In Morrow v. Symons, a young man was seriously injured while being towed on inline skates. He sued the driver of the car towing him, as well as three your men who were occupants of the car at the time. In addition, he sued the parents of those three occupants.
The car was leased to the father of the youth who was driving at the time of the accident and was insured by Dominion of Canada.
Mr. Justice Laurence Pattillo ruled, on a motion for summary judgment, that Dominion of Canada was required to defend the three “occupant defendants” but owed no duty to defend the parents of those defendants.
As against the “occupant defendants”, the allegations included such things as failure to keep a proper lookout, encouraging the driver to speed, lying to the police, destroying evidence, facilitation of the plaintiff’s participation in a dangerous activity, knowing that he had consumed alcohol, interfering with the driver’s control of the vehicle, etc.
Key to Justice Pattillo’s ruling was s. 239(1) of the Insurance Act, which provides that every contract evidenced by an owner’s policy insures “the person named therein and every other person who with the named person’s consent drives, or is an occupant of, an automobile owned by the insured named in the contract” [emphasis added].
Section 224 of the Act defines “occupant” as a person “in or on an automobile, or moving into, on, out of, or off an automobile”.
After satisfying himself that the “occupant defendants” were insured under Dominion’s policy, His Honour considered whether the claim fell within the terms of the policy. Applying the “purpose” and “causation” tests of Amos v. Insurance Corp. of British Columbia, he held that they did.
The “parent defendants” were another story. The allegations against them (“failure to control, supervise, warn or instruct”) were held by Pattillo J. not to involve “use or operation” of the vehicle.