COURT FILE NO.: 614/02

DATE: 20040603

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MACFARLAND, HOWDEN AND LINHARES DE SOUSA JJ.

B E T W E E N:

BALJIT KUMAR

Applicant

• and -

COACHMAN INSURANCE COMPANY and FINANCIAL SERVICES COMMISSION OF ONTARIO

Respondents

Ravinder Sawhney, for the Applicant

Eric K. Grossman, for the Respondent, Coachman Insurance Company

Stephen Scharbach, for the Respondent, Financial Services Commission of Ontario

HEARD: June 3, 2004

MACFARLAND J.: (Orally)

1Mr. Kumar seeks judicial review of the decision of the Arbitrator and that of the Director’s Delegate, both of which concluded he had not been injured in an “accident” as defined in the Statutory Accident Benefit Schedule 1996.

2The law appears to be well settled that the standard of review in relation to both decisions is that of patent unreasonableness. As Flinn J. noted in Federation Insurance v. Vineski and Ontario Insurance Commission (Unreported, Ontario Court (General Division) Div. Ct., October 23, 1997; leave to appeal refused), a case which although factually distinguishable concerned issues similar to those raised here:

“The standard of review in these circumstances has been held to be that of patent unreasonableness. The Arbitrator and the Director’s Delegate are full-time persons with the Commission. Under s.20 of the Insurance Act, they are given exclusive jurisdiction to exercise the powers conferred upon them and to determine all questions as fact and law and their decision is final unless otherwise provided.”

The questions here raised are clearly within the jurisdiction of the Tribunal. The interpretation of whether the applicant can satisfy whether his injuries were caused by “accident” as defined.

3In the case of Turner and State Farm Mutual Automobile Insurance Company and The Financial Services Commission of Ontario, which the applicant cites, the Court was concerned with a different issue than as is here raised. In Turner, the question raised concerned the applicability of the limitation period and when it begins to run, which is a question of law.

4The Arbitrator concluded that Mr. Kumar had not been injured in an “accident” as defined in s.2(1) of the 1996 Schedule. As she noted, the only significant factual dispute was whether any of Mr. Kumar’s injuries were caused by his head hitting any part of the taxicab. In this respect, there was a conflict in the evidence which the Arbitrator resolved in favour of the insurer. She disbelieved Mr. Kumar’s evidence that he had hit his head on the steering wheel. This was a factual finding she was entitled to make on the record before her. Further, she did not believe his evidence that he had lost consciousness. Again, a factual finding open to her on the evidence before her.

5Mr. Kumar, contrary to his evidence at the hearing, had told his insurer shortly after the accident that he had not hurt himself through any impact of the automobile, even when it rolled into the ditch. Further, in support of that version was the absence of any reference in the police report to any injury sustained through impact with the vehicle. The hospital emergency record prepared on the day of the incident when Mr. Kumar attended, specifically noted “no loss of consciousness” on Mr. Kumar’s part.

6The Arbitrator concluded that the injuries arose solely as a result of being struck on the head with a rock by an assailant while in the cab and that his injuries were in no way occasioned by striking anything in the automobile. The Arbitrator’s factual findings on this record are unassailable. She therefore concluded that his injuries were not directly caused by the use and operation of a motor vehicle.

7The Arbitrator then went on and considered the arbitral jurisprudence in the area and in particular noted the change in the legislation in 1996 when the definition of “accident” was amended in a significant way. She concluded correctly in our view:

“To meet the definition of “accident” in subsection 2(1) of the 1996 Schedule, I must find, first, that the incident resulted from the ordinary use or operation of an automobile (the purpose test) and second, that it directly caused the impairment (the causation test).

8She concluded on the evidence before her that Mr. Kumar met the purpose test but not the causation test. As we have indicated, she considered the evidence before her, weighed it and made the conclusion she did based upon that evidence. She then considered the test and found Mr. Kumar could not meet it. Her decision is not only entirely reasonable, it is, in our view, correct.

9Mr. Kumar appealed the Arbitrator’s decision as was his right to the Director of Arbitrations and the Director’s Delegate, Nancy Makepeace concluded in reasons released August 9, 2002:

“…that the Arbitrator did not err in concluding that Mr. Kumar was not injured in an “accident” as defined in the SABS-1996”.

10Ms. Makepeace, in lengthy reasons carefully considered the arbitral jurisprudence as well as the judicial authority, both before and after the 1996 amendments to the no fault legislation. Ultimately she agreed with the reasons of Chapnik J. in Chisholm v. Liberty Mutual Group, which she quotes at p.32 of her reasons, p. 146 of the record:

“Even given the factual circumstances as taken that the plaintiff’s motor vehicle was stopped and the bullets were shot at the automobile itself, in my view, the shooting constituted an intervening act, independent of the vehicle’s use of operation which clearly broke the chain of causation. Moreover, it appears to me that a criminal assault which does not take place within the context of the vehicle’s ordinary and well-known use is not a risk that is sought to be protected by a motor vehicle liability policy. The overall objective of the legislation is to compensate insured people injured in motor vehicle accidents. This result is not an absurdity as alleged by counsel for the plaintiff. It reflects the intention of the legislature evidenced by the legislative amendments.”

11Interestingly the Court of Appeal, in reasons released only days after the decision of the Director’s Delegate, upheld the decision of Chapnik J. We are all of the view that the decision of the Director’s Delegate is not patently unreasonable and indeed reflects a correct interpretation of the law. The applications for judicial review are dismissed.

12The endorsement will read: “For reasons given the applications for judicial review are dismissed. The FSCO does not seek costs and none are awarded. Costs to the respondent Coachman fixed in the sum of $1,500.00, inclusive of GST and disbursements.”

MACFARLAND J.

HOWDEN J.

LINHARES DE SOUSA J.

Date of Reasons for Judgment: June 3, 2004

Date of Release: June 9, 2004

COURT FILE NO.: 614/02

DATE: 20040603

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT