The plaintiff was successful in arguing that injuries sustained during an assault in which the assailants made use of his vehicle were injuries that arose directly from the use or operation of the vehicle.
Martin v. 2064324 Ontario Inc.,  O.J. No. 5471, December 5, 2011, Ontario Superior Court of Justice, D.K. Gray J.
The plaintiff was assaulted and injured by two unknown assailants. In the course of the assault, the assailants made use of the plaintiff’s vehicle. The plaintiff brought an action against multiple defendants, including his own insurer under the unidentified motorist provisions of his policy and he also brought a claim for statutory accident benefits. The insurer brought a motion for summary judgment on the basis the plaintiff’s injuries did not arise from the use or operation of the automobile, but rather, the assault.
The plaintiff was assaulted when he was loading his vehicle in a parking lot. The assailants first forced him into the trunk of his vehicle, but then forced him into the front seat to assist in shifting the gears of the car. They drove to another parking lot and the plaintiff was pulled from the car and the assault continued. The vehicle was driven over the plaintiff’s foot; whether this was accidental or deliberate was not clear. The assailants then drove off in the vehicle and it was later found abandoned nearby.
In order to be eligible for statutory accident benefits the plaintiff had to be able to show the injuries arose directly out of the use or operation of the motor vehicle. For a claim under the unidentified motorist provisions it had to be shown the injuries arose directly or indirectly from the use or operation of a motor vehicle. The test for statutory accident benefits was considered first by the court as it was the more strict of the two.
In Amos v. ICBC,  3 S.C.R. 405, the Supreme Court of Canada established a two-part test to determine whether an injury arises out of the use or operation of an automobile. The first part, the “purpose test”, asked:
1. Did the accident result from the ordinary and well-known activities to which automobiles are put?
In this case the insurer conceded that the “purpose test” had been met.
The second part of the test addresses the issue of causation. Following Amos the wording of the statutory accident benefit provisions in Ontario was amended and subsequent caselaw established a narrower “causation test” applicable to statutory accident benefits in that province as follows:
2. Is there a direct or proximate relationship between the plaintiff’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, indirect or merely incidental or fortuitous?
The court concluded that the injuries caused to the plaintiff in this case were directly connected to the use and operation of his vehicle. He was forced to assist one of the assailants in driving the car while the assaults were being committed; the car was driven to another parking lot where the assaults were continued; and the car was directly used to commit one of the assaults, namely, driving over his foot. As a result of this conclusion regarding the statutory accident benefits claim, there was no doubt that the plaintiff’s claim under the unidentified motorist provision could also be maintained. In the result, the court held the plaintiff’s injuries had occurred as a result of an “accident” as defined in statutory accident benefits provisions, and arose directly or indirectly from the use of operation of his automobile.