Is an Injury Sustained While Clearing Snow off a Vehicle an “Automobile Accident”?
This article is a modified version of a case comment initially published by Éditions Yvon Blais in November 2017(EYB2017REP2353).
The Automobile Insurance Act1 (the “Act”) is intended to facilitate the indemnification of victims of road accidents, through a no-fault insurance regime. However, not every mishap in connection with an automobile necessarily constitutes an “accident” as defined in the Act, as the decision in Blackburn v. Vaillancourt2 shows.
While clearing snow from his vehicle, the plaintiff Laval Blackburn (“Blackburn”) fell on a patch of ice in the parking area of the defendant Marie-Josée Vaillancourt (“Vaillancourt”).
Blackburn filed a claim with Quebec’s automobile insurance board, the Société d’assurance automobile du Québec, which denied the claim on the grounds that clearing snow from a vehicle is an action in connection with the maintenance of an automobile, and is thus excluded from the Act’s definition of “damage caused by an automobile”, such that Blackburn’s injury was not the result of an “accident” as defined in the Act3.
Faced with this denial, Blackburn filed a civil action against Vaillancourt, who petitioned for the dismissal of the action on the grounds that clearing snow from an automobile is (1) pursuant to the use of the automobile, and (2) not an action in connection with the maintenance of an automobile4.
The Court had to decide whether the act of clearing snow from an automobile constituted a use of the vehicle, and if so, whether that act came within the maintenance exclusion. If it did not constitute a use of the vehicle, or if it was an excluded act, the accident that coincided with it was not covered by the public insurance regime, such that a civil suit became possible.
The Court emphasized that the provisions of the Act must be interpreted broadly and liberally, to the extent that the interpretation remained plausible and logical5. In other words, it was not sufficient that an automobile was merely present at the scene of the accident; it had to have been involved – in some way – with the accident.
The Court was also of the view that whether or not the automobile was actually being used did not depend on the original intent of the plaintiff. In this case it was solely the ice on the surface of the parking lot that caused Blackburn to fall, independently of the presence of the automobile or the use he intended to make of it.
In her defence, Vaillancourt maintained that Blackburn’s use of the automobile was part of a continuum, in that he had moved it just before the accident and intended to drive it again after clearing the snow from it. According to the Court, however, this concept of a continuum runs counter to the spirit of the Act and gives it a much greater scope than intended, which is neither plausible nor logical6.
The Court concluded that Blackburn’s clearing of snow from his stationary vehicle could not be characterized as a “use” thereof but was rather an act of maintenance falling within the statutory exclusion. Consequently the motion to dismiss was denied and the civil suit was allowed to proceed.
Sustaining an injury while clearing snow from one’s car does not spontaneously bring to mind the idea of an automobile accident. At first blush, this decision does not appear to depart from the virtually unanimous case law holding that the Act does not cover this type of situation because clearing snow does not constitute the use of an automobile and/or because such an action is connected with the maintenance of the vehicle7.
However, the Court of Québec concluded in a 2013 judgment8 that a fall sustained while clearing snow off a vehicle was an accident as defined in the Act9.
A. The use of an automobile
With the constant broadening by the superior courts of the concept of use10, the decision we are concerned with here may seem incongruous to an informed observer.
The Court of Appeal has held that falling on glare ice while walking around one’s vehicle after helping another passenger get in it can be characterized as part of using an automobile11. By the same token, slipping and falling on a wet floor when going to release the hook on the cargo box of a truck was also so considered12.
In the decision we are concerned with, the judge dismissed the “continuum” argument in favour of a “fractioning” of Blackburn’s actions, i.e. driving the vehicle momentarily and then stopping and clearing the snow from it. However, the Court of Appeal explained in Brisson that fractioning the activities inherently associated with using an automobile and the momentary interruption of such activities was purely artificial13.
B. The maintenance exclusion
Upon reading the journal of the parliamentary debates14, it is far from clear that the maintenance exclusion covers maintenance in connection with the normal use of a vehicle, such as clearing snow from it or removing ice from its windshield or wipers. In such situations the vehicle is essentially in operation and only a momentary interruption in normal use is required. Moreover, such actions take place immediately before driving the vehicle, as opposed to changing the oil or washing the vehicle.
It is not enough to merely touch an automobile at the moment of sustaining an injury for that situation to constitute an “automobile accident” within the meaning of the Act. Each situation must be assessed in terms of whether it has a plausible, logical and sufficiently proximate nexus15 with an automobile or its use. It is not necessary for the injury to have been directly caused by the vehicle. It is sufficient that it occurred in connection with the general use of the automobile16.
As the exclusions provided for in the Act must be narrowly construed17, care must be taken not to unduly broaden their scope, and to remain within the bounds of what the legislature actually sought to exclude.
The Court of Appeal will have the occasion to rule again on this issue, as leave to appeal was granted by it as this article was being prepared18.
1 CQLR, c. A-25
2 EYB 2017-282892 (S.C.)
3 Section 1 of the Act defines an “accident” as “any event in which damage is caused by an automobile”.
4 Such that his injury came within the scope of the Act and he consequently had no cause of action due to the “no fault” nature of the regime under the Act.
5 Godbout v. Pagé, 2017 SCC 18, par. 28; Productions Pram Inc. v. Lemay, EYB 1992-63831, p. 4 [Productions Pram]
6 Par. 22 of the Court’s decision.
7 See in particular: Guichard v. Domaine de Parc Cloverdale, 2016 QCCS 1384; Dorion v. Mascouche (Ville de), 2014 QCCS 3727.
8 Beauchamp v. Propriété Provigo ltée, 2013 QCCQ 1322
9 The Court of Appeal refused to hear the appeal, given the purely theoretical nature of the case following the death of the plaintiff: Société de l’assurance automobile du Québec v. Propriété Provigo ltée, 2013 QCCA 1509.
10 See in particular: Rossy v. Westmount (Ville de), 2010 QCCA 2131, par. 31 (decision overturned on other grounds by the Supreme Court of Canada: Westmount (City) v. Rossy, 2012 SCC 30).
11 Société de l’assurance automobile du Québec v. 9172-5713 Québec Inc. (Cinéma Guzzo Inc. et Groupe Guzzo Pont-Viau Inc.), 2015 QCCA 126
12 Inter alia, it is well established that getting out of one’s vehicle is part and parcel of its use: Brisson v. Recyclage de papier Rive-Sud, 2016 QCCA 52 [Brisson].
13 Supra, note 14, par. 21
14 QUEBEC, NATIONAL ASSEMBLY. Journal des débats, 33rd Leg., 2nd session, No. 51 (December 12, 1988), p. 2355 (Jean-Paul Vézina): “[TRANSLATION] Someone who performs maintenance on their vehicle because it has broken down on the side of the road will still be covered. That is normal use of the vehicle and will continue to be covered.”
15 Productions Pram, supra, note 5
17 Société de l’assurance automobile du Québec v. Circuit Mont-Tremblant Inc., 2014 QCCA 1174, paras. 33 to 46
18 Leave to appeal granted from the bench by the Court of Appeal on October 16, 2017: Vaillancourt v. Blackburn, 2017 QCCA 1608).