The Ontario Court of Appeal has upheld a lower court decision, which found that injuries suffered in a drive-by shooting do not generate a liability for the victim’s auto insurer.

The question of this appeal was whether the motorist, who was severely injured in a drive-by shooting, was entitled to rehabilitation and other statutory accident benefits from his own insurer. The answer turned on whether the use or operation of an automobile directly caused his injuries.

Justice Sandra Chapnik of the Ontario Superior Court of Justice concluded that the plaintiff, Michael Chisholm, was not entitled to accident benefits from his insurer, Liberty Mutual Group. She held that the direct cause of his injuries were the gun shots, not the use or operation of an automobile. Today, the appeals court upheld that decision.

Chisholm was driving his wife’s car in Hamilton when an unknown assailant fired gun shots at it, rendering him a paraplegic. He sought a range of statutory accident benefits.

Liberty Mutual has refused to pay these benefits on the sole ground that though Chisholm suffered an impairment, he was not in an accident, because the use or operation of a motor vehicle did not directly cause his impairment. After the Financial Service Commission of Ontario failed to resolve the dispute by mediation, Chisholm brought his action for the payment of benefits.

The court ruled that a causal relationship between Chisholm’s injuries and the operation of his car was not evident. It also rejected his contention that the car was a direct cause of his injuries.