Cernjul v. The Nordic Insurance Company of Canada, 2023 ONSC 559
The use of one’s mini-van as a literal 'platform' for political expression is unlikely to trigger liability coverage under a motor vehicle policy. The recent dismissal of an insured’s duty to defend application in Cernjul illustrates a straightforward application of the Supreme Court of Canada’s two-part “use and operation” test to an outlier set of facts, leading to a predictable result.
This duty to defend decision arose from the insured’s attendance at a “counter-protest” to an anti-abortion rally in Thunder Bay. The underlying action alleges that he committed a nuisance and injured two plaintiffs when, intending to disrupt the anti-abortion rally, he played loud music from DJ speakers carried in the hatch area of his mini-van. In her reasons, Nieckarz J. observed that the external speakers were connected to the insured’s phone and were not powered by the mini-van’s electrical system. The vehicle was used to transport the speakers and to hold them while music was playing.
After being sued by two protesters for allegedly causing hearing damage and neurological complications, the insured tendered for defence under his automobile liability policy. The insurer denied coverage, asserting that the allegations did not arise from his use and operation of the insured vehicle.
Dismissing the application for coverage, Nieckarz J. observed that “the use of a vehicle must be more than simply providing an ‘opportunity’ for the alleged damage to be inflicted. The loss must arise from a risk using the vehicle that arises in the ‘ordinary course of things’”. The ensuing analysis identified the “use and operation” test, from Amos v. ICBC., [1995] S.C.J. No. 74, which requires that two simple questions be addressed when assessing whether allegations against an insured trigger coverage under a motor vehicle liability policy:
Did the accident result from the ordinary and well-known activities to which automobiles are put? [purpose test]; and,
If so, is there some nexus or causal relationship between the injuries and the ownership, use or operation of the vehicle, or is the connection merely incidental? [causation test]
With respect to the “purpose” question, Nieckarz J. opined that the alleged tort did not occur in the course of ordinary and well-known uses of a vehicle. Observing the lack of any real connection between the speakers and the insured vehicle, the Court explained:
… The fact that [the insured] and the speakers were transported to the site in the Vehicle, which is a well-known activity for which vehicles are put, does not change the fact that the dominant purpose at the time the tort is alleged to have been committed was nothing more than a platform for the speakers.
On the second question, Nieckarz J. observed that no act of actually operating the insured vehicle was alleged to have caused harm to anyone and opined that the necessary causal relationship between the plaintiff’s alleged injuries and the insured vehicle’s use was not present. The Court concluded that insured’s allegedly tortious use of the speakers was “an event wholly severable from” his use and operation of the mini-van. Nieckarz J. explained:
… the Vehicle is implicated in a manner that is merely incidental. It was not the use and operation of the Vehicle that is alleged to cause the plaintiffs’ injuries in the statement of claim. While the Vehicle is implicated, it is implicated merely as the site used by [the insured] to place the speakers that are alleged to have caused the damage.
… [the plaintiffs] do not allege that anything associated with the transportation of [the insured] or the speakers in the vehicle, or the act of parking, caused the nuisance that they allege caused their damages. …
Of course, this is not a particularly surprising outcome, which aligns with the Supreme Court’s later decision in Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46. Here, the tortfeasor used a vehicle to transport boulders to an overpass, which were dropped into traffic for his own amusement. The off-coverage result in Vytlingam turned upon the second question of causation. On this issue, Binnie J. observed that “For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made”. The tortfeasor’s rock throwing was an independent act that broke the chain of causation and consequently there was no coverage.
As was the case Vytlingam, there wasn’t an unbroken chain of causation linking the insured’s conduct as a motorist to the protesters’ alleged hearing loss. The allegations in Cernjul did not meet either branch of the conjunctive “Amos Test” and the insured was not entitled to be defended by the insurer. In any event, the mere presence of the insured vehicle as a platform for a separate instrument of harm (i.e. the speakers) should not, without more, trigger liability coverage under a motor vehicle policy.