Ontario Insurance Commission
Commission des assurances de l’Ontario
Neutral Citation: 1997 ONICDRG 219
Appeal P-002057
OFFICE OF THE DIRECTOR OF ARBITRATIONS
Wellington Insurance Company
Appellant
and
Nasib S. Mander
Respondent
Before:
Elisabeth Sachs
Counsel:
Chris T. Blom (for Wellington Insurance Company)
Alan S. Price (for Nasib S. Mander)
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal is dismissed and the arbitration order dated September 24, 1993, is confirmed.
Mr. Mander is entitled to his reasonable appeal expenses.
December 30, 1997
Elisabeth Sachs Director of Arbitrations
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
Wellington Insurance Company ("Wellington") appeals from an arbitrator's decision determining that Nasib S. Mander suffered psychological injuries as a result of an "accident" as defined by section 2 of O. Reg. 672, Statutory accident Benefits Schedule - Accidents Before January 1, 1994, the (Schedule).
II. BACKGROUND
The facts are not in dispute. On the morning of October 30, 1991, Mr. Mander was driving his limousine to Pearson International Airport when his passenger pulled out a gun and ordered him to drive north into the countryside. After about 45 minutes, Mr. Mander was told to stop the vehicle, leave his money, get out and walk quickly away. The gunman then got behind the wheel and drove off in the limousine.
Mr. Mander was not physically injured in the incident, but required medical assistance and psychological counselling to treat anxiety before he could go back to his occupation. He resumed driving his limousine seven weeks later. He claimed weekly income benefits for the time he was off work. Wellington refused to pay these benefits on the basis that the facts did not support an "accident" had taken place within the meaning of the Schedule. The relevant portion of section 2 of the Schedule reads:
2.2.1 "accident" means an incident in which the use or operation of an automobile causes. directly or indirectly, physical, psychological or mental injury ...
The arbitrator found that as Mr. Mander was forced to operate his vehicle at gunpoint, the use and operation of his vehicle had "at least" indirectly caused his psychological trauma. This injury was indirectly caused by an incident involving the ordinary and customary operation of his vehicle, thus there was an "accident" within the meaning of the Schedule.
Wellington appeals the decision on the basis that at its highest, the only connection between Mr. Mander's psychological injury and the automobile was that a criminal offence took place partly inside the vehicle. It argued that the incident neither involved the use of the vehicle (the ordinary use to which the vehicle was put: the "purpose" test) nor was its use the cause of, or connected to, Mr. Mander's injuries (the "chain of causation" test).
Wellington submits two elements are necessary to find an accident occurred leading to recovery under the Schedule. First, the incident must involve the use or operation the vehicle, and second, that use or operation must cause the injury, directly or indirectly. Wellington says neither element was present in this case. Wellington also contends the arbitrator erred in applying the term "indirect" to the use of the vehicle, rather than to causation, thus confusing the test for recovery of benefits. It claims the injury was not due to any use of the vehicle, but the presence of a gun, which threatened injury. Finally, Wellington submits the arbitrator compounds her error by stating that the length of time Mr. Mander was compelled to drive was important in reaching her decision. Wellington says it was not the use of the vehicle causing Mr. Mander's injury, but rather the criminal act taking place in it.
III. ANALYSIS AND FINDINGS
The submissions on appeal were made before the release of the Supreme Court of Canada decision, Amos v. Insurance Corp. of British Columbia (1995), 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618. Wellington's submission on whether the incident here involved the "use or operation" of a vehicle included reliance on the British Columbia Court of Appeal decision in Amos, as well as other cases discussed in the Supreme Court decision, reversing the appeal court's conclusion1. Wellington also referred to cases in which a criminal act took place involving an automobile, but recovery was denied under a motor vehicle policy.2 It is noteworthy that these cases did not deal with language similar to the definition of "accident" found in the Schedule (causes.... indirectly) but the phrases "arising from" or "arising out of, which are broader in scope.3
In Amos, the Supreme Court confirmed and consolidated a two-part test to determine whether injuries arose out of or from the use or operation of an automobile. First, it invoked the "purpose" test, (as in Stevenson) which considers whether the accident results from the ordinary and well-known activities to which motor vehicles are put. Second, the court referred to the "chain of causation" test, (established in Moore's Taxxi determining if there is a continuous chain of causation, unbroken by an intervening act between the injury and the ownership, use or operation of the vehicle. Simply being present in a vehicle is not enough to satisfy the "chain of causation" test, nor can the connection between the injury and the vehicle's use or operation be only incidental. The court held that some causal connection between the injuries and the use or operation of the vehicle was required, although not necessarily a direct or proximate relationship. The plaintiff's claim was allowed even though his injuries were directly caused by a shot fired through his vehicle's window as he was resisting entry to it by assailants and was attempting to flee.
The language of the Schedule ("causes...indirectly") allows for a more remote causal connection, however a sufficient connection must still be established between the injury and the use or operation of the vehicle. As in Amos, Mr. Mander was faced with an interference in the use or operation of his vehicle by a gunman. This is not the same as a situation in which the only role of the vehicle is to provoke a criminal act occurring after an incident involving the use or operation of the vehicle has taken place.4
In these cases, the facts are key to establishing the necessary connection. It is not contested that a gun pointed at Mr. Mander's head caused him psychological injury. The question is whether the fact that he was driving while that took place is sufficient to say the use of the vehicle indirectly caused the injury. Mr. Mander was engaged in his occupation of driving a passenger to the airport and as a result of this use of his limousine, which continued after the passenger pulled a gun on him, he was injured. This satisfies the first part of the test: the injury and the use of the vehicle are connected. Mr. Mander was forced to operate his vehicle, which caused his psychological injuries. I see no distinction between this and the threat of forced entry and then an injury in Amos. The car played a pivotal role here in that Mr. Mander's passenger used a gun for the purpose of gaining control of the vehicle and its driver. Driving under compulsion aggravated the harm caused him by the criminal act and was intertwined with the struggle for control and use of the vehicle.
In my view, the arbitrator was right in applying the Schedule as she did, although it is not clear to me that the length of time Mr. Mander was compelled to drive is, as she stated, "crucial". I do not see that much turns on this aspect of the decision. The facts here established the requisite connection between Mr. Mander's injuries and use of his vehicle. Accordingly, the appeal is dismissed.
IV EXPENSES
Mr. Mander was successful in defending this appeal, and is entitled to his reasonable appeal expenses.
December 30, 1997
Elisabeth Sachs Director of Arbitrations
Date
Footnotes
- Amos v. Insurance Corp of British Columbia, [1993] I.L.R. 2345 (BCCA). The other cases included Stevenson v. Reliance Petroleum Ltd., 1956 CanLII 27 (SCC), [1956] S.C.R. 936 ( the "purpose" or "use" test) and Law, Union & Rock Insurance Co. Ltd. V. Moore's Taxi Ltd., 1959 CanLII 81 (SCC), [1960] S.C.R. 80 (the "chain of causation" test).
- See McAllister and Dominion of Canada General Insurance Company, (December 3, 1992, OIC A-000926) involving the murder of a parked motor home occupant and Storrie v. Newman (1982), 1982 CanLII 724 (BC SC), 139 D.L.R. (3d) 482 ( assaulted passenger jumping from a car).
- In Alchimowicz v. Continental Insurance Company of Canada (September 3, 1996), No. C23058 (Ont. C.A.) the court states the addition of the words "causes... indirectly" widens the recovery under the Schedule.
- For example, an assault after a party leaves their vehicle although the reason for doing so was anger over another's driving, as in Hanlon and Guarantee Company (March 18, 1997, OIC P95-00003).