In Cernjul v. The Nordic Insurance Company of Canada, 2023 ONSC 559, the Ontario Superior Court (the “Court”) examined the issues of whether loud music played from a motor vehicle’s speakers constituted use and operation of said vehicle, and whether this use triggered the vehicle’s insurance policy for defence and indemnity.
There was an anti-abortion rally held in Thunder Bay, Ontario. Mr. Cernjul was attending a counter-protest in an adjacent parking lot. He parked his vehicle away from the main rally and set -up externally powered music speakers which were not controlled by his vehicle, but by his smart phone. The purpose of playing music from the deejay speakers with an amplifier was to disrupt the rally. Mr. Cernjul maintained that the music was not loud enough to cause hearing damage to any protestors or bystanders in the vicinity.
Three months after the rally, several plaintiffs sued Mr. Cernjul for personal injury damages arising from that playing of loud music. The plaintiffs allegedly sustained injuries including permanent hearing loss, neurological and psychological impairments, and lessened enjoyment of life. Mr. Cernjul’s vehicle was insured at the time by The Nordic Insurance Company of Canada (“Nordic”) and he requested that Nordic defend and indemnify him in the plaintiffs’ action. Nordic denied Mr. Cernjul’s request on the basis that plaintiffs’ cause of action fell outside the scope of the vehicle’s coverage and, therefore, Nordic’s duty to defend and indemnify Mr. Cernjul was not engaged.
The Court took this opportunity to set out the legal framework for considering an insurer’s duty to defend a claim against an insured. The threshold for establishing this duty is low; the “mere possibility” that a claim against the insured may succeed for coverage is sufficient to trigger the duty to defend. The Court emphasized that any analysis of the insured’s duty to defend should focus on the specific allegations against the insured and the facts which could be proven as true.
Looking more narrowly at an insurer’s duty to defend a claim against the insured owner of a motor vehicle, the Court relied on the Supreme Court of Canada’s decision in Amos v. ICBC, 1995 CanLII 66 (SCC). The Supreme Court of Canada reviewed the statutory language and outlined the two-part test for coverage and defence as follows: firstly, did the accident result from the ordinary and well-known activities to which vehicles are put? This part of the test concerns purpose. Secondly, if the accident does result from ordinary activities of a vehicle, is there some nexus or casual relationship between the injuries and the ownership, use, or operation of the vehicle, or is the connection merely incident? This speaks to the causation of the alleged injuries and damages.
Mr. Cernjul asserted that the use and operation of his vehicle was central to the plaintiffs’ claims, including parking in a parking lot and playing music, both of which are known and common uses of vehicles. Nordic took the position that the plaintiffs’ alleged injuries did not arise from the use of the vehicle to either store or convey personal property and, further, Mr. Cernjul’s use of external music speakers is not within the ordinary or common activities.
The Court’s analysis involved examining the true nature of the plaintiffs’ claims against Mr. Cernjul, as pleaded in the Statement of Claim, and considering the purpose of Mr. Cernjul’s vehicle at the time of the cause of action. The plaintiffs’ claims hinged on the operation of externally powered music speakers as part of a political protest and the alleged creation of a nuisance that caused injuries and losses to be proven. The Court held that, with respect to purpose, this was not the simple case of someone playing music from a parked car, both of which are ordinary and well-known activities. Mr. Cernjul’s deejay speakers were not connected to or powered by the vehicle, and the vehicle was a mere “platform” on which the speakers rested. This distinction meant that Mr. Cernjul’s actions to set-up the speakers and play music were wholly divested from the types of ordinary and well-known activities to which vehicles are put; the creation of the nuisance causing injuries was not related to the ownership, use, or operation of the vehicle.
The Court therefore dismissed Mr. Cernjul’s application for coverage and indemnity finding that his use of external music speakers did not fall within the scope of his existing insurance policy by Nordic.
What this decision indicates is that insurers must carefully examine the pleaded claims against their insureds when considering whether to defend and indemnify. It remains to be seen how the Court will deal with vague or improper facts pleaded in the Statement of Claim and whether this may trigger the insurer’s duty to defend. Any consideration should involve analysis of the presumptive plaintiff’s claims and the purpose of the insured’s actions which gave rise to the alleged tort.
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