Westmount (City) v Rossy: Faulting Quebec’s No-Fault Insurance Law
As the proverb goes, when a tree falls in the forest, and no one is there to hear it, did it happen at all? When a tree hits a man while he is driving, and Quebec has a no-fault insurance law, then does that mean that, for civil liability purposes, it did not happen at all? This was the main issue in the case of Westmount (City) v Rossy,  2 SCR 136 [Westmount (City) v Rossy], which was decided by the Supreme Court of Canada (“SCC”) at the end of June. In a unanimous decision, the Court held that the city of Westmount could not be held civilly liable for a tree falling on the plaintiff, Mr. Rossy, while he was driving his car. They cited Quebec’s no-fault insurance law, and stated that the accident fit within the meaning of “accident” under the province’s Automobile Insurance Act, RSQ, c A-25 [Act]. While the SCC was not tasked with ruling on the constitutionality of Quebec’s no-fault insurance law, it factors in a significant way. As the only province in Canada with such a law, the case asks pointed questions about whether this kind of insurance scheme runs contrary to fairness and justice.
Background and Procedural History
The facts of the case are really simple. On one summer evening in 2006, Mr. Rossy was driving his car through the city of Westmount when a tree fell on his accident. The accident killed him. Shortly after his death, his family started an action against the City as the owner of the tree, submitting that the City had failed to properly maintain it. The plaintiff presented evidence about the state of the tree, a 100-year old poplar, at the time of the accident. According to the Quebec coroner, Paul Dionne, the tree had been ninety percent rotten, and thus posed as an immediate danger. In his opinion, the death was preventable. The trial judge at the Quebec Superior Court agreed. He found for the plaintiff, stating that the “[t]he cause of the incident was totally independent of the operation of the automobile and liability is not precluded by Quebec’s no fault system of automobile insurance” (Rossy c Westmount (Ville de), 2008 QCCS 4471, para 30). The appellate level court, the Court of Appeal of Quebec, also found for the plaintiff. In the opinion of Justices Thibault, Dufresne and Cournoyer, the allegations led to the conclusion that there was nothing to connect Mr. Rossy’s injuries with the fact that he was in a vehicle, thereby sidestepping Quebec’s no-fault insurance law:
It is true that the young man was in an automobile when the tree fell on it, but there is nothing that can connect the injury he suffered with the fact that he was in an automobile. The automobile is merely what he happened to be in when the tree fell. He could just as well have been walking, cycling, rollerblading, etc., and suffered the same injury (Rossy c Westmount (Ville de), 2010 QCCA 2131, para 40)
On Appeal to the Supreme Court
The Supreme Court had to figure out into which statutory framework Mr. Rossy’s accident fit: the Automobile Insurance Act or the general law of civil liability under the Civil Code of Quebec, SQ 1991, c 64.
According to art. 165(4) and 75.1 of the Code of Civil Procedure, CQLR c C-25, the automobile insurance scheme would apply if the injury resulted from an accident caused by an automobile. The Act would govern compensation for personal injury. More importantly, the Act would preclude the respondents from suing the City under the general law of civil liability – ergo, no-fault insurance law.
So, to begin, the Court needed to determine whether the accident which claimed Gabriel Rossy’s life counts as an automobile accident under the Act. Specifically, the Court had to determine what “damaged caused by an automobile, by the use thereof or by the load carried in or on an automobile” means for the purpose of s. 1 of the Act.
Case Law, Legislative Framework and Academic Scholarship
Justice LeBel penned the decision on behalf of his colleagues on the Court. He surveyed sources of law and legal scholarship: prior cases concerning the applicability of the Act and civil liability in Quebec, the legislation itself and academics who have commented on the legislation. The sources that prove to be the most useful are s. 41 of the Interpretation Act, RSC, c I‑16, s 41 and the case of Productions Pram Inc. v Lemay,  RJQ 1738 (QCCA) [Pram].
First, Justice LeBel noted that the Act is remedial legislation. The SCC was tasked with interpreting it, which is why it turned to the Interpretation Act. The Interpretation Act instructs the Court to give a large and liberal interpretation to statutory provisions, among other things. So in Pram, the Court stated that, to decide whether the automobile insurance law applies, a court must not look for a traditional causal link between the fault and damage, as is usually done in delictual or quasi-delictual civil liability cases. (A delict an intentional or negligent act, which gives rise to a legal obligation between parties, in the absence of a contract between them.) That kind of causal relationship is not a necessary condition for the Act to snap in. The SCC, led by Justice LeBel, reaffirms the principles from Pram as a useful guide to the interpretation of the Act.
Following Pram and other cases, the SCC concluded: “…At a minimum, an accident arising out of the use of a vehicle as a means of transportation will fall within the definition of ‘accident’ in the Act and will therefore be ’caused by an automobile’ within the meaning of the Act” (para 52). The Court underlined that the vehicle’s role in the accident need not be an active one. Justice LeBel offered some further clarification: “The mere use or operation of the vehicle, as a vehicle, will be sufficient for the Act to apply” (para 52). In his opinion, this interpretive guide arose from principles developed in Pram, and is in line with the objective of the legislative scheme.
Turning to the facts of the case, Justice LeBel argued that the Act applied to Mr. Rossy’s accident. There was some debate as to whether or not his car was in motion at the time of the accident. Even if it were stationary, there was evidence that Mr. Rossy was using the vehicle as a means of transportation when the tree fell on his car; that is, he was trying to get from Point A to Point B. In the opinion of the Court, this was sufficient to find that the “damage arose as a result of an “accident” within the meaning of the Act and that the no-fault benefits of the scheme are triggered” (para 53). Since the Act applied, the Rossy family’s civil claim has to be barred. The victim’s parents and siblings could only turn to the Société de l’assurance automobile du Québec (“SAAQ”) for compensation.
Justice LeBel therefore found the appellate court’s reasoning to be too limited. Both the trial judge and the judges on the Court of Appeal interpreted the Act so narrowly that it restricted the intended application of Quebec’s no-fault scheme (para 54). The Court of Appeal’s decision was rejected and the appeal was allowed.
This was the first time the SCC examined Quebec’s no-fault insurance law, which is unique in Canada. Regardless of which way the Court was going to come down ultimately, the case was going to have far-reaching implications for the insurance industry, particularly for car accidents that are not car accidents at all. For example, some proponents of the Act argue that victims can benefit greatly from it. The objective of the Act was to make the system more efficient for everyone. By going to the SAAQ for personal injury compensation, the victim will be spared the hassle of finding a lawyer and initiating expensive court proceedings.
Others find the decision, and the Act itself, to be grating. Intuitively, it seems to be unfair to the victim – Mr. Gabriel Rossy, who lost his life at the age of 27 – and his family. Sure, we can admit that “freak accidents,” like trees falling down, lightening striking, etc., are tragic. But this was not merely a “freak accident.” As the coroner found in the first trial, the accident could have been wholly prevented if the City had taken necessary precautions, namely inspecting trees to make sure that they were structurally safe and then cutting down the ones that are not. (After the Rossy incident, the City cut down thirteen trees that posed as short- and medium-term risks.) A clear example can be used to highlight this point. Suppose Gabriel Rossy’s mother was walking the family dog on a sidewalk when a tree fell down and killed her. Not being in a vehicle, and not having the intention to transport herself from Point A to Point B, the Act would not kick in. Her family would have the opportunity to sue the City for civil negligence. In both cases – real and hypothetical – the City of Westmount was arguably responsible for the fatalities. So it seems unfair that the City can only be held responsible in one of the cases.
In Westmount (City) v Rossy, the highest court was expected to delineate the boundaries of Quebec’s no-fault insurance regime and provide guidelines as to how the Act could remedy injuries in accidents that are not conventional car accidents. The reason why the decision is so unsatisfactory to some of us is that the Court should have considered broader goals in rendering its decision. Although the description of the Act may be “no fault,” there was fault in this case, so the Court should have tried to square the Act with the broader goals of accountability and fairness. A more flexible interpretation of the Act would allow it to better accommodate future accidents, however freakish they may seem at first.