Neutral Citation: 1995 ONICDRG 124

File No. A-012588

ONTARIO INSURANCE COMMISSION

BETWEEN:

JONATHAN R. VINESKI

Applicant

and

FEDERATION INSURANCE COMPANY OF CANADA

Insurer

DECISION ON PRELIMINARY ISSUE

Background:

The Applicant, Jonathan R. Vineski, was injured in an incident on June 5, 1993. He was riding a bicycle on a municipal roadway, when his attention was diverted by the sound of a car starting. He rode into a pothole and fell to the roadway, injuring himself.

The Applicant claimed various benefits; however, the parties agree that the preliminary issue is whether Mr. Vineski was injured in an accident, as defined in section 2 of the Statutory Accident Benefits Schedule - Accidents before January 1, 1994.¹ The parties were unable to resolve this dispute through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

1. Was Jonathan Vineski injured as a result of an "accident", as defined in section 2 of the Schedule?

2. The Applicant also claims his expenses related to the hearing.

Result:

1. Mr. Vineski was injured as a result of an accident, as defined in section 2 of the Schedule.

2. Mr. Vineski is entitled to his expenses related to this preliminary hearing.

Hearing:

The hearing was held in North York, Ontario, on June 21, 1995, before me, Deena Baltman, Arbitrator. Counsel made additional submissions by telephone conference on August 30, 1995.

Present at the Hearing:

Applicant's Representative:

Barbara L. Legate Barrister and Solicitor

Insurer's Representative:

David A. Zuber Barrister and Solicitor

The parties submitted an agreed statement of facts. No witnesses were called. The cases and authorities considered are set out in Appendix A to this decision.

Facts:

The parties proceeded on the basis of the following agreed statement of fact:

1. Jonathan Vineski is a Dependent of the insured, Michael Turner.

2. Michael Turner holds a policy of motor vehicle insurance with Federation Insurance Company of Canada.

3. On June 5, 1993, Jonathan Vineski was riding westbound on Commissioner Street in the Village of Embro. He was riding a bicycle that had been lent to him by a friend with whom he was staying over the weekend.

4. The bicycle was in good working condition and had been tested out by the friend, Chris Steele and his father, in the week prior to the incident, and had been ridden by Chris Steele and Jonathan Vineski prior to the incident.

5. On the north side of the street, there is a small apartment building, a laneway leading between the small apartment building and the next adjacent building, which is the Royal Bank of Canada. In front of the Royal Bank of Canada and the small apartment building is a sidewalk. Adjacent to that on the roadway is an unmarked parking area. Cars typically pull in perpendicular to the sidewalk or park on an angle.

6. Jonathan was riding along the street sufficient distance out from the sidewalk to avoid colliding with any of the cars that were parked out in front of the Royal Bank of Canada. As he rode his bicycle in front of the apartment building, approaching the laneway and the Royal Bank of Canada, he heard the sound of a vehicle being started.

7. Jonathan looked to his right to see where the car was and to determine whether he was in any danger.

8. Jonathan doesn't know where the car that was started was but thinks it may have been down the alley.

9. Jonathan never saw the car. Accordingly he doesn't know if it ever moved.

10. Before Jonathan was able to look back to where he was going, he drove into a pothole in the road. Jonathan describes the incident as follows:

Q. What happened then?

A. The pothole somehow grabbed the wheel and it twisted it when I was going that speed and it twisted the wheel and the little nut through the centre of the wheel like where the bolts that snapped in half and that's what caused me to go over.

Q. The wheel came off?

A. Yes, it twisted and broke off and that is what caused me to fall down.

11. Chris Steele who was riding with Jonathan did not hear a car start or see a car move.

12. Jonathan landed on his face and head and sustained injuries.

[emphasis added]

Although the car in question was never identified, the Insurer agrees that the Applicant heard the sound of a car engine being started.

Analysis:

Section 2 of the Schedule defines "accident" as:

... an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to any...device; [emphasis added]

Therefore, in order to qualify for benefits, the Applicant must establish that he was injured,

a) as a result of an incident that

b) involved the use or operation of an automobile, and

c) the use or operation of the automobile caused his injuries, directly or indirectly.²

The parties agree that the Applicant's injuries result from an "incident". The dispute is over whether, firstly, the incident involved the use or operation of an automobile, and, secondly, whether such use or operation directly or indirectly caused the Applicant's injuries. I will deal with each question in turn.

1. Use or Operation

The Insurer submits that the mere starting of a car engine is not sufficient to constitute "use or operation". It argues that as there is no evidence that the vehicle in question ever moved, the car was not in use or being operated for any purpose.

In the recent decision of Faria v. Ferreira (1995) 1995 CanLII 10632 (ON CTGD), 22 O.R. (3d) 737, the court concluded that leaving a car parked constituted "operation" of a vehicle. In that case, the plaintiff parked his car in the same location for two months, during which time his insurance lapsed. After his car became uninsured, it was struck by the defendant's vehicle. The Plaintiff sued for property damage.

The insurer in Faria relied on section 265(7) of the Insurance Act, which precludes recovery for property damage "arising directly or indirectly from the use or operation" of an uninsured automobile. It also pointed to section 2(1) of the Compulsory Automobile Insurance Act, which provides that no owner shall "operate" or permit a motor vehicle "to be operated" without insurance.

Mr. Justice White held that the plaintiff was precluded from recovering damages because he was operating his car at the time it was damaged:

"He was operating that motor vehicle in the act of parking that vehicle, and leaving it parked, while that vehicle was insured. Since the vehicle belonged to him, and he had full control over that vehicle, both before and after it was an insured vehicle, his leaving that vehicle in a parked position after it became uninsured on a highway constitutes the operation of a motor vehicle..."

While that finding served to limit rather than broaden the claimant's recovery, it is consistent with a liberal reading of the term "use or operation" in statutes dealing with automobile insurance. Moreover, if leaving a vehicle parked or stationary constitutes use or operation, then clearly so might the starting of an automobile.

In Portch,³ a tractor-trailer driver was injured while unloading his truck. Arbitrator Draper considered the phrase "use or operation" to include ordinary and well known activities to which a motor vehicle might be put:

A number of judges have commented on the broad or liberal interpretation given to the phrase "use or operation". Clearly, "use or operation" extends well beyond driving the vehicle. Injuries resulting from discharging gasoline from a tanker truck (Stevenson), draining or syphoning gasoline from a vehicle (Pioneer Grain and Shelton), and drilling a hole in the trunk of an automobile to connect wires to a trailer (Gramak), have all been found to arise from the "use or operation" of an automobile.

I must assume that the Legislature was aware of the courts' approach when it chose the phrase, "use or operation". . . Mr. Portch was injured while preparing his truck to be unloaded. In my opinion, this falls well within the "ordinary and well-known activities" to which a truck and trailer is put.

The most ordinary and well-known use of a car is to carry people and property from place to place; of necessity, that includes starting the car engine. Starting the engine is the usual first step to many, if not all, of a car's uses and operations. I therefore find that the starting of a car engine in itself constitutes use or operation of an automobile.

2. Causation

a) Introduction

In order for the Applicant to succeed, he must establish that

"...the use or operation of an automobile causes, directly or indirectly...injury..."

This wording requires a causal relationship between the use or operation of the vehicle, on the one hand, and the injuries sustained, on the other.

I have already found that the starting of the car engine, on its own, constitutes sufficient "use or operation" of the vehicle to satisfy the wording of section 2. The issue, then, is whether the starting of the engine caused the Applicant's injuries, directly or indirectly.

b) Submissions

Ms. Legate, on behalf of the Applicant, maintains that there is a direct line of causation between the distraction of the car engine and the injury; in reacting to the sound of the car engine, Mr. Vineski failed to see the approaching pothole and fell to the ground.

In the alternative, Ms. Legate argues that there is an indirect link between the distraction of the car engine and the injury. She maintains that the word "indirect" in the section contemplates a chain of events precipitated by the use of an automobile and leading to an injury.

In this case, Ms. Legate points to the following chain of events: the sound of the engine distracted the Applicant; he tried to determine where the car was so he could avoid danger; in so doing he took his eyes off the road and failed to see the impending pothole; the force of hitting the pothole snapped the wheel and caused the bike to go over; the Applicant was thrown onto the roadway and sustained injuries.

Mr. Zuber, on behalf of the Insurer, argues that neither a direct nor an indirect link exists between the use of the car and the injuries. He submits that three intervening acts sever the causation or make the nexus too weak: (i) the inattentiveness or over-reaction of Mr. Vineski; (ii) the existence of the pot hole; and (iii) the collapse of the front bicycle wheel. But for any of these three factors, he maintains, the incident would not have occurred.

Moreover, he contends that automobile insurance was not intended to extend to this type of incident; it is too remote an occurrence, and, if allowed, would open the floodgates to a myriad of tenuous claims.

c) Findings

Counsel referred to numerous cases which have considered wording similar to section 2. The majority of them involved disputes over whether an insurance policy covered losses arising from the policyholder's negligence.

In those cases, the courts alternated between two different tests in determining whether the use or operation of a vehicle caused the injury. The first is the "purpose test", which asks whether the accident resulted from an ordinary and well known activity to which automobiles are put.⁴ The second is the "chain of causation test", which requires a continuous chain of causation between the operation or use of the automobile and the injuries. If that chain is broken by an intervening act of negligence which itself creates liability, the injury does not result from the use or operation of the motor vehicle.⁵

In my view, cases which have interpreted similar phrases in the context of insurance policies are of limited assistance in interpreting the Schedule. The phrase under consideration here is a legislative provision, and, as such, should be given its plain and ordinary meaning.

I find it significant that the legislation contains the words "causes, directly or indirectly"; this wording is considerably broader than the typical wording found in insurance policies, i.e. "arising from" or "arising out of". I agree with the following comments of Arbitrator Palmer in Nasib S. Mander v. Wellington Insurance Co., September 24, 1995, OIC File No. A-002057:

In my view, the traditional "chain of causation" may be broken by the words "...or indirectly" which appear in the regulation. Although a causal relationship between the use of the automobile and the injuries is required, the present wording does not require the injuries to be the result of the direct or proximate use of the vehicle.

Counsel for the Insurer referred to a number of Commission decisions dealing with occupants of motor vehicles who have been shot or assaulted. Benefits were denied in those cases because the vehicles were not being used as an automobile at the time of the injury.

In McAllister, the Applicant and his wife were spending the night in their motor home when a robber shot and killed Mrs. McAllister. Mr. McAllister applied for death benefits, arguing that his wife had died as a result of an "accident" as defined in section 2.

Senior Arbitrator Rotter concluded that the robbery and murder of Mrs. McAllister arose from the use of the motor home as accommodation, and not as a result of its use as an automobile. The vehicle was simply the location of the crime that caused her death.

In Ekunah, the Applicant was the surviving spouse of a cab driver who was found stabbed to death in his taxi. Mrs. Ekunah claimed death benefits on the ground that her husband died "as a result of an accident". She maintained that taxi drivers are often the targets of violent crime, and therefore his operation of the taxi caused his death.

Arbitrator Draper found that Mr. Ekunah's use of the taxi was neither the direct nor indirect cause of his death:

Whether or not the traditional chain of causation test applies to the definition of "accident" in the Schedule, it is clear that there must be some nexus between the use of the vehicle and the injuries. The vehicle must be more than the site of the incident. Its use or operation must cause the injuries, directly or indirectly.

The primary cause of Mr. Ekunah's death was not the use or operation of his taxi. He was murdered. The issue is whether there is also a sufficient causal connection, direct or indirect, between his use or operation of the taxi and his death to bring it within the definition of "accident". In my opinion, there is not.

At most, it might be found that the assailant was attracted to Mr. Ekunah because taxi-drivers are easy targets who are likely to carry cash. I do not believe, however, that automobile insurance is intended to insure against the risks of carrying cash...

[emphasis added]

A different conclusion was reached in Mander. The Applicant was kidnapped at gunpoint in his limousine and forced to drive into the countryside, where he was robbed and then released. The Applicant claimed benefits for psychological injury resulting from the incident.

Arbitrator Palmer found that the use of the automobile caused the Applicant's injury:

... the Applicant was forced to operate his automobile: this operation, at gunpoint, caused him psychological injury. In my view, the lengthy period of forced operation of the automobile is crucial to my finding that the operation of an automobile has directly or indirectly caused psychological injury. If the gunman had instead immediately forced Mr. Mander from his vehicle and stolen it, the result might well be different.

These decisions suggest that a causal link does not exist simply because the parties happen to be inside or near a vehicle at the time of injury; there must be a reasonable nexus between the use of the vehicle and the injuries. That was the approach taken by Arbitrator Draper in Portch:

Markel and Royal are urging a rather technical interpretation of the word, "caused". They argue that it was the malfunctioning of the hydraulics, or the fork-lift that "caused" Mr. Portch's injuries. Given the use of the modifiers, "directly or indirectly", and the wording used in section 266 of the Insurance Act, I do not believe that this is the proper approach. A pothole, the blinding sun, or a jaywalking pedestrian may "cause" an accident, but it is difficult to believe that the injured person would not be entitled to accident benefits.

The first definition of "cause" in the Concise Oxford Dictionary (Eighth Edition) is:

1 a that which produces an effect, or gives rise to an action, phenomenon, or condition. b a person or thing that occasions something ...

In my view, this definition indicates that "caused" may be read more broadly. Whether the necessary connection exists between the use or operation of the vehicle and the injuries will depend on the particular facts of each case. Where the use or operation is unusual, the analysis is likely to be more difficult, but not fundamentally different.

[emphasis added]

A similar fact situation to the case at hand arose in Tippet v. Doe et al. (1987), 1987 CanLII 2607 (BC SC), 27 C.C.L.I. 70 (B.C.S.C.), which is contained in Appendix "B" of the Portch decision. Mr. Tippet was injured when the bicycle on which he was riding struck a parked car. He alleged that the collision resulted when he swerved in order to avoid traffic congestion. Mr. Tippet claimed no-fault benefits under the equivalent legislation in B.C., which covers injuries "arising from the use or operation of a motor vehicle".

The trial judge found on the facts that there was no other vehicle involved and the plaintiff was the author of his own misfortune. He considered, however, that the result might have been different had the involvement of another vehicle been proven:

In this case had another vehicle caused the plaintiff to swerve or lose control of his bicycle as he alleged then it could be said that the injuries arose either wholly or in part from the use or operation of that motor vehicle...

The Plaintiff then argued that by virtue of striking a parked vehicle he sustained his injury through the use or operation of a motor vehicle. The trial judge found that there was nothing about the parked car that caused the accident:

In this case the chain of causation in fact never arose vis-a-vis the parked automobile. If it did then it was broken or it came to an end upon the parking of the vehicle as the injuries arose solely from the operation of the bicycle. The involvement of the motor vehicle was by chance only. The plaintiff might well have collided with another bicycle, a pedestrian, or a tree, in which case there would be no question but that he would not be entitled to the no-fault benefits. If after being parked the car had slipped its brake and moved, the chain of causation would have continued and the sole issue would then be one of causation arising out of the fact of the vehicle moving. . . There would then be a causal connection between the bicycle and the motor vehicle even if, in those circumstances, the cause was accidental and no negligence was imputed to the owner of the vehicle...

[emphasis added]

It is clear from his reasons that the decision turned on the minimal involvement of the parked vehicle; Mr. Tippet struck the car after he lost control of his bicycle.

By contrast, in this case the vehicle was the precipitator of the events leading to the injury. Mr. Vineski was distracted from observing the road ahead of him by the sound of a vehicle being started in his vicinity. Although the vehicle in question was never identified, the Insurer agrees that the Applicant heard a car engine being started, looked around to locate the car, and in the process failed to see the approaching pothole.

Counsel for the Insurer argues that as Mr. Vineski's riding companion did not hear, let alone react to the car engine, the distraction was too minimal to form a nexus with the injury. Yet the Insurer has accepted, as set out in the agreed statement of facts, that Mr. Vineski "heard the sound of a vehicle being started" and then "looked to his right to see where the car was and to determine whether he was in any danger." It is thus clear that the Applicant was sufficiently distracted by the car engine that he took his eyes off the road; whether his reaction was excessive in relation to the degree of the distraction is irrelevant, as negligence is not a factor in a no-fault scheme.

It is certainly easier to imagine more obvious distractions, such as screeching brakes, honking horns, or an ambulance siren, all of which might lead to an accident; however, having agreed that this Applicant was in fact distracted by the sound of a vehicle being started, the Insurer cannot now question the reasonableness of the Applicant's response.

The Insurer further maintains that a number of intervening acts broke the line of causation; he relies, in particular, on the presence of the pothole and the Applicant's failure to steer around it. I disagree: while several acts took place between the time the Applicant heard the car start and when he fell, each act precipitated the next, thus creating a line of causation. Moreover, none of the so called "intervening factors" would have come into play had the Applicant not been initially distracted by the car engine; it was his attempt to determine the location of the car and ensure that he was out of danger that caused him to ride into the pothole.

My view may well have been different had the use of the car not been critical to the sequence of events that led to the injury. However, in this case the starting of the car engine was the precipitating cause of the injury. It set in motion the chain of events that led to the Applicant's injuries. As such, it was at least an indirect if not a direct cause of the incident.

Expenses

The Applicant is entitled to his expenses under section 282(11) of the Insurance Act.

Order:

1. Mr. Vineski was injured as a result of an accident, as defined in section 2 of the Schedule.

2. Mr. Vineski is entitled to his expenses related to this preliminary hearing.

September 8, 1995

Deena Baltman Arbitrator

Date

Appendix A

1. Amos v. Insurance Corp. of British Columbia (1994), 1994 CanLII 2442 (BC CA), 113 D.L.R. (4th) 269 (B.C.C.A.)

2. Boell v. Schinkel (1991), 1991 CanLII 7210 (ON CTGD), 3 O.R. (3d) 741 (Gen. Div.)

3. Canada (Attorney General) v. Connolly (1992), 1992 CanLII 583 (BC CA), 72 B.C.L.R. (2d) 166 (C.A.)

4. Dagg v. Abram’s Towing & Storage (1994), 1994 CanLII 7352 (ON CTGD), 21 O.R. (3d) 377 (Gen. Div.)

5. RufinaM. Ekunah and Simcoe & Erie General Insurance Company, March 23, 1995, OIC File No. A-007550

6. Faria v. Ferreira (1995) 1995 CanLII 10632 (ON CTGD), 22 O.R. (3d) 737

7. Fraser Valley Taxi Cabs Ltd. v. Insurance Corp. of British Columbia, 1993 CanLII 1417 (BC CA), [1993] I.L.R., 1-2941

8. Fraser Valley Taxi Cabs Ltd. v. Insurance Corp. of British Columbia leave to appeal to S.C.C. refused May 27, 1993

9. Gramak Ltd. v. State Farm Mutual Automobile Insurance Co. (1975), 1975 CanLII 427 (ON HCJ), 10 O.R. (2d) 518 (H.C.J.)

10. Gramak Ltd. v. State Farm Mutual Automobile Insurance Co. (1976), 1976 CanLII 747 (ON HCJ), 12 O.R. (2d) 553 (C.A.)

11. Handsard Official Report of Debates:

Legislative Assembly of Ontario, Thursday, December 14, 1989

12. Iaquone v. Florou et al, [1981] I.L.R. 1-1367, at 234 (Ont.S.C.)

13. Jefery v. Sawyer et al (1993), 1993 CanLII 5480 (ON CTGD), 16 O.R. (3d) 75 at 81 (Gen. Div.)

14. Kracson v. Pafco Insurance Co. Ltd. (1981), 1981 CanLII 1687 (ON HCJ), 121 D.L.R. (3d) 498 (Ont. Co.Ct.)

15. Law, Union & Rock Insurance Co. Ltd. v. Moore's Taxi Ltd., 1959 CanLII 81 (SCC), [1959] 22 D.L.R. (2d) 264 at 267 (S.C.C.)

16. Longarini v. Zuliani, October 5, 1992 (Ont. Ct. (Gen. Div.))

17. Longarini v. Zuliani, March 24, 1994 (C.A.)

18. Nasib S. Mander and Wellington Insurance Co., September 24, 1993, OIC File No. A-002057

19. Gordon McAllister and Dominion of Canada General Insurance Company, December 3, 1992, OIC File No. A-000926

20. McIndoe v. Insurance Corp. of British Columbia, 1990 CanLII 1801 (BC SC), [1990] I.L.R., 1-2612 (B.C.S.C.)

21. Mississauga Association for the Mentally Retarded v. Hartford Fire Insurance (1981), 1981 CanLII 1756 (ON HCJ), 33 O.R. (2d) 202 (H.C.)

22. Nova Scotia Power Corp. v. Tank Lines Ltd. (1978), 1978 CanLII 2137 (NS SC), 91 D.L.R. (3d) 410 (N.S.S.C.T.D.)

23. Omand v. Disabled & Aged Regional Transit Systems (1993), 1993 CanLII 8456 (ON CTGD), 14 O.R. (3d) 52 (Ont. Ct. (Gen. Div.))

24. Brian C. Portch and Markel Insurance Company of Canada; and Brian C. Portch and Royal Insurance Company of Canada, March 20, 1995, OIC File Nos. A-007701 and A-008360

25. Shelton v. Insurance Corp. of British Columbia, 1991 CanLII 14484 (BC SC), [1992] I.L.R., 1-2835 (B.C.S.C.)

26. Stevenson v. Reliance Petroleum Ltd. (1956), 1956 CanLII 27 (SCC), 5 D.L.R. (2d) 673 (S.C.C.)

27. Tippet v. Doe et al. (1987), 1987 CanLII 2607 (BC SC), 27 C.C.L.I. 70 (B.C.S.C.)

28. Whitehead v. Zozula, [1991] B.C.J. No.2407 (S.C.) (Q.L.)

29. Wu v. Malamas, 1985 CanLII 235 (BC CA), [1985] I.L.R., 1-1980

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Brian C. Portch and Market Insurance Company of Canada and Royal Insurance Company of Canada, April 19, 1995, OIC File Nos. A-007701 and A-008360; Gordon McAllister and Dominion of Canada General Insurance Company, December 3, 1992, OIC File No. A-000926; and Rufina M. Ekunah and Simcoe & Erie General Insurance Company, March 23, 1995, OIC File No. A-007550.
3. 3Appendix B to this decision contains a thorough review of relevant case law on this issue.
4. 4Stevenson v. Reliance Petroleum Ltd.; Reliance Petroleum Ltd. v. Cdn. General Insurance Co., 1956 CanLII 27 (SCC), [1956] S.C.R. 936, 5 D.L.R. (2nd) 673.
5. 5Law, Union & Rock Insurance Co. v. Moore's Taxi Ltd. (1959), 1959 CanLII 81 (SCC), [1960] S.C.R. 80, 22 D.L.R.(2nd) 264.