Russo v. John Doe is a very recent decision from the Ontario Court of Appeal dealing with the recurring issue of coverage under the OPCF 44R for the negligence of an uninsured or inadequately insured motorist. The appellant was a tragic victim of a drive-by shooting. She brought an action against her insurer, the respondent, seeking compensation for her injuries. The insurer denied coverage, and argued that the accident did not arise as a result of the ownership, use, or operation of a car, but rather as a result of an intervening act, the shooting. The Court of Appeal agreed with the insurer. Following the recent decisions of the Supreme Court of Canada on this issue, the Court of Appeal stated that in order to trigger the OPCF 44R Endorsement, the at-fault defendant’s tort must be committed as a “motorist”. There are two aspects to this inquiry - the purpose test and the causation test. The Court of Appeal found that the purpse test had been met. It did not matter that the motorist intended to commit a criminal act. His subjective reasons for using the car were not relevant to the inquiry. The appellant, however, failed to meet the causation test. The Court of Appeal accepted the argument that the shooting was a distinct and severable act from the operation of the car. In order words, it was incidental that the car was used in the shooting. The Court of Appeal emphasized that it is not reasonably expected that automobile insurance will cover injuries or death arising from the joint act of a group of tortfeasors simply because one tortfeasor’s involvement in the tortious act consists of operating a motor vehicle.

The Court of Appeal’s decision is interesting in that it appears to apply a strict application of the decisions of the Supreme Court in Vytlingam and Herbison. In the latter cases, the tortfeasor had already exited the vehicle when the tort was committed. Arguably this would move the facts in Russo closer to the required threshold for causation. It will be interesting to see whether the courts continue to apply a more strict application of the causation test, or whether at some point in time there is a relaxing of the standard.  

Jim Davidson