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What Happened?

On July 20, 2014, the father and his minor daughter were passengers in a vehicle owned and operated by the father’s girlfriend, when the girlfriend crossed the centre line and collided with another vehicle. 

It was alleged that the girlfriend was driving while under the influence of alcohol.  As a result of the collision, the daughter sustained personal injuries.

After the accident, the daughter sued the father for negligent parenting. She alleged that he was negligent in permitting her to be transported in the motor vehicle of an impaired driver.

The girlfriend was an insured under the insurance company’s policy, which insured her vehicle.

The father moved for a declaration that he was an “insured person” within the meaning of the Insurance Actand that the insurance company was obliged to defend and indemnify him from claims made against him by his daughter.

The insurance company denied that it owed either a defence or an indemnity to the father, because the allegations of negligence against the father in the lawsuit brought by his daughter did not involve the “use or operation” by him of the motor vehicle. It argued that its obligations were not triggered for a passenger like the father unless there was a causal connection between his negligent acts or omissions and the use or operation of the vehicle. Finally, it stated that the daughter’s allegations against her father pertained to negligent parenting, not to his use or operation of a vehicle.

Issue

At issue was whether the insurer of the girlfriend’s motor vehicle was required to defend the father against his daughter’s claim.

The Law

Section 239 of the Insurance Act (the “Act”) states:

239 (1)   Subject to section 240, every contract evidenced by an owner’s policy insures the person named therein, and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage, 

(a)           arising from the ownership or directly or indirectly from the use or operation of any such automobile; and

(b)         resulting from bodily injury to or the death of any person and damage to property.

Additionally, s. 240 of the Act says that the insurer is not liable for any loss or damage occurring while a named excluded driver is driving.

Lower Court Decision

The lower court explained that in order to be entitled to a duty to defend, the claims alleged against them must be related to the use or operation of the vehicle.

As a result, the court found that the daughter’s claim against her father did not allege acts or omissions falling within the policy coverage, but rather related to negligent parenting. It dismissed the father’s motion.

The father appealed the decision, claiming that the motion judge misinterpreted the plain and ordinary meaning of s. 239 of the Act, by construing s. 239 narrowly against coverage, and by applying an improper causation test.

Court of Appeal Decision

The court found that the plain and ordinary meaning of section 239(1)(a) precluded recovery. It stated that the provision made it clear that to be covered, an occupant’s liability must be for loss or damage arising from the use or operation of the automobile. The court stated:

“Even though [the daughter]’s injuries arose from the use of a vehicle, [the father]’s liability for her loss or damage does not. His liability is alleged to arise from negligent parenting, not from anything he did or did not do as an occupant connected to the use or operation of the automobile. When the motion judge spoke of the absence of a causal connection this is what he was alluding to – the statutory requirement that the occupant’s liability must be caused by or connected to the use or operation of the automobile.”

The court agreed with the motion judge’s theory that the father’s liability for negligent parenting arising from a decision to put his daughter in an automobile operated by an impaired driver would be covered if he also got into the car, but not if he did not. 

It found that the plain language of the provision prevented the absurdity of coverage linked to his fortuitous and immaterial occupancy. 

As a result, the court dismissed the father’s appeal.

Get Advice

Family law cases are challenging for everyone involved.  Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.