place the burden of proving that the vehicle was the actual cause of
the injury on the victim, thereby defeating the main objective of the Act:
[translation]
To frame the issue of whether the act applies by referring to the general law
criteria for causality is, in our opinion, unacceptable. To require the victim
to prove that the automobile was the determining cause of the damage he or she
suffered is far too heavy a burden, one that frustrates the remedial purpose of
the act. The general law system, which is based on fault, is concerned above
all else with determining who is responsible for the accident. It is only once
this step is completed that the focus shifts to compensating the victim. An
objective liability system is based on the opposite premise: the victim comes
first. With this in mind, we do not see why the general law meaning of the
word “cause” should be applied automatically to the Automobile Insurance Act.
A simple example serves to show that these two systems are incompatible. A
Quebecer driving along a country road is injured when a tree branch breaks and
falls on his automobile. In light of the decisions in which courts have
interpreted the Automobile Insurance Act, it can be asserted that this
Quebecer will receive compensation from the SAAQ. However, if the general law
theory of adequate causality were applied, it seems clear that the automobile’s
movement was not the determining cause of the damage. Instead, the appropriate
course of action would be to sue the owner of the tree under article 1054,
paragraph 1, of the Civil Code of Lower Canada in order to obtain
compensation. In a case in which the Automobile Insurance Act applies,
what must be demonstrated is a sufficiently close relationship between the
presence of the automobile and the damage.
(D. Gardner, “La Loi sur l’assurance automobile: loi
d’interprétation libérale?” (1992), 33 C. de D. 485, at p. 495)
[30]
In La responsabilité civile (vol. I, Principes
généraux), Baudouin and Deslauriers emphasize the remedial nature of the
legislative scheme. They state that, given that nature, what is considered an
“accident” under the Act must be interpreted broadly. They explain that the
types of accidents covered by the Act are not limited to routine traffic
accidents but, rather, that the Act covers [translation]
“any incident resulting in damage in which an automobile is involved” (p. 942).
Therefore, it will suffice,“to meet the requirements
established by the courts, that an automobile be involved, in one way or
another, in the occurrence of the damage” (p. 947).
(4) Comparative Law: Decisions From Other
Canadian Jurisdictions
[31]
In interpreting the words of the Act, it can be helpful to consider how
similar provisions have been interpreted in other jurisdictions. Manitoba
provides a useful comparison since it has a “no-fault” automobile insurance
scheme modelled after the Quebec regime. Saskatchewan’s legislation has similarly
worded definitions, but allows an insured to choose between no-fault coverage
and tort-based coverage (s. 40.2(1) of The Automobile Accident Insurance Act,
R.S.S. 1978, c. A-35). This suggests a different legislative intent than
the one behind the Quebec scheme at issue here. Therefore, considering judicial
interpretation of the Saskatchewan provisions would not prove as useful.
[32]
With respect to the Manitoba legislative scheme, the enabling statute, The
Manitoba Public Insurance Corporation Act, C.C.S.M. c. P215 (“MPICA”),
defines “accident” in s. 70(1) as “any event in which bodily injury is caused
by an automobile”. “[B]odily injury caused by an automobile” is defined as
follows:
“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, but not including bodily injury
caused
(a) by
the autonomous act of an animal that is part of the load, or
(b) because
of an action performed by the victim in connection with the maintenance,
repair, alteration or improvement of an automobile;
Section 72 provides that compensation
under the scheme precludes a civil action:
72. Notwithstanding
the provisions of any other Act, compensation under this Part stands in lieu of
all rights and remedies arising out of bodily injuries to which this Part
applies and no action in that respect may be admitted before any court.
[33]
As we can see, the MPICA also contains the words “caused by”.
The expression “bodily injury caused by an automobile” is defined, there too,
by reference not just to injury caused by the vehicle, but also to injury
caused by the use of an automobile and by its load.
[34]
The words of the MPICA were considered by the Manitoba Court of
Appeal in McMillan v. Thompson (Rural Municipality) (1997), 144 D.L.R.
(4th) 53. In that case, Helper J.A. acknowledged that Manitoba’s automobile
insurance scheme was modelled after Quebec’s scheme:
The
evidence indicates that the Quebec plan, a “pure no-fault system” which has
been in existence since 1978, was reviewed by Kopstein P.J. and referred to by
the legislators. There can be little doubt that the Manitoba legislation was
modelled on the Quebec plan. It is worded similarly, but is not identical to
that plan. [p. 64]
[35]
In her analysis of the phrase “caused by”, Helper J.A. began by
identifying the purpose of the legislation:
The
legislated scheme is focused on injuries. It is not directed to accidents, nor
to the cause of accidents. That focus is clear in s. 70(1). Section 72, which
eliminates the concept of fault, supports that conclusion. The legislative
emphasis on the injuries suffered by a victim, and its failure to refer at all
to the cause of an accident, are important factors to consider in interpreting
the phrase “caused by” and in determining the scope of the scheme. [p. 65]
She considered that focusing on the
proximate cause of the injuries would be contrary to the purpose of the scheme:
Surely
the legislation is to be interpreted in a manner that results in equality and
equity. A restrictive interpretation of the words “caused by” would defeat many
of the objectives identified by the legislators prior to the introduction of
the enactment: the introduction of a simplified insurance scheme, the
elimination of litigation for bodily injuries received in the use of an
automobile and the desire to ensure that all victims receive timely
compensation. It was not the legislative intent to introduce a cumbersome
two-step system which necessitates a trial on the issue of negligence in all
accidents involving an automobile and thus perpetuates the uncertainty of the
result for a victim. Nor could it have been the legislative intent to provide
different remedies for victims depending upon the proximate cause of an
accident. The exact opposite intent is clear from the reading of Part 2 and
from an examination of the debates and the Report. [p. 67]
Finally, she concluded that the words
“caused by” could not be given a restricted meaning:
I cannot
state too strongly that the focus of the plan is on the relationship between
the bodily injuries sustained and an automobile or its use. That focus serves
as the starting point from which the interpretation of the phrase “caused by”
proceeds. The respondents’ submission is focused on the cause of the accident —
liability or fault. The clear words of the legislation [do] not support that
perspective of the plan’s operation . . . . [p. 68]
[36]
Helper J.A. readily distinguished this Court’s decision in Amos:
In
the Amos case, it was not an automobile accident but rather an external
event, a shooting, which caused the injury. In the case at bar, the injuries
resulted from an accident which occurred while the automobile was being driven
in the ordinary course of events. The phrase in Amos was an “injury
caused by an accident that arises out of the . . . use of a vehicle”. The court
was required to find that the injury in question arose from the plaintiff’s use
of a vehicle despite the fact that the vehicle was not involved in an accident.
The
motions judge erred in applying the reasoning in Amos to the question he
was required to answer. Both the circumstances in which the injuries occurred
in that case and the legislation under consideration are entirely
distinguishable from the circumstances in which the injuries occurred in the
case at bar and the phrase in question. Major’s reasons for giving the words
“arising out of the use of an automobile” a broad interpretation and for
commenting on the phrase “caused by” do not impact on the present case given
those different circumstances. [p. 72]
[37]
She then summarized the extent to which a causal link must be
established:
.
. . where the words “caused by” are used, there must be some link between the
injuries sustained and the use of the automobile. An ordinary reading of s.
70(1) leads to the same conclusion. The legislation does not require more. It
does not seek out causation in terms of the accident. It specifically eliminates
the concept of fault. In light of the elimination of fault, there is no support
for the submission that the proximate cause of an automobile accident
determines the application of Part 2. [p. 76]
[38]
This Court’s decisions in Amos and Vytlingam merit some
commentary since the respondents contend that these decisions support a narrow
view of causation and, therefore, provide the answer to the question before us.
[39]
In Amos, the appellant had been seriously injured in California
when he was shot during an attack in which six individuals attempted to break
into the van he was driving. The appellant did not stop, but tried to escape.
He was shot in the spinal cord, but managed to keep driving until he had
distanced himself from his assailants.
[40]
The appellant was insured under a standard automobile insurance policy
with the Insurance Corporation of British Columbia, a provincial Crown
corporation established to provide universal automobile insurance to motorists
in that province. The statutory provision at issue was s. 79(1) of the Revised
Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg.
447/83, as amended by B.C. Reg. 335/84, Sch., item 19, and B.C. Reg. 379/85,
Sch., item 31:
79.
(1) Subject to subsection (2) and sections 80 to 88, 90, 92, 100, 101 and 104,
the corporation shall pay benefits to an insured in respect of death or injury caused
by an accident that arises out of the ownership, use or operation of a vehicle
and that occurs in Canada or the United States of America or on a vessel
travelling between Canada and the United States of America.
[41]
The question before the Court in that case was whether the appellant’s
injuries were “caused by an accident that arises out of the ownership, use or
operation of a vehicle”. The Court then developed the following two-part test
to be applied in interpreting s. 79(1):
1. Did
the accident result from the ordinary and well-known activities to which
automobiles are put?
2. Is
there some nexus or causal relationship (not necessarily a direct or proximate
causal relationship) between the appellant’s injuries and the ownership, use or
operation of his vehicle, or is the connection between the injuries and the
ownership, use or operation of the vehicle merely incidental or fortuitous?
[Emphasis deleted; para. 17.]
[42]
The Court concluded that the first part of the test had been met, since
the appellant had been driving the van when the injuries occurred. It also
determined that the van was not merely the “situs” of the
shooting since the shooting was a direct result of the assailants’ failed
attempt to gain entry into the appellant’s van. Therefore, the appellant’s
injuries arose out of the ownership, use or operation of the van, which met the
second part of the test. The Court stated, “Generally speaking, where the use
or operation of a motor vehicle in some manner contributes to or adds to the
injury, the plaintiff is entitled to coverage” (para. 26).
[43]
In Vytlingam, the respondents were driving on a highway when
their vehicle was struck by a large boulder dropped from an overpass. They
suffered devastating injuries. There was no question that the respondents were
entitled to benefits under their policy. However, they also sought to recover
civil damages from their insurer under the policy’s “inadequately insured
motorist” coverage on the basis that one of the two tortfeasors was an
inadequately insured motorist. The issue was whether the use of that
individual’s vehicle in transporting the tortfeasors and the boulders to and
from the overpass was enough to conclude that the respondents’ injuries were
sufficiently connected to the use or operation of the tortfeasor’s vehicle, and
therefore that the claim was based on a tort committed by a “motorist”. If so,
the respondents’ insurer would be obliged to pay under the inadequately insured
motorist coverage, that is, to stand in the shoes of the tortfeasor and pay the
amount the tortfeasor ought to have paid by way of civil damages.
[44]
The relevant portion of the insurance policy read:
. . .
the insurer shall indemnify an eligible claimant for the amount that he or she
is legally entitled to recover from an inadequately insured motorist
as compensatory damages in respect of bodily injury to or death of an
insured person arising directly or indirectly from the use or operation of an
automobile. [Emphasis added by Binnie J.; para. 5.]
[45]
Therefore, the tortfeasor had to be at fault “as a ‛motorist’” for
this provision to apply (para. 5). In other words, unlike in Amos and
unlike in the present appeal, the provision required the presence of an
at-fault motorist. Moreover, Vytlingam did not concern statutory
no-fault benefits.
[46]
The Court held that the provision required an unbroken chain of
causation linking the conduct of the motorist, as a motorist, to the injuries
in respect of which the claim was made. The vehicle had to be implicated in
those injuries in a manner that was more than merely incidental or fortuitous.
Although the vehicle contributed in some manner to the tortfeasor’s ability to
commit the tort that caused the injuries, the Court found that the tortfeasor
nevertheless did not commit the tort in his capacity as an at-fault “motorist”
within the meaning of the policy. The dropping of the boulder constituted an
activity severable from the use or operation of the vehicle.
[47]
Both Amos and Vytlingam can be distinguished from the case
at bar. First, neither of those cases dealt with the kind of broad remedial
legislation in force in Quebec. Although the insurance scheme in Amos
also provided no-fault benefits, claimants were entitled to commence civil
actions with respect to pain and suffering and economic loss. The availability
of civil actions indicates a different legislative intent, one not nearly as
broad as Quebec’s scheme. In Vytlingam, only part of the insurance
scheme involved no-fault benefits, as civil actions were provided for in some
cases. Further, Vytlingam was not directly concerned with the provincial
scheme, but was decided on the basis of the wording of the respondents’
insurance policy.
[48]
Second, the facts of the three cases vary considerably.
In Vytlingam, there was a clear intervening act — the tort — that was
completely severable from the motorist’s use or operation of the vehicle.
Notably, and unlike Mr. Rossy in the instant case, the insured was not making
use of the vehicle at all at the time of the accident. In Amos, even
though the damage was caused by a gunshot wound, the Court still found that the
motorist was covered on the basis that the use or operation of the vehicle had
added to the injuries in some way. Although Amos is different from this
appeal in many respects, the result in Amos nevertheless supports a
broad view of causation and not the narrow approach the respondents propose.
[49]
Finally, the provisions at issue in Amos and Vytlingam
were worded differently from the one in the case at bar. In Amos, the
issue was whether the injuries were “caused by an accident that arises out of
the ownership, use or operation of a vehicle”. In Vytlingam, the Court
had to determine whether an at-fault motorist’s actions had led to damage
“arising directly or indirectly from the use or operation of an automobile”.
This appeal turns on whether the incident that killed Mr. Rossy was an
“accident” within the meaning of the Act, that is, whether it was an event in
which there was “any damage caused by an automobile, by the
use thereof or by the load carried in or on an automobile”.
[50]
With respect to the difference between the expressions
“caused by” and “arising out of” the Court stated in Amos that “[t]he
phrase ‘arising out of’ is broader than ‘caused by’, and must be interpreted in
a more liberal manner” (para. 21). The respondents in the present case argue
that the same should be said of the provision at issue here. Had the
legislature intended to create a sweeping provision, it could have used the
words “arising out of” instead of “caused by”.
[51]
As we have seen, the facts and the applicable legislative scheme in Amos
differ substantially from the ones at issue in this appeal. Further, the words of a provision cannot be interpreted in isolation. The
legislative scheme provides the necessary context for their interpretation.
This contextual approach is especially relevant in the case of remedial
legislation such as Quebec’s no-fault insurance scheme. It would be incongruous
to construe broader legislation — the Act at issue in this appeal — more
narrowly than the scheme at issue in Amos. Vytlingam and Amos
are of interest from a comparative perspective but do not resolve the issue of
statutory interpretation that the Court must settle in this appeal.
C.
Applicable Test and Outcome
[52]
Each case must be considered on its facts. However, at
a minimum, an accident arising out of the use of a vehicle as a means of
transportation will fall within the definition of “accident” in the Act and
will therefore be “caused by an automobile” within the meaning of the Act. Any
civil action in connection with the damage caused by that accident will be
barred and victims will have to file a claim with the SAAQ. The vehicle’s role
in the accident need not be an active one. The mere use or operation of
the vehicle, as a vehicle, will be sufficient for the Act to apply. This
interpretation follows from a straightforward application of the principles
developed in Pram. It is in line with the jurisprudence and the
literature, and it gives effect to the objective of the legislative scheme.
[53]
On the facts of this case, the Act applies to Mr. Rossy’s accident.
Although the vehicle may have been stationary or moving through an
intersection, the evidence on the record is that Mr. Rossy was using the
vehicle as a means of transportation when the accident occurred. This is enough
to find that the damage arose as a result of an “accident” within the meaning
of the Act and that the no-fault benefits of the scheme are triggered.
Therefore, the respondents’ civil claim is barred and they must turn instead to
the SAAQ for compensation.
[54]
The Court of Appeal erred in interpreting the Act too narrowly. Such an
interpretation risks unduly restricting the intended application of Quebec’s
no-fault scheme and must therefore be rejected.
V. Disposition
[55]
As a result, the appeal is allowed with costs, the judgment of the
Superior Court is restored and the respondents’ action is dismissed.
APPENDIX
Automobile Insurance Act, R.S.Q., c. A-25
1. In
this Act, unless otherwise indicated by the context,
“accident”
means any event in which damage is caused by an automobile;
“automobile”
means any vehicle propelled by any power other than muscular force and adapted
for transportation on public highways but not on rails;
“damage
caused by an automobile” means any damage caused by an automobile, by the use thereof
or by the load carried in or on an automobile, including damage caused by a
trailer used with an automobile, but excluding damage caused by the autonomous
act of an animal that is part of the load and injury or damage caused to a
person or property by reason of an action performed by that person in
connection with the maintenance, repair, alteration or improvement of an
automobile;
.
. .
5. Compensation
under this title is granted by the Société de l’assurance automobile du Québec
regardless of who is at fault.
6. Every
person who suffers bodily injury in an accident is a victim.
7. Every
victim resident in Québec and his dependants are entitled to compensation under
this title, whether the accident occurs in Québec or outside Québec.
69. If
the victim is a minor and has no dependants on the date of his death, his
mother and father are entitled to equal shares of a lump sum indemnity . .
. .
If
the victim is of full age and has no dependants on the date of his death, the
indemnity shall be paid to his succession except where the property of the
succession is to be taken by the State.
83.57. Compensation
under this title stands in lieu of all rights and remedies by reason of bodily
injury and no action in that respect shall be admitted before any court of
justice.
Subject
to sections 83.63 and 83.64, where bodily injury was caused by an automobile,
the benefits or pecuniary benefits provided for the compensation of such injury
by the Act respecting industrial accidents and occupational diseases (chapter
A-3.001), the Act to promote good citizenship (chapter C-20) or the Crime
Victims Compensation Act (chapter I-6) stand in lieu of all rights and remedies
by reason of such bodily injury and no action in that respect shall be admitted
before any court of justice.
Appeal
allowed with costs.
Solicitors
for the appellant: Norton Rose OR, Montréal.
Solicitors for the
respondents Richard Rossy et al.: Grey, Casgrain, Montréal.