Neutral Citation: 1995 ONICDRG 28

File No. A-007550

ONTARIO INSURANCE COMMISSION

BETWEEN:

RUFINA M. EKUNAH

Applicant

and

SIMCOE & ERIE GENERAL INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Rufina M. Ekunah, is the surviving spouse of Anthony Ekunah. On July 1, 1991, Mr. Ekunah was found dead in his taxi. It is clear that he was murdered, although no one has been arrested. Mrs. Ekunah applied to her husband's automobile insurer, the Simcoe & Erie General Insurance Company ("Simcoe & Erie"), for accident benefits under Ontario Regulation 672¹. She claimed funeral expenses, and death benefits for herself and her two children.

Simcoe & Erie refused to pay any accident benefits on the basis that Mr. Ekunah did not die "as a result of an accident", as defined in the Schedule. It also maintained that the younger child, Toni Ekunah, did not qualify for death benefits because she was not born until after her father's death and, therefore, was not a "dependant at the time of the accident".

After an unsuccessful attempt at mediation, Mrs. Ekunah applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The issues in this hearing are:

1. Was Mr. Ekunah's death "as a result of an accident?"

2. If so, does Toni Ekunah qualify for death benefits as "a dependant at the time of the accident?"

Mrs. Ekunah also claims interest on any outstanding amounts owing, and her expenses related to the arbitration.

Result:

1. Mr. Ekunah's death was not "as a result of an accident" and, therefore, Simcoe & Erie is not required to pay either funeral expenses or death benefits.

Mrs. Ekunah is entitled to her expenses related to the arbitration.

Hearing:

The hearing was held in North York, Ontario, on November 24, 1994, before me, David R. Draper, arbitrator.

Present at the Hearing:

Applicant:

Rufina M. Ekunah

Applicant's Representative:

Peter A. Grunwald Barrister and Solicitor

Susan Jack, assisting Mr. Grunwald

Insurer's Representative:

Ralph D'Angelo 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.

Reasons for Decision:

The hearing proceeded based on an agreed statement of facts, that states as follows:

1. The late Anthony Ekunah was a taxi driver who owned his vehicle and leased his plate from the owner.

2. Anthony Ekunah was married to the applicant, Rufina Ekunah, on December 20, 1984, at Ngbu-Elia, Ndele, in the Republic of Nigeria.

3. Anthony Ekunah and Rufina Ekunah had one child during their joint lifetimes, Michael Ekunah, who was born on April 24, 1989 in North York, Ontario.

4. At the date of Anthony Ekunah's decease, the night of June 30 to July 1, 1991, Rufina Ekunah was carrying another child who was fathered by Anthony Ekunah. That child, Toni Maria Ekunah, was born alive on August 15, 1991 in North York, Ontario.

5. The motor vehicle, used and operated by Anthony Ekunah as a taxi cab on the night of June 30 to July 1, 1991, was insured under a standard Ontario automobile insurance policy issued as policy #A00059601 FAC by Simcoe & Erie General Insurance Company. The said policy of insurance was in full force and effect at the relevant time.

6. On July 1, 1991 Anthony Ekunah was found dead in his taxicab. He had been murdered. The Metropolitan Toronto Police Force has been treating the matter as a homicide.

7. Rufina Ekunah has made an application to Simcoe & Erie General Insurance Company for death benefits and funeral expenses under the No Fault Benefit Schedule of the said policy of insurance, but Simcoe & Erie General Insurance Company has declined coverage.

8. Mediation has failed and the matter has proceeded to arbitration. An arbitration

hearing is scheduled to be held on Thursday, November 24, 1994, at 2:00 p.m.

9. Counsel for the applicant and the insurer have met with the investigating police officer to establish as much detail as possible concerning the death of Anthony Ekunah for the purpose of preparing this Agreed Statement of Facts. The information outlined below results from said meeting.

10. Anthony Ekunah started his shift driving the taxicab at 11:30 p.m. the night of Sunday, June 30, 1991.

11. At about 11:07 a.m. on Monday, July 1, 1991, Anthony Ekunah was discovered in his vehicle on Rondeau Drive, in the Leslie Street and Steeles Avenue area of North York, in the Municipality of Metropolitan Toronto.

12. The vehicle was discovered parked on the "wrong" side of the street facing north, in a residential area.

13. The vehicle was a blue car with a Yellow Cab marker light on its top, and dispatched through Metro Cab.

14. At the time of the discovery the vehicle's engine was not running and there was gasoline in the tank. The keys were in the ignition and the taxi meter was running.

15. Anthony Ekunah, a large man, was found dead in the vehicle. Numerous stab wounds had been inflicted on the body.

16. At 12:54 p.m. on July 1, 1991, Anthony Ekunah was pronounced dead at the scene by the attending coroner.

17. Death was clearly a homicide, the stab wounds clearly being not self-inflicted.

18. An autopsy performed later on the body confirmed the cause of death as described above.

19. When discovered, Anthony Ekunah's body was on the floor of the vehicle just in front of the front passenger seat. The body was facing towards the driver's side of the vehicle and the back towards the passenger side front window. The head was just above the passenger window's frame. Anthony Ekunah's upper extremities were found to be on the vehicle's front seat, and one of the lower extremities was partly on the front seat. The buttocks were on the floor. The body appeared to be wedged in.

20. There was no apparent evidence of damage to the exterior of the vehicle other than the usual minor bumps and dents resulting from normal wear and tear.

21. There was, however, apparent evidence of damage to the interior of the vehicle. Such evidence resulted from the assault of Anthony Ekunah resulting in his death and it constitutes evidence of a struggle.

22. On Anthony Ekunah's body was found the sum of $22.00 in his left front shirt pocket, but no other money. Anthony Ekunah's watch and rings had not been removed. The investigating officer does not think a wallet belonging to Anthony Ekunah was found on the body, but indicates that Anthony Ekunah was not known to carry one.

23. Anthony Ekunah's driver's licence, insurance card and vehicle ownership certificate were found in the vehicle but not on Anthony Ekunah's person.

24. The evidence discloses that, prior to the taxi meter being started on the last occasion before the discovery of the vehicle and body at the location described in paragraph 11 above, Anthony Ekunah had picked up a few fares during the night of June 30 to July 1, 1991.

25. The evidence also discloses that the fares from these prior passengers would have come to more than the $22.00 found in the deceased's left front shirt pocket.

26. In addition to the said $22.00, there was some additional money found in the vehicle, not on Anthony Ekunah's person.

27. At the present time the investigation is in abeyance but not closed. If new leads develop the investigation continues. For that reason the investigating officer is not at liberty to divulge certain other information about which he was specifically asked by counsel and which is set out below.

28. As far as the body is concerned the investigating officer could not divulge the number of stab wounds or the parts of the body stabbed.

29. As far as the taxi meter is concerned the investigating officer could not divulge:

(a) how much of a fare had been "rung up" on the meter when the discovery was made, remembering that the meter was found "running" at the time; and

(b) how much the prior fares would have come to.

30. As far as the contents of the vehicle at the time of discovery, other than what is described above, the investigating officer could not divulge what, if anything else, was found in the car, and specifically could not divulge:

(a) where in the vehicle Anthony Ekunah's driver's licence, insurance card and ownership certificate were found;

(b) whether or not any "trip sheets" were found in the vehicle";

(c) whether or not there was any evidence such as a notebook to record trips, other than trip sheets;

(d) how much the fares would have come to from the passengers picked up by Anthony Ekunah prior to his last fare in respect to which the taxi meter was found running when Anthony Ekunah was discovered on July 1, 1991;

(e) how much money was found in the vehicle apart from the $22.00 found in Anthony Ekunah's left front shirt pocket; and

(f) whether the total amount of money found in the vehicle amounted to less than the total of fares Anthony Ekunah would have collected from his passengers prior to his last fare on the night in question.

1. The "Accident" Issue

Mrs. Ekunah claims funeral expenses of $3,000 under section 10 of the Schedule, which provides:

10. The insurer will pay with respect to each insured person who dies as a result of an accident funeral expenses incurred up to $3,000 ... [emphasis added]

She also claims death benefits of $25,000 under section 11(1)(a) as Mr. Ekunah's surviving spouse, and $10,000 for each of her two children under section 11(1)(c), as Mr. Ekunah's surviving dependants. These sections provide:

11.--(11) If, as a result of an accident, an insured person dies within the benefit period set out in subsection (3), the insurer will pay with respect to the insured person, ...

(a) $25,000 to his or her spouse, if the deceased is survived by a spouse who was his or her spouse at the time of the accident;

(c) $10,000 to each of his or her surviving dependants who was a dependant at the time of the accident; [emphasis added]

Mrs. Ekunah's position is certainly sympathetic. She lost her husband as a result of a brutal crime. However, Simcoe & Erie is not responsible for paying benefits unless Mr. Ekunah died "as a result of an accident". "Accident" is defined in 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 ...

Therefore, Mrs. Ekunah must establish that her husband died:

1. as a result of an incident that

2. involved the use or operation of his taxi, and

3. his use or operation of his taxi caused his death, directly or indirectly.

Her position is that her husband died because he was driving a taxi. I would summarize Mr. Grunwald's submissions as follows:

• The available evidence establishes, on a balance of probabilities, that at the time of the incident, Mr. Ekunah was operating his vehicle as a taxi, carrying passengers. There is evidence that he had "picked up a few fares on the night of June 30 to July 1, 1991", and that the meter was running when the vehicle was found.

• The available evidence establishes, on a balance of probabilities, that Mr. Ekunah was robbed and murdered by a passenger. The most compelling evidence in support of this conclusion is that he was found in his taxi with the meter running, and there was evidence of a struggle in the taxi.

• It is well known that taxi-drivers are often the targets of violent crime. Therefore, it is reasonable to conclude in the absence of any other explanation that Mr. Ekunah was targeted because he was driving his taxi.

Simcoe & Erie claims that Mrs. Ekunah has not established the factual basis of her claim. Mr. D'Angelo submitted that because the taxi was not running when it was found, it is not clear that it was being operated at the time of the incident. Further, there is no evidence that anything was taken. In fact, there is evidence that robbery was not the motive; money was found on Mr. Ekunah and in the taxi, and his rings and watch were not taken. Mr. D'Angelo also submitted that even if I find that Mr. Ekunah was robbed and murdered, it would be improper to assume that it was because he was driving a taxi.

Simcoe & Erie also disputed the legal basis of Mrs. Ekunah's claim. Mr. D'Angelo submitted that even if it could be established that Mr. Ekunah was murdered by a paying customer, that would not be sufficient, as a matter of law, to establish that his death was caused, directly or indirectly, by the operation of a motor vehicle. Rather, his death resulted from a criminal act unrelated to the operation of the vehicle.

Canadian courts have frequently considered the phrase, "arising out of the use or operation of a motor vehicle", or similar wording. I recently reviewed and summarized many of the leading decisions in Brian C. Portch and Markel Insurance Company of Canada; Brian C. Portch and Royal Insurance Company of Canada, March 20, 1995, OIC File Nos. A-007701 and A-008360.

The courts have held that in order to establish that the injuries arise out of the use or operation of a motor vehicle, the person must establish:

1. that the accident resulted from an ordinary and well-known activity to which automobiles are put (the "purpose test"); and,

2. that there is a causal link between the ordinary use of the automobile and the injuries, uninterrupted by any intervening act ("the chain of causation test").

These tests were developed to determine whether an insurance policy covered the damages resulting from the policyholder's negligence. In a no-fault scheme, negligence is less important. It is not obvious, therefore, that the traditional tests, particularly the chain of causation test, apply directly to a no-fault scheme established in legislation. Despite this, some judges have continued to apply the chain of causation test².

In addition, the particular wording of the Schedule must be considered. The definition of "accident" in section 2 uses the phrase, "causes, directly or indirectly", rather than the more typical, "arising from", or, "arising out of". I agree with the following comments of Arbitrator Palmer in Nasib S. Mander and Wellington Insurance Company, September 24, 1993, OIC File No. A-002057):

. . . 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..

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.

Mrs. Ekunah contends that the nexus in this case is that her husband was targeted as a robbery victim because he was driving a taxi. I was referred to the following four decisions dealing with occupants of motor vehicles who have been shot or assaulted.

In McIndoe v. Insurance Corp. of British Columbia (1990), 1990 CanLII 1801 (BC SC), 45 C.C.L.I. 68, [1990] I.L.R. 1-2612 (B.C.S.C.), a police officer was pursuing a vehicle in which Mr. McIndoe was a passenger³. When the terrain became rough, the police officer left his cruiser and continued to pursue the vehicle on foot. While running, the police officer drew his service revolver and it accidentally discharged. The bullet grazed Mr. McIndoe, injuring his eye.

Mr. McIndoe applied for accident benefits under British Columbia's no-fault scheme. The legislation provides that in order to be entitled to benefits, the plaintiff's injuries must have been "caused by an accident that arises out of the ownership, use or operation of a vehicle." Skipp, J. applied the chain of causation test, and concluded:

The discharge of Constable Kirkpatrick's revolver was the most proximate cause of the injury sustained by the plaintiff, but in my view the cause of this injury cannot be solely attributed to the accidental discharge of the revolver. The negligent use or operation of the vehicle by Pasmen [the driver] was a contributing cause and I find therefore the plaintiff to be entitled to Part VII benefits.

The decision in McIndoe suggests that injuries caused by an external event may be covered by British Columbia's no-fault scheme, as long as the use or operation of the vehicle somehow caused the external event.

A different conclusion was reached in Amos v. Insurance Corp. of British Columbia (1993), 1993 CanLII 2787 (BC SC), 13 C.C.L.I. (2d) 274 (B.C.S.C.). In that case, Mr. Amos was driving his van, when six men surrounded it and attempted to stop him. Mr. Amos kept moving slowly ahead. One of the men shot him in the chest. Mr. Amos then accelerated and left the scene.

Mr. Amos applied for no-fault benefits under the same provision as Mr. McIndoe. Hardinge J. carefully reviewed a number of authorities, and concluded:

In the present case I am unable to find that the injuries sustained by Mr. Amos resulted in any way from an accident, "which the common judgment in ordinary language would attribute to the utilization of an automobile." He was the innocent victim of an act of wanton criminal violence. There is, however, no evidence that his assailants were attempting to hijack his van or that the van itself in any way contributed to or aggravated his injuries.⁴

In Gordon McAllister and Dominion of Canada General Insurance Company, December 3, 1992, OIC File No. A-000926, Senior Arbitrator Rotter had to decide whether a murder victim's spouse was entitled to death benefits under an Ontario automobile policy. Mr. and Mrs. McAllister set out on a trip in their motor home. They decided to spend the night in a highway rest area. They were awakened by banging on the door. Mrs. McAllister opened the door and was confronted by a man with a gun demanding money. He took the money and then shot both Mr. and Mrs. McAllister, fatally wounding Mrs. McAllister. Mr. McAllister applied for death benefits.

According to the Schedule, Mr. McAllister had to establish that his wife died as a result of an "accident", as defined in section 2. Senior Arbitrator Rotter concluded that Mrs. McAllister's death arose in connection with the use of the motor home as accommodation, and not as a result of its use as an automobile. She also concluded that Mrs. McAllister's death was not caused, directly or indirectly, by the motor vehicle; the vehicle was simply the location of the crime that caused her death.

The decisions in Amos and McAllister suggest that an assault directed at an occupant of a vehicle generally is outside of automobile insurance coverage.

An exception to this general rule is found in the decision of Arbitrator Palmer in Nasib S. Mander and Wellington Insurance Company, September 24, 1993, OIC File No. A-002057.

In Mander, a passenger in Mr. Mander's limousine forced him to drive at gunpoint into the isolated countryside. He then made Mr. Mander stop the limousine, leave his money, get out and walk quickly away. Mr. Mander developed a psychological injury, and was unable to drive his limousine for seven weeks. He applied for weekly income benefits under section 12 of the Schedule. The insurer took the position that Mr. Mander's injuries were not the result of an accident, within the meaning of section 2 of the Schedule.

Arbitrator Palmer found that the vehicle was more than the location of the crime; his injuries were caused by being forced to drive at gunpoint:

In my view, the fact of being forced to operate his vehicle while a gun was being held on him, caused Mr. Mander psychological injury. I therefore find that "the use or operation of an automobile" has at least indirectly, if not directly, caused the Applicant's injury.

Arbitrator Palmer clearly indicated that her decision was based on the particular facts of the case. The critical factor was that Mr. Mander's injuries resulted from being forced to drive his vehicle at gunpoint:

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. As was found in the McAllister case, the Amos v. Insurance Corp. of British Columbia (1993), 1993 CanLII 2787 (BC SC), 13 C.C.L.I. (2d) 274 (B.C.S.C.) case and others, the mere presence of an applicant in a vehicle when injuries are sustained is not sufficient.

Mr. Ekunah's situation is quite different from Mr. Mander's. 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. In the McAllister case, the assailant may well have been attracted to the motor home as a convenient and potentially lucrative site for a robbery. This does not mean, however, that Mrs. McAllister's death was caused, directly or indirectly, by the use or operation of a motor vehicle. Tragically, she was murdered, as was Mr. Ekunah.

I conclude, therefore, that Mrs. Ekunah is not entitled to funeral expenses or death benefits under the Schedule. I take no pleasure in reaching this decision. In my opinion, however, Mrs. Ekunah's loss is outside of the scope of accident benefits.

2. The "Dependant" Issue

Because I have concluded that accident benefits are not payable, it is unnecessary for me to decide whether Toni Ekunah is entitled to death benefits.

3. Special Award

I have concluded that Simcoe & Erie is not required to pay any accident benefits. Therefore, no special award is payable.

4. Expenses

An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

282 (11) The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

Arbitrators have consistently granted expenses unless the claim was fraudulent, manifestly frivolous or vexatious, or the applicant's conduct unduly prolonged the proceedings. None of those concerns exist in this case. I conclude that I should exercise my discretion to award Mrs. Ekunah her expenses related to the arbitration, calculated according to Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.

The parties are encouraged to reach an agreement as to the amount of the expenses. However, if an agreement cannot be reached, I remain seized of this matter and either party may apply for an assessment of the expenses.

Order:

1. Mr. Ekunah's death was not "as a result of an accident" and, therefore, Simcoe & Erie is not required to pay either funeral expenses or death benefits.

Mrs. Ekunah is entitled to her expenses related to the arbitration.

March 23, 1995

David R. Draper Arbitrator

Date

APPENDIX A

Cases and authorities considered:

Re the "accident" issue

Amos v. Insurance Corp. of British Columbia (1993), 1993 CanLII 2787 (BC SC), 13 C.C.L.I. (2d) 274 (B.C.S.C.)

Cella (Litigation guardian of) v. McLean (Unreported - August 24, 1994) Ontario Court of Justice – General Division.

Excerpt from Driedger on the Construction of Statutes (3rd ed.).

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

Law, Union & Rock Insurance Co. Ltd. v. Moore's Taxi Ltd., 1959 CanLII 81 (SCC), [1960] S.C.R. 80.

Nasib S. Mander and Wellington Insurance Company, September 24, 1993, OIC File No. A-002057 (Palmer).

Gordon McAllister and Dominion of Canada General Insurance Co., December 3, 1992, OIC File No. A-000926 (Rotter).

McIndoe v. Insurance Corp. of British Columbia (1990), 1990 CanLII 1801 (BC SC), 45 C.C.L.I. 68, [1990] I.L.R. 1-2612 (B.C.S.C).

Stevenson v. Reliance Petroleum, 1956 CanLII 27 (SCC), [1956] S.C.R. 936.

Wu v. Malamas et al. (1985), 1985 CanLII 235 (BC CA), 67 B.C.L.R. 105 (B.C.C.A.).

Re the "dependant" issue

Lucy Beiler and Alpina Insurance Company Limited, February 22, 1994, OIC File No. A-003051; Supplementary decision, dated August 9, 1994 (Sampliner).

Fitzsimonds v. Royal Insurance Co. of Canada (1984), 1984 ABCA 7, 7 D.L.R. (4th) 406, 4 C.C.L.I. 214 (Alta. CA).

Michael Ridgley and Zurich Insurance Company, April 13, 1994, OIC File No. A-004083 (Rotter).

Stephen Salmon and Toronto Transit Commission (Markel Insurance), June 29, 1992, OIC Appeal File No. P-000235 (Richardson).

Scrimshaw v. Constitution Insurance Co. of Canada (1979), 1979 CanLII 2109 (ON HCJ), 26 O.R. (2d) 371 (County Court).

Seed et al. v. Delhey (1989), 1989 CanLII 4181 (ON HCJ), 70 O.R. (2d) 692 (H.C.J.).

Smith et al. v. Insurance Corporation of British Columbia (1980), 1980 CanLII 584 (BC SC), 21 B.C.L.R. 317 (B.C.S.C.).

Vasey et al. v. Economical Mutual Insurance Co. (1986), 1986 CanLII 2558 (ON HCJ), 54 O.R. (2d) 692, aff'd 1987 CanLII 4279 (ON HCJ), 60 O.R. (2d) 64.

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 1j 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2See McIndoe v. Insurance Corp. of British Columbia (1990), 1990 CanLII 1801 (BC SC), 45 C.C.L.I. 68, [1990] I.L.R. 1-2612 (B.C.S.C.), and Amos v. Insurance Corp. of British Columbia (1993), 1993 CanLII 2787 (BC SC), 13 C.C.L.I. (2d) 274 (B.C.S.C.).
3. 3I have referred to the plaintiff as "Mr. McIndoe", although it is not clear from the decision whether the plaintiff was male or female.
4. 4Upheld on appeal - Amos v. Insurance Corp. of British Columbia (1994), 1994 CanLII 2442 (BC CA), 21 C.C.L.I. (2d) 242 (B.C.C.A).