Neutral Citation: 1995 ONICDRG 138

File No.: A-008806

ONTARIO INSURANCE COMMISSION

BETWEEN:

CYNTHIA P. Applicant

and

NON MARINE UNDERWRITERS, MEMBERS OF LLOYDS, LONDON, ENGLAND Insurer

DECISION

Issues:

The Applicant's husband, Michael P., used his car to commit suicide on February 19, 1993. His widow, Cynthia P., applied for funeral expenses and death benefits on behalf of herself and her children. The Insurer refused to pay the statutory benefits claimed, on the grounds that Michael P.'s death did not result from an accident, within the meaning of section 2 of Ontario Regulation 672.¹

The issue in this hearing is:

Did Michael P. die as a result of an accident, within the meaning of section 2 of the Schedule?

Result:

Michael P. did not die as a result of an accident. Consequently, his widow and children are not entitled to the funeral expenses and death benefits claimed.

Hearing:

The parties filed a joint statement of fact, and each filed written submissions accompanied by authorities relied on. I heard oral submissions by way of telephone conference call on February 6, 1995.

Present at the Hearing:

Applicant's Representative: Mr. Robert W. Duncan Barrister and Solicitor

Insurer's Representative: Mr. Graeme Mew Barrister and Solicitor

Background:

This case concerns an application for death benefits and funeral expenses as the result of a suicide. The deceased, Michael P. of Cornwall, Ontario, committed suicide on February 19, 1993. He had attached a hose to the exhaust pipe of his car, and had run the other end of the hose into the passenger compartment of the car. He then turned on the motor and sat in the car while the passenger compartment filled up with carbon monoxide.

The parties agree that Mr. P. deliberately took his own life. The evidence before me, set out in an agreed statement of fact, indicates that Mr. P. had left notes to the effect that he was unhappy with life and had no reason to go on.

Mr. P. was survived by his wife, Cynthia P., and two dependent children.

Mrs. P. is seeking funeral expenses and death benefits under sections 10 and 11 of the Schedule, on behalf of herself and her two children. She claims that the suicide of Michael P. results from an accident within the meaning of section 2 of the Schedule.

The Insurer, Non-Marine Underwriters, Members of Lloyds, London, England, maintains that Mr. P.'s death did not result from an accident, pursuant to the Schedule.

The parties agree that if it is determined that the death of Michael P. resulted from an accident, Mrs. P. is entitled to funeral expenses in the amount of $7,500, death benefits of $50,000 for her and $20,000 for each of the children, for a total amount of $97,500.

Findings:

The Schedule provides, at sections 10 and 11, that an insurer will pay funeral expenses and death benefits, in amounts specified, if an insured person dies as a result of an accident.

The term accident is defined at section 2 of the Schedule as follows:

"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury or causes damage to a prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device;

The Applicant maintains that the death of Michael P. resulted from an incident involving the use or operation of an automobile and, accordingly, it can be considered an accident within the meaning of the legislation.

The Applicant relies on the use of the word "incident" in the definition. "Incident" is a term which primarily refers to a casual or subordinate event. It may also be used generally to refer to an occurrence, happening, or separate event². Its meaning is not limited to accidental or unforeseen events. It is a much broader term than the word "accident", which generally refers to unplanned and unforeseen events or mishaps.³

The legal meaning of the term "accident" has been extensively canvassed in numerous court decisions. I have reviewed the decisions referred to by both counsel in this case. The jurisprudence is clear: the courts have interpreted the term accident in its ordinary and popularly-understood meaning, in accordance with the well-accepted principle of construction which gives words used in legal instruments their plain, ordinary grammatical sense.⁴ Thus for example it has been held:

... the expression "accident" is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed.⁵

[my emphasis]

The Applicant submits that this established case law with respect to the meaning of "accident" is no longer applicable, because the Schedule has provided a new meaning and definition for the term. Counsel submits that this new definition is broader and more comprehensive than the old defination and includes any occurrence which can be described as "an incident in which the use or operation of a motor vehicle causes ...injury." This new definition supersedes the old case law definitions.

Much as I sympathize with the Applicant in this unfortunate case, I cannot accept this argument. Every accident can be described as "an incident" (in the sense of a happening or occurrence), but not all incidents are accidents. I find that the general term "incident" used in the definition cannot be interpreted so as to negate or render meaningless the specific term "accident", which, I find, must still be understood and construed in its ordinary and popular sense.

The definition in section 2 does not speak of "any "incident involving the use or operation of an automobile", but of "an "incident, which is first described as an accident.

I find that the definition restricts or limits the meaning of the term "accident" for the purposes of the Schedule, to situations where the use or operation of an automobile, directly or indirectly, causes personal injuries, of various sorts, or causes damage to personal property such as prostheses, prescription eyewear, or other medical or dental devices. It does not broaden the meaning of the term to include all such incidents, including incidents deliberately planned and intended to cause injury or damage. It does not speak to any incident where the use of a motor vehicle has caused injury, but only to those incidents which fall into the primary (and narrower) category of accidents.

In support of this finding, I refer to the standard rule of statutory interpretation that in construing legislation, the grammatical and ordinary sense of the words must be adhered to, within the general context and purpose of the enactment.⁶

It is also an established principle of interpretation that wherever possible, effect should be given to all words used in an enactment, so that none are redundant or superfluous. If I accepted the Applicant's argument, the use of the very term "accident" would be rendered redundant and superfluous.⁷

I also refer to the principle of construction, known as the eiusdem generis rule, which states that general words in an instrument are to be limited in the context of the particular document and its objects. This rule has been formulated, as follows:

words, however general, may be limited in respect to the subject matter in relation to which they are used. ... general words may be restricted to the same genus as the specific words that precede them.⁸

Applying the eiusdem generis rule, I conclude that the meaning of the general term incident" must be limited or restricted to the subject matter or category of accident", which is the specific term that precedes the general term used.

Accordingly, I find that the suicide of Michael P. cannot be described as the result of an accident. Although Mr. P. died directly as a result of an incident involving the use or operation of a motor vehicle, the incident itself was not an accident. On the evidence, Mr. P.'s death was planned and deliberate, and an objectively foreseeable result of his actions. He intended to die and left a note to that effect, before taking the actions which resulted in his death. As affirmed by JJ. A Blair in Stats v. Mutual of Omaha Insurance Company:

...The test of whether that mishap is an accident is the actual mental state of the actor at the time the act leading to it is performed.

Obviously, where the result is intended, as with suicide or an intentional tort, it is not an accident: ... ⁹

The Applicant also argued that the fact that a new definition has been introduced, combined with a change in the standard Ontario Automobile Policy eliminating the former exclusion for suicide, suggests that coverage for suicide was contemplated or intended. The pre-1990 Ontario Standard Automobile Policy contained a specific exclusion for cases of suicide. That exclusion clause is no longer part of the current Ontario Automobile Policy. However, the omission of the clause from the standard policy does not persuade me that suicide was intended to be covered.

In Re Ontario Voters Lists Act, West York¹⁰ it was held that the omission of certain words present in previous legislation does not necessarily imply that the meaning of the revised legislation is to be enlarged. It could equally mean the legislators felt that the excluded clause was redundant and unnecessary.

In the present case, I find it more plausible that the exclusion for suicide was omitted as redundant, in light of the established case law and common-sense understanding that suicide is not an accident. Nor do I accept the Applicant's argument that coverage should only be denied where there is clear and unequivocal language excluding suicide. Both the Schedule and the policy contain exclusion sections¹¹, which set out circumstances where benefits will not be paid. Although there is no longer an exclusion for suicide, neither is there a specific exclusion in respect of, for example, injuries sustained by intentional tortfeasors, or individuals who deliberately stage accidents using motor vehicles. In such cases, the outcome is intended and the incident cannot be termed an accident.¹² It would be difficult to accept that the individual who deliberately perpetrated such incidents would qualify to receive accident benefits, notwithstanding that the incident involved the use or operation of an automobile.

Finally, I note that the Insurer's submission that in any event, the suicide did not involve "the use or operation of an automobile" since "use or operation", in the context of an insurance policy, refers to the ordinary and well-known activities to which automobiles are put."¹³

I need not determine whether Mr. P.'s use of the vehicle to commit suicide constitutes one of its "ordinary and well-known activities" since I have found that his death was not the result of an accident.

Expenses:

The parties did not specifically address the issue of expenses. However, this case involves a bona fide dispute about the interpretation of a pivotal term in the legislation. I find this is an appropriate case in which to award the Applicant her expenses incurred in the hearing.

In the event of a dispute about the amount of expenses owing, either party may apply for an assessment of expenses.

Order:

1. The Applicant is not entitled to the funeral and death benefits claimed since her husband, Michael P., did not die as a result of an accident.

2. The Applicant is entitled to her expenses incurred in the arbitration hearing.

September 29, 1995

Frederika Rotter Senior Arbitrator

Date

APPENDIX - Cases and Authorities relied on

Cases

Brown Bros. Ltd. V. Popham et al., 1939 CanLII 100 (ON CA), [1939] 4 D.L.R. 662 (Ont. C.A.) At 670

Chateauvert v. Economical Mutual Insurance Company [1980], I.L.R. 834 (Ont. H.C.)

Dobish v. Garies et al.: State Farm Fire and Casualty Co. (1985), 1985 CanLII 1338 (AB QB), 15 C.C.L.I. 69 (Alta. Q.B.)

Fenton v. J. Thorley & Co., Ltd., [1903] A.C. 443

Jeffrey v. Sawyer (1993), 16 O.R.( 93d) pp. 82-83

Johnson v. Mutual of Omaha Insurance Co. (1984), 39 O.R. (2d) 676 (C.A.)

Kimball Fabricating Limited v. London Midland General Insurance Company [1975], C.I.L.R. 1-672

Krupica v. Atlantic Mutual Life Assurance Co. et al. (1988), 1988 CanLII 4715 (ON HCJ), 66 O.R. (2d) 140 (Dist. Crt.)

Linsely v. Co-Operators Insurance Association of Guelph, 1975 CanLII 733 (ON HCJ), [1975] I.L.R. 1206 (Ont. S.C. at 121)

McAllister v. Dominion of Canada General Insurance Co., [1992] O.I.C.D. No. 48

Mutual of Omaha Insurance Co. v. Stats, 1978 CanLII 38 (SCC), [1978] 2 S.C.R. 1153

Re Acadia Pulp & Paper Ltd.and Minister of Municipal Affairs (1973), 1973 CanLII 1211 (NB CA), 41 D.L.R. (3d) 589 at 592

Re Ontario Voters Lists Act, West York (1907), 15 D.L.R. 303 (Ont. C.A.)

Schell v. Gore Mutual Insurance Co. (1988), 63 O.R. (2d)

Stats v. Mutual of Omaha Insurance Co. (1976), 1976 CanLII 50 (ON CA), 14 O.R. (2d) 233 (C.A.), affirmed 1978 CanLII 38 (SCC), [1978] 2 S.C.R. 1153

Stevenson v. Reliance Petroleum Ltd. V. Canadian General Insurance Co. (1956), 5 D. L. R. (92d) 673 at 676

Thames and Mersey Marine Insurance Co. Ltd. v. Hamilton Fraser & Co. (1987), 12 App. Cas. 484

Authorities

Canadian Encyclopedic Digest (Ontario) 3rd ed., vol. 5, para. 492

Kim Lewison, The Interpretation of Contracts (Sweet & Maxwell, 1989)

Merriam-Webster Dictionary

The Shorter Oxford English Dictionary, Third Edition, Volume 1, Clarendon Press

The Merriam Webster Dictionary: incident 1: something dependent on or subordinate to something else of greater or principal importance 2 a: an occurence of an action or situation that is a seperate unit of experience : HAPPENING b: an accompanying minor occurence or condition

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. 2The Shorter Oxford English Dictionary: incident 1. Something that occurs casually in connection with something else; an event of accessory or subordinate character.
3. 3Merriam Webster: accident 1 a: an unforeseen and unplanned event or circumstance b: lack of intention or necessity: 2 a: an unfortunate event resulting esp. from carelessness or ignorance b: unexpected happening causing loss or injury which is not due to any fault or misconduct on the part of the person injured but for which legal relief may be sought
4. 4Stats v. Mutual of Omaha Insurance Co. ,(1976), 14 O.R. (2d) at p. 236
5. 5Fenton v. J. Thorley & Co., Ltd., [1903] A.C. 443 as cited in Stats (supra) p. 236
6. 6Dreidger on the Construction of Statutes, Third Edition, Ruth Sullivan, Ed., pp.7-8
7. 7Brown Bros. Ltd. v. Popham et al., 1939 CanLII 100 (ON CA), [1939] 4 D.L.R. 662 (Ont C.A.) p. 670 Re Acadia Pulp & Paper Ltd. and Minister of Municipal Affairs (1973) 1973 CanLII 1211 (NB CA), 41 D.L.R. (3d) 589, p. 592
8. 8Thames and Mersey Marine Insurance Co. Ltd. v. Hamilton Fraser & Co. (1987), 12 App. Cas. 484 as cited in Kim Lewison, The Interpretation of Contracts (Sweet & Maxwell, 1989), pg. 65
9. 9Stats v. Mutual of Omaha Insurance Company, (supra), p. 236
10. 10Re Ontario Voters Lists Act, West York (1907), 15 D.L.R. 303 (Ont. C.A.)
11. 11Section 17 of the Statutory Accident Benefits Schedule, R.S. O. 1990, Reg. 672
12. 12Jeffrey v Sawyer, 1993, 16 O.R. (3d) pp.82-83 "As an intentional tort requires deliberate conduct in cannot, in my opinion, be said that the deliberate use of a motor vehicle to injure an individual creates an automobile accident. "
13. 13Stevenson v. Reliance Petroleum Ltd. v. Canadian General Insurance Co. 1956 CanLII 27 (SCC), 1956, 5 D.L.R. (2d) 673 at 676