At the Court: Quebec’s No-Fault Insurance Scheme, Elements of Kidnapping and Material Contribution Test at the SCC

If a tree falls on a car, does it constitute a car accident under Quebec’s car insurance scheme? The Supreme Court of Canada will have the opportunity to rule on this matter next week when it hears City of Westmount v Richard Rossy et al.


On April 1, 2006, a tree collapsed on a car, killing Gabriel Rossy. His family subsequently brought an action against the City of Westmount, claiming that they were negligent in maintaining the tree. Westmount moved to dismiss the action because compensation is outlined by the Automobile Insurance Act, s A-25 [the Act], which provides for a no-fault system.

Relying on Productions Pram inc c Lemay, [1992) RJQ 1738 (CA) (French version only), the Superior Court ruled in favour of Westmount, dismissing the action. The court found that the accident was covered by the act, relying on a large and liberal interpretation. It was sufficient that the accident resulted in “damage cased by an automobile,” which is within the meaning of section 1 of the Act. The Court of Appeal set aside the decision, affirming that the falling tree was the sole cause of the death. Though the accident occurred in the car, the court held that it “was merely where Mr. Rossy was sitting where the tree collapsed.” The court found that the no-fault compensation scheme does not apply in these specific circumstances. This decision is being appealed at the Supreme Court.

The appellant is arguing for a literal interpretation of the Act, which defines an accident covered by the act in the following way:

…damage caused by an automobile  means any damage caused by an automobile, by the use thereof or by the load carried in or on an automobile, including damage caused by a trailer used with an automobile, but excluding damage caused by the autonomous act of an animal that is part of the load and injury or damage caused to a person or property by reason of an action performed by that person in connection with the maintenance, repair, alteration or improvement of an automobile. (translation)

The tree fell on the car, but the car ultimately caused the damage.

The Respondents argue that the Court of Appeal made no error when providing a structure consistent with the law and common sense for making that determination. While he was in the car at the time, the falling tree killed him, and that fact had nothing to do with him being in a car.

In creating a no-fault system, the legislature wanted to make the kind of fault irrelevant for the financial outcome, given the frequency of car accidents. This system works because car accidents are often a matter of momentary inattention or error; tort actions for vehicular accidents are not usually an effective deterrent. Negligently maintaining the tree does not fall into that category, and deferring compensation through the Act would create a further disincentive for the government of Quebec to maintain its roads, as any accident that occurred on the road would be covered. Just how much noise a falling tree can make is yet to be determined.

To Be Continuous?

The Supreme Court of Canada (SCC) will have the opportunity to define the requisite elements of a kidnapping charge when it hears the case of Sam Tuan Vu v the Crown on February 15. This case comes to the Court after a series of high profile trials regarding the abduction of a young Vancouver man in April 2006.

Graham McMynn was forced from his car at gunpoint in front of his then-girlfriend (now wife), Jacklin Tran. No ransom demand ever came from the abductors and no reason for the abduction was ever made. After eight days of captivity, having been moved around from house to house blindfolded, Vancouver Police found and freed McMynn. Five men were charged with kidnapping and unlawful confinement. At trial, three of the five men were found guilty while two were acquitted. Of those three, two were convicted of kidnapping, while Vu was charged with forcible confinement.

Neither Vu nor the Crown was satisfied with these charges. The British Columbia Court of Appeal (BCCA) in R v Vu, 2011 BCCA 112, allowed the Crown’s appeal against the acquittal on the kidnapping count, and dismissed the cross-appeal against Vu’s conviction for unlawful confinement.

While the difference between kidnapping and forcible confinement can be seen in sections 279(1) and 279(2) of the Criminal Code, the significance of this difference lies in the sentencing provisions: kidnapping has a maximum sentence of life and forcible confinement has a maximum sentence of five years. The charges turned on the definition of kidnapping. The court held that that kidnapping is a continuous offence that begins with an initial abduction and lasts continuously throughout the entire period of confinement. It ends only with the rescue or escape of the victim. If there is sufficient evidence to find a charge of forcible confinement, there is sufficient evidence to convict Vu of kidnapping.

The SCC has the opportunity to revisit the issue of crimes that constitute a continuous transaction, as it did, notably, in Bell v the Queen, [1983] 2 SCR 471 and R v Paré, [1987] 2 SCR 618.

Testing the Material Contribution Test

In Clements (Litigation Guardian) v Clements, 2010 BCCA 581, the plaintiff was injured when her defendant-husband crashed his motorcycle on which she was a passenger. The trial judge found that the rear tire burst due to overloaded storage compartments and excessive speeding. Although the plaintiff’s ‘but for’ argument failed in the causation analysis, her claim passed the ‘material contribution’ test. This alternative is not simply a substitute for the ‘but for’ test, and is used in circumstances that preclude or cannot validate a ‘but for’ argument.

There are two principle types of material contribution: circular causation, in which it is impossible to prove whether one or the other of two possibilities occurred (cf. Cook v Lewis, [1951] SCR 830), and dependency causation, in which the plaintiff’s argument depends on a key piece of evidence that can prove the claim, but is unavailable through not fault of her own (cf. Walker Estate v York Finch Hospital, [2001] 1 SCR 647).

A third category exists, in which a plaintiff can demonstrate that because of some limitation due to a lack of knowledge—often scientific—it is impossible to prove that the negligence of the defendant caused the type of harm the plaintiff suffered. In such circumstances, the plaintiff will win unless the defendant can show his actions did not contribute to the harm. This case proceeded and was successful on these grounds at trial but was overturned by the Court of Appeal.

The Supreme Court has granted leaved to appeal and will review whether the BCCA was correct in restating and further narrowing the material contribution test and its applicability.

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