Rolling in the Diep: When an Automobile Accident isn’t an Automobile Claim
Lawyers often find themselves litigating the meaning of a handful of simple words. To non-lawyers, these disputes can appear unnecessarily academic. However, when the same incident can be found to arise from the “use or operation of an automobile” for the purposes of entitlement to statutory accident benefits, yet not constitute an automobile claim for the purposes of a tort action, the practical importance of legal nuance becomes apparent.
The Ontario Court of Appeal’s decision in Diep v. Mac’s Convenience Stores Inc., 2026 ONCA 424 (“Diep”) is a striking example of how the characterization of a claim can shape the outcome of a case long before the merits are ever considered.
Background
In Diep, the plaintiff parked his vehicle in the parking lot of a convenience store before attending the store to purchase lottery tickets. When attempting to return to his vehicle, the plaintiff unlocked his car using his key fob and when he reached for the door handle, he slipped and fell on snow or ice, suffering injuries.
While the plaintiff’s application for statutory accident benefits was originally denied, the LAT ultimately found that the incident qualified as an “accident” under the Statutory Accident Benefits Schedule, concluding that Mr. Diep was in the process of entering his vehicle when he fell, and that entering a vehicle is an ordinary use of an automobile. Further, the chain of events was found not to have been interrupted. Therefore, Mr. Diep was entitled to accident benefits.
Mr. Diep then went on to sue the owners and winter maintenance contractors of the parking lot for negligence and breach of the Occupier’s Liability Act. A subrogated claim was also advanced by OHIP in the usual course.
The appellants took issue with this, arguing that because the plaintiff had already succeeded in establishing that the incident arose from the use or operation of an automobile, then the accident benefits awarded should be deducted from any tort damages per section 267.8 of the Insurance Act. It was also argued that OHIP’s subrogated claim was barred by section 30(5) of the Health Insurance Act. The appellants argued that the LAT determination should act as a dispositive decision on the issue of the incident’s categorization as an automobile accident.
The Court of Appeal disagreed.
Pertinent Issues on Appeal:
1. Did the motion judge err by disregarding binding decisions of the Court which held that:
a. The purpose of s. 267.8 of the Insurance Act is to codify the common law principle that a plaintiff should not recover twice for the same kind of loss arising from the same incident in any related tort litigation; and
b. That s.267.8 of the Insurance Act and s. 30(5) of the Health Insurance Act require factual determinations that are not concerned with the cause of the action pleaded.
2. Did the motion judge err by failing to consider all the purposes of s.267.8 of the Insurance Act and by allowing Mr. Diep to receive double recovery?
3. Did the motion judge err by embarking on her own analysis of a previously decided issue by failing to apply the principles underlying the doctrines of issue estoppel, collateral attach, and abuse of process; and by failing to conclude that Mr. Diep is estopped from taking an inconsistent legal and factual position in this litigation?
Holding:
Appeal Dismissed.
Reasoning:
Did the motion judge err by disregarding binding decisions of the Court?
The Court found that the motion judge did not err by disregarding binding decisions of the Court, as the decisions were distinguishable from the subject case. El-Kodr v. Lackie (“El-Kodr”)[1], makes clear that s. 267.8 of the Insurance Act codifies the common law principle that a plaintiff should not recover twice for the same kind of loss arising from the same incident or any related litigation.
However, El-Kodr was not a case involving a non-motor vehicle cause of the victim’s loss, and therefore does not address the propositions relied on by the motion judge, that at common law there was an exemption from the rule against double recovery, and that restrictions on the plaintiff’s right to advance his full claim should be narrowly construed.
Similarly, in Ontario (Ministry of Health and Long-Term Care) v. Georgiou (“Georgiou”)[2], it was undisputed that the claim arose directly or indirectly from the use or operation of a motor vehicle. As such, these cases were found to be inapplicable to the case of Diep.
Did the motion judge err by failing to consider all the purposes of s.267.8 of the Insurance Act and by allowing Mr. Diep to receive double recovery?
The Court found that the motion judge did not err in this regard. The motion judge concluded that the action against the appellant was not properly characterized as arising from the use or operation of an automobile, and so, the restrictions imposed by s.267.8 did not apply.
The motion judge instead found that the plaintiff’s claim was founded on allegations that the occupiers and winter maintenance contractors had failed to properly maintain the parking lot. In her view, the dominant cause of the action was the presence of snow and ice and the alleged failure to remove it, not the use or operation of the plaintiff’s vehicle. As a result, the restrictions imposed by s. 267.8 did not apply.
Did the motion judge err by embarking on her own analysis of a previously decided issue?
The Court found that the judge did not err by failing to hold that the doctrines of abuse of process, collateral attack, and issue estoppel applied. The appellants argued that allowing Mr. Diep to advance a legal and factual position before the lower court that was inconsistent with the position he took before the LAT adjudicator regarding the same incident was a blatant abuse of process.
Their position was that the issue of whether the respondent’s injuries were directly or indirectly caused by the use or operation of a vehicle had already been determined and that the next consideration should have been whether this was an exceptional situation where re-litigation would enhance, rather than impeach, the integrity of the justice system.
The Court rejected these arguments on the basis that the context of the motion before the judge in the lower court and the context at the LAT proceeding were “very different”.[3] Specifically, the Court outlined that in each proceeding, the presiding judicial officer was required to determine whether an agreed set of facts met a statutory threshold.
The question before the LAT adjudicator was whether Mr. Diep was entitled to SABs, and because of the consumer-protection purpose and remedial nature of the SABs legislation, the definition at issue had to be interpreted “broadly and generously” and “giving effect to the desire to compensate accident victims”.[4]
By contrast, the question before the motion judge was whether s. 267.8 deprived Mr. Diep of a common law exception to the rule against double recovery and whether OHIP’s s. 30(1) right of subrogation was precluded. The Court was ultimately satisfied that both governing bodies dealt with different issues, that the proceedings asked different questions, and that the proceedings involved different parties.
Issue estoppel was not raised in the court below, nor was it pressed in oral submissions on appeal. The Court ultimately found it was inapplicable to this matter, regardless.
Discussion:
Diep highlights the tension that can arise when the same set of facts is analyzed under different statutory schemes for different purposes. While the Court concluded that the plaintiff was entitled to represent the incident as arising directly or indirectly from the use or operation of an automobile in the LAT context while maintaining a tort action in the occupier’s liability context, the appellant’s position was not without considerable force.
From the appellant’s perspective, the respondent had successfully argued before the LAT that his injuries arose from the use or operation of an automobile. Having the benefit of that characterization, it is arguably inconsistent for a plaintiff to later characterize the same incident as an occupier’s liability matter to avoid the collateral benefit deduction provisions of s. 267.8 of the Insurance Act. The appellants contended that permitting such a result undermines the principles of finality and consistency that underlie the doctrines of issue estoppel, collateral attack, and abuse of process.
There is also a compelling policy argument that the decision may create asymmetry within the Ontario automobile insurance regime. The legislative purpose of s. 267.8 is to prevent double recovery, and to coordinate the interaction between accident benefits and tort damages. However, this decision will permit some claimants to obtain the advantages of an expansive interpretation of “accident” in the accident benefits context, while later avoiding the restrictions associated with automobile-related tort claims if the claim can be framed more narrowly in that context. Such a claimant may be able to have her cake and eat it too, so to speak.
While the Court’s response to this concern was that the LAT determination examined different issues than the issues before the motion judge, the appellant’s concern remained that the decision permits a single incident to be characterized in two different ways depending on the remedy sought. It can be argued that this approach risks uncertainty and may encourage future litigants to advance alternative characterizations of the same event across different forums.
That said, the Court did not determine whether a defendant may nevertheless rely upon common law principles against double recovery where s. 267.8 is found to be inapplicable. While the Court acknowledged that s. 267.8 codifies the common law rule against double recovery in the motor vehicle context, its analysis was directed to the scope of the statutory scheme rather than the availability of any independent common law remedy. As a result, the decision leaves open the possibility that a defendant could argue that a plaintiff should not be compensated twice for the same loss.
Whether such an argument would succeed is less clear. The Court’s emphasis on the characterization of the claim and the limited reach of the statutory provisions may make it difficult to invoke broad notions of double recovery absent a recognized legal basis for deduction. Accordingly, Diep may be understood as limiting the operation of s. 267.8 without conclusively resolving the role of common law anti-double-recovery principles in cases falling outside the automobile tort regime.
Despite these concerns, this decision demonstrates that a finding of entitlement to statutory accident benefits will not necessarily dictate the characterization of a related tort claim, even where both proceedings arise from the same factual circumstances. Whether this approach appropriately balances the remedial objectives of the accident benefits regime against the principles of consistency and finality will likely remain the subject of debate among insurers, defendants, and plaintiffs’ counsel alike.
[1] El-Kohdr v. Lackie, 2017 ONCA 716, 139 O.R. (3d) 659.
[2] Ontario (Ministry of Health and Long-Term Care) v. Georgiou, 2002 CanLii 45036 (ONCA), 61 O.R. (3d) 285 (C.A.).
[3] Diep v. Mac’s Convenience Stores Inc. 2026 ONCA 424, at para 38 (“Diep”).
[4] Diep, at para 66, citing Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (Div. Ct.), at para. 71, leave to appeal to Ont. C.A. refused, 2024 ONCA 933.