Ontario Superior Court considers Indirect use of an auto, post-Herbison

The Supreme Court of Canada’s 2007 decision in Lumbermens Mutual Casualty v. Herbison isn’t among the authorities cited in the Dec. 3, 2008 Ontario Superior Court of Justice case Lafond v. Roksa, but its influence was certainly manifest.
Lafond once again considered the issue of injuries arising “directly or indirectly from the use or operation of a vehicle.” The result this time, however, was squarely within the framework established by the Supreme Court in Herbison. 
The Ontario Superior Court decided auto insurance policyholder Dale Roksa was not liable under her auto policy for a road-rage incident that ended with her family members beating another driver after both cars had parked in a driveway.
James Roksa was driving Dale’s car and Scott Roksa was a passenger when the Roksa car swerved in front of a car driven by John Lafond in the east end of Hamilton. The Roksas sped up and slowed down, driving erratically in front of Lafond, giving him the finger at times.
Lafond followed the Roksa car until the Roksa car parked in the driveway of a friend of Lafond’s.
Lafond parked his car behind the Roksa car. He took off his glasses and then, realizing that it might be interpreted as an aggressive gesture, he put them back on. Words were exchanged and Lafond grabbed James’ shirt, prompting a beating that left Lafond permanently blind in his left eye.
Lafond sued under Dale’s auto insurance policy, because James and Scott used Dale’s car to drive to the point of the fight.
The court found no liability under Dale’s policy, because events following the parking of the cars interrupted the “chain of causality” that is necessary to show that the auto was indirectly the cause of an injury.
“Although there was some activity in the Roksa motor vehicle which can be described as road rage or making of indecent gestures to Lafond, this activity does not necessarily end in assault,” Ontario Superior Court of Justice William J. Festeryga wrote, citing Amos, the interpretation of which was at the centre of the Supreme Court case.
“Had Lafond not followed the Roksa motor vehicle into the driveway then the assault may not have occurred. The following of the Roksa motor vehicle into the driveway is a break in the chain of causation in my view.”