Lerners' Monthly Lists
April 2016
Top 5 Civil Appeals from the Court of Appeal
1. Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179 (Strathy C.J.O., LaForme and Huscroft JJ.A.), March 3, 2016 
2. Neuberger v. York, 2016 ONCA 191 (Gillese, van Rensburg and Miller JJ.A.), March 8, 2016
3. Spence v. BMO Trust Company, 2016 ONCA 196 (Cronk, Lauwers and van Rensburg JJ.A.), March 8, 2016
4. Clarke v. Faust, 2016 ONCA 223 (Feldman, Juriansz and Brown JJ.A.), March 22, 2016
5. Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (Hoy A.C.J.O., Lauwers and Hourigan, JJ.A.), March 24, 2016

1. Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179 (Strathy C.J.O., LaForme and Huscroft JJ.A.), March 3, 2016
When is a claim discovered for limitations purposes in the case of a continuing breach of contract? In this decision, arising from a dispute between a commercial landlord and tenant, the Court of Appeal considered this question.
Pickering Square Inc. entered into an agreement with Trillium College Inc. to lease commercial space in a shopping centre for a five-year term, beginning on June 1, 2006. Pursuant to their agreement, Trillium covenanted not only to pay monthly rent but also to operate a vocational college on the premises continually, to maintain the premises throughout the term of the lease and to restore the premises following its expiration.
After Trillium vacated the premises in December, 2007, Pickering sued for rent arrears and for Trillium’s failure to conduct its business on the premises continually. The suit was settled, with Trillium agreeing to resume occupation of the leased premises by October 1, 2008. While Trillium paid rent for the duration of the lease, it did not operate its business continuously and failed to restore the premises when the lease ended on May 31, 2011.
Following the expiry of the lease, Pickering brought an action against Trillium for damages arising from its failure to occupy the premises and conduct its business continuously from October 1, 2008 to May 31, 2011, as well as its breach of its covenant to restore the premises. Trillium responded with a motion for summary judgment, arguing that Pickering’s claim was brought outside the two-year limitation period under section 4 of the Limitations Act, 2002, S.O. 2002, chapter 24, Schedule B.
The motion judge held that Trillium’s breach of the covenant to occupy the premises and operate its business continuously was of a continuing nature, so that each day of the breach gave rise to a fresh cause of action. Accordingly, only a portion of Pickering’s claim against Trillium for breach of its covenant - that concerning the breach that occurred more than two years prior to commencement of the action - was barred by the Limitations Act. The motion judge also held that Pickering’s claim for damages for breach of the covenant to restore the premises was not time-barred.
Pickering appealed the judgment but did not pursue its appeal. The Court of Appeal therefore heard only Trillium’s cross-appeal of the partial summary judgment.
Trillium submitted that the motion judge erred by finding a continuing breach of the agreement giving rise to a new cause of action and a new limitation period each day that it failed to carry on business at the leased premises. It argued that its breach of the covenant to operate its business continuously was complete on October 1, 2008, the first day that it failed to resume occupation of the leased premises and operate its business, and that each subsequent day that it failed to operate its business was not a separate breach but rather an instance of additional damages. A continuing breach of contract requires a succession or repetition of separate acts, while this was a case of a single act with continuing consequences. Accordingly, in the appellant’s view, Pickering’s claim was statute-barred because it was not brought within two years of the October 1, 2008 breach.
Writing for the Court, Huscroft J.A. rejected this submission, noting that Trillium did not breach a covenant to perform a single obligation due at a specific time. Nor did it fail to fulfill an obligation which it agreed to perform periodically. Rather, it breached a continuing obligation under the contract, a covenant to operate its business continuously – “at all times” - for the duration of the lease.
Justice Huscroft noted that Trillium’s argument that breach of its covenant to operate its business continuously established a complete cause of action as of October 1, 2008, overlooked the consequences of its breach. In the face of Trillium’s breach of its covenants under the contract, Pickering could either cancel the lease or affirm it and require performance. It chose the latter and, as a result, the parties were required to perform their obligations under it as they became due.
Huscroft J.A. pointed out that Trillium could have resumed performance of its obligations under the lease at any time prior to the end of the term by carrying on its business at the leased premises. It did not do so. The motion judge therefore properly concluded that a fresh cause of action accrued every day that the breach continued and that Trillium failed to carry on its business in accordance with the covenant. The limitation period applied on a “rolling basis”, with a fresh cause of action accruing each day the breach continued with the limitation period for that day’s claim expiring two years from that date. Accordingly, Picking was entitled to claim damages for breach of the covenant for the period going back two years from the commencement of its action on February 16, 2012: the period that ran from February 16, 2010, until the lease expired on May 31, 2011.
Trillium also argued that Pickering’s restoration claim was related to its obligations during the lease rather than upon its expiry, and was therefore discoverable as of October 1, 2008, and barred by the two-year limitation period under section 4 of the Limitations Act. Huscroft J.A. rejected this submission, holding that the motion judge was entitled to find that the respondent was claiming only for the breach of the covenant to repair and restore the premises at the end of the lease. Accordingly, the limitation period for this claim began to run on May 31, 2011. Since the action was commenced within two years of this date, the claim was not statute-barred. 
2. Neuberger v. York, 2016 ONCA 191 (Gillese, van Rensburg and Miller JJ.A.), March 8, 2016
When Chaim Neuberger died in September, 2012, at the age of eighty-six, he left a real estate empire worth over $100 million. He also left behind two children and several grandchildren who would become embroiled in litigation over his estate.
Chaim’s long-standing intention was to leave his estate equally to his two daughters, Edie and Myra. The appellant, Edie, has five adult children, one of whom is the appellant, Adam Jesin-Neuberger. Myra has three adult children, referred to by the Court as the “York Parties”.
Chaim executed primary and secondary wills in 2004 and in 2010, with Edie and Myra named in both as co-estate trustees. Both sets of wills left Chaim’s estate to Edie and Myra and their children, but they differed in one important way, which allegedly resulted in Myra’s share exceeding Edie’s by approximately $13 million.
Edie took a number of steps in her capacity as co-estate trustee under the 2010 wills and ultimately commenced legal proceedings to challenge their validity on the basis that her father did not have testamentary capacity when he executed them. Adam, through separate legal representation, also sought to challenge the validity of the 2010 wills.
The York Parties moved to dismiss both Edie’s and Adam’s challenges to the wills on the basis that they were barred by the equitable doctrines of estoppel by representation and estoppel by convention.
The motion judge granted the motion to dismiss the will challenges. She found that Adam was a “straw man” who had no knowledge of the 2010 wills or the estate and came forward only to support his mother’s position in the litigation. She further found that Edie was estopped from challenging the validity of the 2010 wills. Both Edie and Adam appealed.
As a preliminary matter, the Court of Appeal considered whether there is an automatic right to seek proof in solemn form pre-probate. Writing for the Court, Gillese J.A. held that there is no such right. While Edie and Adam are “interested persons” under Rule 75.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, and accordingly have the right under Rules 75.01 and 75.06 to request formal proof of the testamentary instrument, they do not have, as of right, the ability to require that the testamentary instrument be proved in solemn form. Read together, Rules 75.01 and 75.06 give the court discretion whether to order that a testamentary instrument be proved, as well as discretion over the manner in which the instrument is proved. Moreover, in order to avoid needless depletion of the estate, an interested party must meet a minimal evidentiary threshold before a court should grant a request that a testamentary instrument be proved.
Accordingly, an applicant or moving party under Rule 75.06 must adduce some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded.
Edie asserted that the motion judge erred by conflating the legal tests developed in relation to Rules 75.04 and 75.05 - which apply to will challenges where probate has already issued - with that to be applied under Rule 75.01, where probate has never been granted. Gillese J.A. rejected this submission, agreeing with the respondents that the only issue before the motion judge was whether the doctrine of estoppel by representation and/or convention applied to preclude the will challenges from proceeding.
Justice Gillese agreed with Edie, however, that the motion judge erred in finding that they did, holding that the doctrines of estoppel by representation and estoppel by convention do not bar a challenge to the validity of a will. The motion judge erred in finding a jurisprudential basis for the application of the doctrine of estoppel to matters involving the validity of a will. Further, the use of estoppel in such matters is “antithetical” to the policy considerations governing probate.
Gillese J.A. noted that the court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. The court also has a duty to the testator who is no longer able to protect his own interests, to those with a legitimate interest in the estate and to the public at large. She concluded that the court’s ability to discharge these duties would be jeopardized if the doctrine of estoppel was available to prohibit a party from challenging the validity of a will.
Gillese J.A. agreed with Edie that the motion judge’s reliance on her “undue delay” in bringing her will challenge less than two years after her father’s death created a precedent that could adversely affect the administration of estates, forcing estate trustees with doubts about the validity of a will to bring premature and poorly informed challenges. Further, in light of Rule 75, which gives the court discretion to screen out baseless claims for formal proof of testamentary instruments and, for those with merit, to control the manner in which the instrument is proved, Gillese J.A. found no basis to import the doctrine of estoppel.
Turning to Adam’s will challenges, Justice Gillese agreed that the motion judge erred in barring him from seeking proof of the 2010 wills in solemn form because he is a “straw man” for his mother. There was no basis for this finding. Adam provided evidence that he made an independent decision to challenge the 2010 wills, which was supported by Edie’s evidence that she did not want her children to get involved in the dispute. Both Adam’s and Edie’s evidence held up on cross-examination. Gillese J.A. held that the motion judge further erred in her factual findings in relation to Adam’s claim, finding it unclear how, in light of the evidence, she could conclude that Adam had provided no explanation for initiating his will challenges.
The appeal was allowed, and the will challenges permitted to proceed on their merits. 
3. Spence v. BMO Trust Company, 2016 ONCA 196 (Cronk, Lauwers and van Rensburg JJ.A.), March 8, 2016
In this decision, the Court of Appeal considered its capacity to interfere with an unambiguous and unequivocal residual bequest in a will, where a child, disappointed by her exclusion from her father’s will, claimed that the bequest offended public policy.
Eric Spence died in Ontario on January, 2013, at 71. He was predeceased by his wife, Norma, and survived by two daughters from a previous relationship, Donna and the respondent, Verolin.
Verolin lived with her father for many years after her parents’ separation. She asserted that they enjoyed a positive relationship, however, their relationship changed dramatically for the worse when she advised him in September, 2002, that she was pregnant. Verolin claimed that Eric, who was black, was opposed to the fact that the father of her child was white, and cut off contact with her.
Verolin gave birth to her son, A.S, in April 2003. A.S. never met his grandfather.
Eric made a will in 2010 in which he expressly excluded Verolin from sharing in any part of his estate. Clause  5(h) of the will stated:
I specifically bequeath nothing to my daughter, [Verolin] as she has had no communication with me for several years and has shown no interest in me as her father.
When Eric died, the appellant, BMO Trust Company, was issued a Certificate of Appointment of Estate Trustee with a Will and began to administer the estate. Verolin and A.S. did not challenge the will or BMO Trust’s appointment as estate trustee in the probate proceeding, but applied to the Superior Court under Rule 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194 and sections 58 and 60 of the Succession Law Reform Act ("SLRA"), R.S.O. 1990, chapter S,26, for: (i) a declaration that the will was void, in whole or in part, because it was contrary to public policy; (ii) leave to proceed with a dependant’s relief application under the SLRA; and (iii) directions from the court.
In support of the application, Verolin filed her own affidavit and another sworn by her father’s caregiver, Imogene Parchment. Both affiants, neither of whom was cross-examined, alleged that Eric’s decision to exclude Verolin and A.S. from his will was racially-motivated. Imogene supported Verolin’s claim that her father disinherited her on racial grounds, swearing that it was “very clear” that the reason Eric excluded Verolin from his will was “because he wanted to discriminate against Verolin because the father of her son was a white man”.
Based on the affidavit evidence, and contrary to the plain language of clause 5(h) of her father’s will, Verolin argued that her disinheritance was motivated by racial discrimination on Eric’s part, and that the will was therefore void by reason of public policy and ought to be set aside. The application judge agreed.
The Court of Appeal allowed BMO Trust’s appeal from this decision, holding that the extrinsic evidence was inadmissible and that the application judge erred by improperly interfering with Eric’s testamentary freedom.
Writing for the Court, Cronk J.A. emphasized that, as a general rule, extrinsic evidence of a testator’s intentions is not admissible when the testator’s will is clear and unambiguous on its face. In Rondel v. Robinson Estate, 2011 ONCA 493, leave to appeal to Supreme Court of Canada refused, [2011] S.C.C.A. No. 536, the Court recognized exceptions to this rule where a will is ambiguous or equivocal. Eric’s will, however, was neither.
While public policy in Canada precludes discrimination on the basis of race, as reflected in the Charter and provincial human rights legislation, including Ontario’s Human Rights Code, Cronk J.A. cautioned against concluding that third-party extrinsic evidence of a testator’s alleged discriminatory motive is admissible to challenge the validity of a will where the testator’s residual bequest to a private beneficiary is absolute, unambiguous and unequivocal.
Justice Cronk reasoned that if Rondel held that extrinsic evidence was not admissible to establish what a testator intended, such evidence was less admissible still to determine why a testator made a particular bequest. The extrinsic evidence did not serve to establish Eric’s motive for the residual bequest in his will. That was clearly disclosed at clause 5(h). The purpose of the extrinsic evidence was, rather, to contradict the lawful motive for the bequest, as set out by the plain language of the will, and to substitute a different and allegedly unlawful motive. In Cronk J.A.’s view, there was no basis in law for the admission of wholly contradictory, extrinsic evidence of motive for this purpose, and the courts “should be loath to sanction such an indirect attack, which the deceased cannot challenge, on a testator’s expressed motive and testamentary choices.”
Cronk J.A. emphasized the deeply entrenched common law principle that a testator is free to distribute his property as he chooses, which was recognized by the Supreme Court in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. She noted, however, that notwithstanding the “robust nature” of the principle of testamentary freedom, the courts have recognized that it is not an absolute right. In addition to limits imposed by legislation, the right to testamentary freedom may also be constrained by public policy considerations. Canada Trust Co. v. Ontario (Human Rights Commission) (1990), 74 O.R. (2d) 481, confirmed that the courts will not hesitate to intervene where the implementation of a testator’s wishes collides with public policy. Eric’s will, however, contained no language suggesting racial discrimination.
Justice Cronk concluded that applying the public policy doctrine to void an unconditional and unequivocal testamentary bequest in cases where a disappointed potential heir has been disinherited would effect “a material and unwarranted expansion” of this doctrine in estates law. “Absent valid legislative provision to the contrary, or legally offensive conditional terms in the will itself, the desire to guard against a testator’s unsavoury or distasteful testamentary dispositions cannot be allowed to overtake testamentary freedom.”
Cronk J.A. held that there was no basis for the public policy-driven review undertaken by the application judge and that she erred in superseding Eric’s expression of his clear intentions regarding the disposition of his property. The application judge’s decision implicitly endorsed a general supervisory role for the courts in “policing a testator’s unqualified and legitimate choice of his heirs” on the ground of enforcing the public policy against discrimination, a proposition which, if accepted, would significantly undermine the principle of testamentary freedom.
4. Clarke v. Faust, 2016 ONCA 223 (Feldman, Juriansz and Brown JJ.A.), March 22, 2016
The appellants, Andrew and Gavin Clarke, were injured in a motor vehicle collision on April 7, 2006. They retained the respondent, Joseph Faust, to represent them on their claims for accident benefits and tort damages. Faust issued a statement of claim in June, 2008, several weeks after the second anniversary of the accident. Before the claim was filed, the appellants retained new counsel who, upon receiving the file from the respondent, noted that the statement of claim had not been issued within the two-year limitation period. He advised his clients, however, that this was not necessarily fatal to their claim due to the doctrine of discoverability.
In correspondence dated July 2, 2008, the appellant’s new lawyer put the respondent on notice of the missed limitation period, advising him to consult his liability insurer. Faust wrote back shortly afterward, asserting that the limitation period had not been missed because of the doctrine of discoverability.
The appellants’ counsel died suddenly, and another lawyer from his firm took over their file. He too was unconcerned about the missed limitation period, believing that the doctrine of discoverability would extend the period for the motor vehicle claim as both plaintiffs had suffered soft tissue injuries and, until they had obtained medical documentation, they could not have known whether their injuries met the threshold of serious and permanent impairment. The appellants’ new lawyer thought that he had convinced defence counsel that the doctrine of discoverability would extend the limitation period, and so informed his clients. He also relayed to them that the statement of defence filed in February, 2009, did not plead the missed limitation period as a defence.
The defendants amended their statement of defence shortly thereafter, however, pleading the plaintiffs’ missed limitation period.
The appellants commenced a professional negligence action against the respondent in December, 2010. Faust moved for summary judgment dismissing the claim, arguing, ironically, that the action was statute-barred because it was commenced more than two years after the appellants knew or ought to have known that they had a cause of action against him.
The motion judge found that there was no genuine issue requiring a trial with respect to whether the action was statute-barred. She concluded that it was, and dismissed the appellants’ action against the respondent.
The respondent took the position on the motion that the appellants should be presumed to have known of his negligence on April 7, 2008, the two-year anniversary of the accident or, in the alternative, on July 2, 2008, when their new lawyer wrote to advise him that he had missed the limitation period to issue the appellants’ motor vehicle claim. The appellants meanwhile asserted that they suffered no damage until March 18, 2009, when the defendants in the motor vehicle claim first pleaded the defence of the missed limitation period.
The motion judge rejected the appellants’ position, holding that under the Limitations Act, 2002, S.O. 2002, chapter 24, Schedule B, a limitation period could begin to run before the person with the claim sustained any damages. Noting that the phrase “injury, loss or damage” in section 5(1) of the statute is disjunctive, she concluded that the appellants were “injured” by the respondent’s failure to commence the motor vehicle action within the two year limitation period, even though they may not have suffered any “damage” from that injury until the defendants in that action pleaded the limitation defence.
Writing for the Court of Appeal, Juriansz J.A. found that the motion judge erred in her interpretation of the statute, failing to consider the requirement of section 5(1)(a)(iv) that a claimant know that a proceeding would be an appropriate means to seek to remedy the injury, loss or damage having regard to its nature. That provision requires a person to believe that he has a legal claim for damages before knowing that commencing a proceeding would be an appropriate means to remedy the injury, loss or damage.
Justice Juriansz noted that the appellants had been advised by three different lawyers that the doctrine of discoverability applied to their motor vehicle action. They had good reason to believe that this was the case because the original statement of defence did not plead the limitation defence. It was not until they received the defendants’ amended statement of defence on March 18, 2009, that they discovered that they had a claim against the respondent. They had no reason to know that commencing a professional negligence proceeding against the respondent was appropriate before that date. Juriansz J.A. further found that a reasonable person with the abilities and in the circumstances of the appellants would not have known that it was appropriate to commence a legal proceeding before the March 18, 2009 amendment of the statement of defence in the motor vehicle action.
Accordingly, the statement of claim in the professional negligence action, dated December 22, 2010, was filed well before the expiry of the two-year limitation period.
Juriansz J.A. noted in obiter that it remained to be determined whether the appellants’ motor vehicle claim was statute-barred, pointing out that if the doctrine of discoverability permitted that claim to proceed, the professional negligence action may be premature. He also suggested that the appellants might have been able to establish that the respondent was estopped from pleading a limitations defence in the professional negligence action because they relied on his initial position that he had not missed the limitation period in the motor vehicle action. The appellants did not raise this issue, however.
Juriansz J.A. briefly considered and rejected the motion judge’s finding that the appellants had not pleaded discoverability in their professional negligence claim, holding that their statement of claim set out the material facts to support the application of the doctrine.  
5. Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (Hoy A.C.J.O., Lauwers and Hourigan, JJ.A.), March 24, 2016
The respondent was seriously hurt when he tripped over a motorcycle which was parked on a pedestrian walkway. In this decision, the Court of Appeal considered whether he was injured in an “accident” as defined in the Statutory Accident Benefits Schedule ("SABS").
In August, 2012, Patrick Caughy and his wife and two daughters camped at a country music festival in Bothwell, Ontario. He and other campers parked their vehicles on a campsite, leaving a gap for campers to use as a walkway. Additional campers arrived later on two motorcycles which they parked on site. Initially, the motorcycles did not block the walkway; however, after dark, and without the respondent’s knowledge, they were moved and parked there. Later that night, the respondent was playing tag with his daughter when he tripped over one of the parked motorcycles, collided with his own truck, and fell to the ground. He sustained serious spinal cord injuries as a result. Although he was intoxicated at the time of the accident, Caughy claimed to recall the incident that led to his injuries.
The respondent sought accident benefits from his insurer, Economical Mutual Insurance Company, which were denied on the basis that the incident did not meet the definition of “accident” in section 3(1) of the Statutory Accident Benefits Schedule—Effective September 1, 2010, O. Reg. 34/10.
The application judge found that the temporary parking of the motorcycle on the walkway constituted an ordinary or well-known use of the vehicle and that it was the dominant feature of the incident, not merely ancillary to it. He concluded that the incident satisfied the test for an accident under the SABS as set out by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405. The Court of Appeal agreed, and dismissed the insurer’s appeal.
The term “accident” is defined in section 3(1) of the SABS as “an incident in which the use or operation of an automobile directly causes an impairment […].” In Amos, the Supreme Court outlined a two-part - purpose and causation - test for interpreting this provision:
1. Did the accident result from the ordinary and well-known activities to which automobiles are put?
2. Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the injuries and the ownership, use or operation of the vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?
The Court of Appeal modified the causation portion of this test in Greenhalgh v. ING Halifax Insurance Company (2004), 72 O.R. (3d) 338 (C.A.), leave to appeal refused (2004), 338 N.R. 398 (note), and in Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19, leave to appeal refused (2013), 466 N.R. 386 (note). Pursuant to this modified test, the use or operation of the vehicle must be a “direct cause” of the injuries. The insured must first establish that the use or operation of an automobile was the cause of the injuries and, if that is established, he must then satisfy the court that there was no intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things”.
The Supreme Court revisited its Amos test in Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, refining the scope of the purpose half of the test such that the “ordinary and well-known activities to which automobiles are put” limits coverage to “motor vehicles being used as motor vehicles” and excludes “aberrant” uses.
The insurer did not challenge the application judge’s finding that the causation test was satisfied, but argued that he erred in concluding that the purpose test was met on the facts of this case.
Writing for the Court of Appeal, Hourigan J.A. rejected this submission, concluding that parking a vehicle does not constitute the type of aberrant use contemplated by the Supreme Court in Citadel. The examples cited in that case - the use of a car as a diving platform, for storing dynamite, or as a prop to shore up a drive shed - were limited to circumstances in which a vehicle was not being used as a vehicle, but for some other purpose. Parking a vehicle is not aberrant to its use as a vehicle: a vehicle is designed to be parked and most vehicles are parked the majority of the time. Parking a vehicle is therefore an ordinary and well-known activity to which vehicles are put, in accordance with the purpose test.
The appellant claimed that the application judge made a series of errors in his analysis of the purpose test. Hourigan J.A. considered and rejected each of these submissions.
The insurer asserted that the application judge erred in failing to conclude that there must be an active use of the vehicle to meet the purpose test. It argued that because the motorcycle was not in use, it was nothing more than the venue for the incident. Justice Hourigan dismissed this claim, emphasizing that there is no active use component to the purpose test: the sole question for determination under the test is whether the incident resulted from “the ordinary and well-known activities to which automobiles are put”. While the active use of the motorcycle would qualify under the test, there is no requirement that it be in active use.
Hourigan J.A. also rejected the appellant’s assertion that the application judge erred in finding that the motorcycle was parked temporarily on the walkway when the appellant tripped over it. There was no evidence before the application judge that the motorcycle was inoperable or that it was being stored at the campsite for an extended period of time.
Justice Hourigan accepted the appellant’s submission that the application judge erred when he concluded that the respondent had satisfied the purpose test because the use or operation of the motorcycle was “involved in this incident”, noting that the purpose test is not concerned with whether a vehicle is involved in an incident. He held, however, that when considering the application judge’s statement in context, it was clear that he understood the elements of the purpose test and that this misstatement did not affect his analysis.

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