CITATION: Francia v. Licence Appeal Tribunal, 2021 ONSC 7847
DIVISIONAL COURT FILE NO.: 2618/20 DATE: 20211201
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Tzimas, Kristjanson and Favreau JJ.
BETWEEN:
PATRICK FRANCIA
Mohamed Elbassiouni, counsel for Patrick Francia
Appellant
– and –
LICENCE APPEAL TRIBUNAL AND ECONOMICAL MUTUAL INSURANCE COMPANY
Valerie Crystal, counsel for the Respondent Licence Appeal Tribunal
Catherine A. Korte and Mahroze A. Khan, counsel for the Respondent Economical Mutual Insurance Company
Respondents
HEARD at Toronto by videoconference: June 24, 2021
Kristjanson, J.
[1] A fatal collision between a transport truck and a tractor-trailer resulted in an explosion and fire, causing a chemical spill. Mr. Francia was impaired due to his work cleaning up the spill. Mr. Francia applied to Economical Mutual Insurance Company (“Economical Insurance”), for accident benefits under the Statutory Accident Benefits Schedule, O. Reg 34/10 (“SABS”), a regulation made under the Insurance Act, R.S.O. 1990, c. I.8. Economical Insurance denied benefits because the incident was not an “accident” as defined in section 3(1) of the SABS, which is an incident in which the use or operation of an automobile directly causes impairment.
[2] In a decision by Vice-Chair Chloe Lester, the License Appeal Tribunal (“LAT”) agreed with the insurer that Mr. Francia’s injuries were not sustained in an “accident” as defined in the SABS: 2019 119747 (ON LAT). On reconsideration, the same adjudicator upheld her original decision: 2020 19569 (ON LAT). I would dismiss the appeal from the LAT decisions.
Factual Background
[3] This appeal stems from a serious collision between a transport truck and a tractor-trailer in 2017. The transport truck, carrying flammable liquid, was parked on the side of the highway. The tractor-trailer hit the transport truck from behind, causing an explosion and fire (“collision”). The driver of the tractor-trailer was pronounced dead on the scene. Flammable liquids and chalk-like substances flowed onto the highway and into catch basins on the side of the highway (“spill”).
[4] Mr. Francia worked for a tow truck and environmental clean up company as part of the clean-up crew responding to the collision and spill. Mr. Francia applied a powder to the highway and used a vac-truck to remove the flammable liquid from catch basins. A vac-truck contains two basins and two hoses and is used to vacuum liquid out of catch basins and rinse them with water. Mr. Francia travelled about 10 feet down into the catch basins to operate the vac-truck. He cleaned out all eight catch basins in the area of the spill. His employer did not provide personal protective equipment.
[5] Mr. Francia was also responsible for strapping down the deceased driver of the tractor-trailer to the driver’s seat so the body wouldn’t move when the tow truck removed the truck from the collision scene. The body was badly burned from the explosion. Mr. Francia found this very distressing.
[6] Over the course of the cleanup work, Mr. Francia began to feel dizzy, lightheaded, nauseous, and felt tightness in his chest. When he returned to the office at the end of the day, he was slurring his speech and felt numb and tingly. When he arrived at home, he fainted and went to the hospital. He suffered a pneumothorax (collapsed lung). A year later, he suffered another collapsed lung and partial lung removal. He also claims depression, anxiety, and post-traumatic stress disorder.
[7] Mr. Francia applied to Economical Insurance for accident benefits under the Statutory Accident Benefits Schedule, O.Reg 34/10 (“SABS”). Economical Insurance denied benefits because the incident was not an “accident” as defined in s. 3(1) of the SABS:
“accident” means an incident in which the use or operation of an automobile directly causes an impairment….
LAT Decision and Reconsideration Decision
[8] The LAT rendered its initial Decision on October 29, 2019. In determining the preliminary issue of whether the incident is an “accident” as defined by the SABS, the LAT separately considered two scenarios:
Scenario 1: Does the fatal tractor-trailer collision qualify as an accident?
Scenario 2: Does the use and operation of the vac-truck qualify as an accident?
[9] The LAT applied the two-part test for determining whether an incident is an “accident” under the SABS. The LAT summarized the purpose and causation tests as follows, citing Amos v. Insurance Corporation of British Columbia, 1995 2 S.C.R. 405, Chisholm v. Liberty Mutual Group (2002), 2002 45020 (ON CA), 60 O.R. (3d) 776 (CA), and Greenhalgh v. ING Halifax Insurance Co., 2004 21045 (ON CA), 72 O.R. (3d) 338:
Purpose test: Did the accident result from the ordinary and well-known activities to which automobiles are put?
Causation test: Was the use or operation of the vehicle a cause of the injuries? If the use or operation of the vehicle was the cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries?
[10] The LAT found that Scenario 1 met neither the purpose nor the causation test. The LAT found that Scenario 2—based on Mr. Francia’s use and operation of the vac truck—met the purpose test because Mr. Francia was using the vac-truck for its ordinary and well-known activities. The second scenario did not, however, meet the causation test because the use and operation of the vac-truck did not cause the injuries: the toxic substances involved in the clean-up caused the injuries. The LAT dismissed the application.
[11] Mr. Francia requested a reconsideration of the decision. The same adjudicator dismissed the reconsideration request.
Jurisdiction and Standard of Review
[12] This is a statutory appeal under s. 11(1) of the License Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. An appeal from a decision of the LAT relating to a matter under the Insurance Act may be made on a question of law only. As a statutory appeal on a question of law, the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37.
Issues and Analysis
[13] Mr. Francia raises issues regarding both the purpose and causation tests as set out and applied by the LAT as discussed below.
Issue #1: Did the LAT err in its interpretation of the purpose test?
[14] The appellant argues that the LAT erred in law by requiring Mr. Francia to show that the purpose test was met twice in Scenario 1. The purpose test, used to determine whether an incident constitutes an “accident” for the purposes of the SABS, is whether the incident resulted "from the ordinary and well-known activities to which automobiles are put". This is the test articulated by the LAT. The purpose test was described by Binnie J. in Vytlingam (Litigation Guardian of) v Farmer, 2007 SCC 46 at para 19 as follows:
….The "ordinary and well-known activities to which automobiles are put" limits coverage to motor vehicles being used as motor vehicles, and would exclude use of a car as a diving platform (as above) or retiring a disabled truck to a barn to store dynamite (which explodes), or negligently using the truck as a permanent prop to shore up a drive shed (which collapses, injuring someone). In none of these cases could it be said that the tortfeasor was at fault as a motorist. In none of these cases could it be said that the motor vehicle was being used as a motor vehicle. That is the sort of aberrant situation that the Amos purpose test excludes, and nothing more…
[15] The Court of Appeal adopted this passage as affirming both the statement of the purpose test and its application to SABS cases in Economical Mutual Insurance Co. v. Caughy, 2016 ONCA 226 at paras. 16-17.
[16] Mr. Francia submits that in analyzing Scenario 1 the LAT incorrectly considered the purpose test twice when analyzing Scenario 1: once when determining whether the tractor-trailer and truck met the purpose test at the time of the collision, and then a second time when Mr. Francia arrived on the scene.
[17] With Scenario 1, the LAT found that the drivers of the two trucks involved in the collision would be covered by the “accident” definition, but that Mr. Francia was not. This is because the vehicles were non-operational, on fire, and ready to be towed when Mr. Francia arrived. These are not the ordinary uses to which vehicles are put, so this scenario does not meet the purpose test as it applies to Mr. Francia The appellant argues that once the LAT concluded the vehicles met the purpose test at the time of the collision, it was an error of law, to consider whether the purpose test was also met at the later time when Mr. Francia arrived.
[18] I do not agree that the LAT erred in law. The LAT correctly set out the purpose test. The LAT then applied the correct legal test to the facts relating to the entire incident, from the use or operation of the vehicles to the time when Mr. Francia was impaired. The LAT held that when determining whether an incident is an “accident”, the whole incident – from use or operation of a vehicle to the impairment – must be contemplated. It was open to the LAT to consider the temporal component. The incident, as it involved Mr. Francia (as opposed to the drivers) did not result from the ordinary and well-known activities to which automobiles are put. There is no legal error in the statement of the test.
Issue #2: Causation Test
[19] Mr. Francia raises three issues regarding the LAT’s approach to causation as discussed below.
(a) Did the LAT err by applying the wrong case law in the causation test under Scenario 1?
[20] Mr. Francia acknowledges that LAT correctly articulated the causation test from Amos, Greenhalgh and Chisholm. But Mr. Francia argues that in analyzing Scenario 1 the LAT erred in law by applying the wrong legal test, from Citadel General Assurance v. Vyntlingayam, 2007 SCC 46, and so erroneously applied the higher causation test from the indemnification insurance context to the no-fault context. I do not agree.
[21] The LAT held that the causation test was not met in Scenario 1 because the truck and tractor-trailer were not operational, so not functioning as motor vehicles, when they released the toxic substances that harmed Mr. Francia Thus, the “use or operation” of the motor vehicles did not cause the injuries. The LAT relied on Citadel for the “common sense” proposition that when, for example, an incident occurs during a motor vehicle repair (cutting torch causing vehicle fumes to ignite), an automobile is not in use or operation. The LAT then applied “similar reasoning” to hold that when the two vehicles collided, they were no longer functioning as motor vehicles, so “the toxic spill and resulting impairment could not stem from a direct result of the use and operation of a vehicle.” The adjudicator asked whether SABS coverage extends to “impairments that arise out of the aftermath of an accident that has already occurred,” holding in the original decision at para. 26:
The answer is no. As in Vytlingam, when a vehicle ceases being used as automobiles, we cannot expect the insurance companies to provide coverage. I agree with the respondent that if I was to accept the applicant’s position, then that could potentially open claims for anybody who was impaired by being on the accident scene, including first responders, or anyone who was injured while passing by the accident to claim for accident benefits. This would not be the intention of Schedule that over the years has narrowed the definition of an accident.
[22] In the reconsideration decision, the LAT held at para. 25: “I did not find that the use or operation of a vehicle led to the substances leaking onto the ground. It was that the collision, which caused toxic spill, led to the impairments. Since the vehicles were non-operable, the impairments could not stem from a direct result of the use or operation of the vehicle.” In so doing, the LAT both articulated and applied the modified causation test which incorporates use and operation, direct cause, and intervening act components.
[23] This approach is consistent with the explanation of the modified causation test set out by the Court of Appeal in Downer v. Personal Insurance Co., 2012 ONCA 302 at para. 39:
Under the modified causation test from Chisholm and Greenhalgh, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.
[24] The LAT did not err in law, or apply an overly narrow modified causation test, in analyzing Scenario 1.
(b) Did the LAT err in determining that the collision was not a “part of the ordinary course of things” for the purposes of the causation analysis?
[25] The appellant submits that the LAT erred in its application of the modified causation test in Scenario 1, since a collision is a normal incident of the risk created by the use or operation of motor vehicles. The appellant accepts that Chisholm and Greenhalgh establish that the impairment must be “directly caused” by the collision, where “direct cause” means consequences which are a normal incident of the risk created by the use and operation of the car, if it is part of the ordinary course of things. However, the appellant takes issue with the LAT’s failure to find that the chemical spill is a consequence that followed in sequence from the transportation of the chemicals, to the collision, and ultimately to the appellant’s impairment, without any intervening acts.
[26] The appellant acknowledges that the LAT applied the correct legal test. He disputes the application of the test to the facts of the case. The LAT’s conclusion that the fire and environmental spill were intervening acts, not part of the “ordinary course of things” was a conclusion of mixed fact and law, which is outside the scope of the statutory appeal.
(c) Did the LAT err in its application of the “legal causation test” in Chisholm under the second scenario?
[27] The Appellant submits that, although the LAT correctly articulated the Chisholm modified causation test in Scenario 2 (the use and operation of the vac-truck), it erred in applying the test to the facts. Chisholm accepted, and Greenhalgh confirmed, that there may be more than one direct cause of an impairment. All the appellant had to show was that his use of the vac-truck was a direct cause, not that it was the only direct cause. Requiring otherwise was an error. The appellant was involved in an accident since his use of the vac-truck was a direct cause of his impairment, even if those impairments were also caused by exposure to the toxic substances.
[28] The application of the correct legal test to the facts is not a question of law, and thus outside the scope of the statutory appeal. Here, the arbitrator found on the facts that the use and operation of the vac truck was not a direct cause of the impairment. At paras. 28 -30, the LAT reconsideration decision identifies several facts found by the adjudicator relevant to the decision:
• The evidence showed that the applicant was exposed to three different types of substances: absorbal, which was provided by his employer and used in clean-up, and the two substances related to the collision, the chalk-like substance and the flammable liquid.
• There was no medical evidence presented at the hearing that the flammable liquid was the only cause of the applicant’s physical impairments and that the impairments were caused only because of operating the vac-truck.
• The evidence shows that the applicant placed absorbal around the catch basins while he and the clean-up crew waited for about two hours before using the vac-track, and he was also operating the street sweeper. Based on the evidence from the hearing, the LAT stated that it could not conclude that had the applicant not operated the vac-truck, he would not have been impaired.
• The Tribunal’s decision found that the vac-truck cannot be a direct cause of the impairments because another colleague who did not operate the vac-truck also experienced similar symptoms.
• The vac-truck was used to solely clean up the flammable liquid, yet the applicant was exposed to two other substances, and the flammable liquid, even when he was not operating the vac-truck, and the LAT could not conclude that the impairments stemmed from the sole use of the vac-truck.
[29] The appellant’s impairments were sustained as a result of his employment duties in the clean-up, but on the facts, the arbitrator found that the use and operation of the vac truck was not a direct cause of the impairment. There is no basis for this court to interfere with those findings of fact.
Conclusion
[30] Accordingly, I would dismiss the appeal. The appellant is to pay costs of the appeal to the respondent, in the agreed amount of $5,000, inclusive.
“Kristjanson J.”
I agree “Tzimas J.”
I agree “Favreau J.”
Date of Release: December 1, 2021
CITATION: Francia v. Licence Appeal Tribunal, 2021 ONSC 7847
DIVISIONAL COURT FILE NO.: 2618/20 DATE: 20211201
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Tzimas, Kristjanson and Favreau JJ.
BETWEEN:
PATRICK FRANCIA
Appellant
– and –
LICENCE APPEAL TRIBUNAL AND ECONOMICAL MUTUAL INSURANCE COMPANY
Respondents
REASONS FOR JUDGMENT
Date of Release: December 1, 2021