by Kristen Hagg (Partner) and Thomas Nguyen (Summer Student)
In the Plante v Darling case, the Alberta Court of King’s Bench offered crucial insights into the interpretation of “use or operation” of a motor vehicle under the Motor Vehicle Accident Claims Act. Furthermore, it discussed the role of personal circumstances in the limitation period for filing a claim. Mr. Plante, the plaintiff, experienced psychological trauma following a fatal motor vehicle accident involving a pedestrian. The court confirmed that the accident arose from the vehicle’s intended use, and considering Mr. Plante’s serious psychological affliction and limited educational background, it was ruled that his claim was within the proper timeframe defined by the Limitations Act.
Alberta Court of King’s Bench Clarifies “Use of Operation” of a Motor Vehicle and Personal Circumstances Affecting the Commencement of the Limitation Period
Typically, it is the pedestrian hit in a motor vehicle accident that files a claim for personal injury. However, in some instances, the individual who hits the pedestrian has a claim that warrants proceedings.
In a recent decision from the Court of King’s Bench of Alberta, Plante v Darling, 2023 ABKB 335, Justice Poelman clarified what “use or operation” of a motor vehicle means under the Motor Vehicle Accident Claims Act and how personal circumstances can affect the limitation period for bringing forward a claim.
In this case, the Plaintiff, Mr. Plante, suffered psychological injuries after a tragic motor vehicle accident which resulted in the death of the defendant, Ms., Baptiste, who was walking on the highway after running out of gas. While Mr. Plante began suffering psychological disturbances shortly after the accident, due to his personal characteristics and circumstances, he did not recognize at that time that the symptoms were related to the accident and thus warranted bringing a claim in tort.
Ms. Baptiste was driving northbound on Highway 22 outside of Calgary. About 2km north of an intersection, her vehicle ran out of gasoline. She parked on the east (north-bound) shoulder of the highway and activated her four-way hazard lights. Ms. Baptiste left her vehicle (with a passenger inside) with the intention of obtaining assistance.
Mr. Plante was travelling south on Highway 22 and observed Ms. Baptiste’s vehicle parked on the shoulder with hazard lights. Mr. Plante slowed down, aware of the possibility of pedestrians in the vicinity if a vehicle had broken down.
After passing Ms. Baptiste’s vehicle, Mr. Plante noticed what appeared to be a person with a hand raised on his right side from the southbound shoulder. Mr. Plante swerved but was unable to avoid a collision. Ms. Baptiste died as a result of the impact.
Mr. Plante began to experience sleeping difficulties a week after the accident, and later developed anxiety issues and other emotional disturbances. A month after the accident, he attended psychological treatment where he was diagnosed with Post-Traumatic Stress Disorder and related psychological symptoms. A year after the accident, Mr. Plante contacted a lawyer to seek counsel regarding these injuries. The lawyer told Mr. Plante he did not have a claim and Mr. Plante dropped the idea of commencing any claim in relation to his injuries.
Two years after the accident, the Estate of the Deceased served a claim against Mr. Plante arising from the accident. Upon meeting with his Counsel appointed by his insurer, Mr. Plante learned he may have a claim that warranted the bringing of a proceeding as well. In response, Mr. Plante filed a Statement of Claim against Ms. Baptiste’s Estate. Ms. Baptiste’s Estate was noted in default, following which the Administrator of the Motor Vehicle Accident Claims Act filed a defence.
The summary trial was directed to determine two issues:
- Did the injuries to Mr. Plante arise from the use or operation of a motor vehicle as set out in the Motor Vehicle Accident Claims Act?
- Is Mr. Plante’s claim statute barred by the Limitations Act?
Interpreting “use or operation” as set out in the motor vehicle accident claims act
Sections 4 and 5 of the Motor Vehicle Accident Claims Act are relevant to analyzing the “use or operation” issue:
s. 4(1) When, in an action for damages for bodily injury to or the death of a person arising out of the use or operation within Alberta of a motor vehicle, a plaintiff notes a defendant in default, the plaintiff shall forthwith serve on the Administrator a notice in writing informing the Administrator of the facts, and the plaintiff shall not take the next step in the action until 30 days after the service of the notice.
5(1) When a person recovers in a court in Alberta a judgement for damages for bodily injury to or the death of a person arising out of the use or operation within Alberta of a motor vehicle, the person may, on the determination of all proceedings, including appeals, apply to the Administrator in the prescribed form for payment under this section of the amount of the judgement or of the amount of the unsatisfied portion of it.
The accident occurred when Ms. Baptiste was not in her vehicle. Therefore, the issue is whether Mr. Plante’s action is for “damages for bodily injury to […] a person arising out of the use or operation […] of a motor vehicle.”
As previously outlined by the Supreme Court of Canada in Vytlingam (Litigation Guardian of) v Farmer, 2007 SCC 46, Herbison v Lumbermens Mutual Casualty Co, 2007 SCC 47, and Amos v Insurance Corp of British Columbia,  3 S.C.R. 405, determining if there is coverage for use or operation involves two parts: “first to ask whether the defendant’s vehicle was being put to an ordinary and well-known activity at the time of the occurrence (the purpose test); and second, whether there was an unbroken change of causation linking the plaintiff’s injuries to the use and operation of the tortfeasor’s vehicle which is more than simply fortuitous or “but for” (the causation test)”.
The Purpose Test
The purpose test is established when the facts demonstrate that the motor vehicle is being used “as a motor vehicle,” and not for some ancillary purpose. As stated by Justice Poelman at paragraph 22, “the key to understanding the purpose test appears from examples of uses that would not meet the test”, such as using the vehicle as a diving platform, storing dynamite in a disabled vehicle, or negligently using the vehicle as a permanent prop to shore up a drive shed.
Jusice Poelman found that the purpose test was satisfied as Ms. Baptiste’s vehicle was used for transportation on the day of the accident.
The Causation Test
The causation test asks whether a tortfeasor’s conduct after using their vehicle can be considered “a not abnormal incident of the risk created by use of the vehicle or is likely to arise in the ordinary course of things”.
Justice Poelman held that there was an unbroken chain of causation between Ms. Baptiste’s normal use of her vehicle and her subsequent activities leading to the accident. Ms. Baptiste’s vehicle broke down and she left her vehicle to procure assistance. Motorists looking for assistance after running out of fuel are expected by highway users. This expectation was exemplified by Mr. Plante slowing down and being aware of potential pedestrians when he saw the parked vehicle. The deceased also did not abandon the use of her vehicle as she turned on hazard lights, left a passenger in the vehicle, and was only 40m away from her vehicle when she was struck. These facts were distinguishable from the case of Greenhlagh v ING Halifax Insurance Co (2004), 72 O.R. (3d) 338 (Ont. C.A.), where a driver left her stranded vehicle, attempted to walk back to a main road, became lost, fell into a river and suffered exposure and frostbite.
With the purpose and causation tests satisfied, Justice Poelman held that Ms. Baptiste’s actions arose out of her “use or operation” of a motor vehicle.
Navigating the discoverability rule in the limitations act
The second issue is the time it took for Mr. Plante to seek a remedial order for his injuries. Section 3(1) of the Limitations Act states that claimants must seek a remedial order within two years of when they know or ought to have known that they suffered an injury attributed to the conduct of the defendant and, further, that it warranted the bringing of a proceeding.
The Administrator plead the Limitations Act as a defence as Mr. Plante’s Statement of Claim was filed on October 31, 2017, more than two years after the date of the accident.
The Discoverability Rule
The discoverability rule states that the two-year period runs from the date “the claimant first knew, or in the circumstances ought to have known” of three elements: injury, attributable to the defendant and warranting a proceeding. Satisfying the discoverability rule is highly tethered to the facts of the case. In this case, Mr. Plante’s personal characteristics and the circumstances of the accident were crucial to determining if he knew or ought to have known he had a claim prior to October 31, 2015.
Mr. Plante suffered a serious psychological injury because of the accident and underwent medical and psychological treatment. However, the type of accident he was involved in did not suggest to him that he could be a plaintiff. Mr. Plante’s counsel described him as someone with no notable education and a limited support system.
Justice Poelman found that although Mr. Plante sought medical attention for psychological disturbances before October 31, 2015 he was not made aware until November 3, 2015, when he consulted with a psychologist, that he as suffering from PTSD and that it was associated with the trauma of the accident. Based on this finding of fact, Justice Poelman determined that Mr. Plante’s Statement of Claim was filed within two years of when he first ought to have known that the injuries suffered warranted the bringing of a proceeding.
The Administrator has filed a Notice of Appeal to the Alberta Court of Appeal. A date for the hearing has not yet been scheduled.
Tireless advocacy for victims of motor vehicle accidents
HMC Lawyers can assist clients that have suffered serious and catastrophic injuries in a car or other motorized vehicle accident, offering compassionate, dedicated advocacy in support of their claim for fair compensation.
Our litigators have significant years of experience in the courtroom and have successfully argued hundreds of cases on behalf of our clients. We are dedicated to getting our clients the best possible result, whether through a negotiated or mediated settlement, or by taking a case all the way to trial.
To speak to one of our lawyers, call 1-800-480-3534 or contact us online. We represent injured clients in Calgary and throughout Alberta.