Neutral Citation: 1997 ONICDRG 51

Appeal P95-00003

Appellant

and

Respondent

Before:

David R. Draper, Director's Delegate

Counsel:

Douglas M. Bryce (for Timothy J. Hanlon)

Brian McCall (for Guarantee Company of North America)

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 October 30, 1995, is confirmed.
Timothy J. Hanlon is entitled to his reasonable appeal expenses, payable by Guarantee Company of North America.

March 18, 1997

David R. Draper

Director's Delegate

Date

This is an appeal by Timothy Hanlon from an arbitration decision, dated October 30, 1995, concluding that he was not injured as a result of an "accident" as defined in Ontario Regulation 672, the Statutory Accident Benefits Schedule - Accidents Before January 1, 1994 ("the Schedule").

There is no quarrel with the arbitrator's description of the events leading to Mr. Hanlon's claim for accident benefits:

Around 9:00 p.m. on Friday, April 16, 1993, Timothy Hanlon was returning home from McMaster University where he had just finished writing his final examination in engineering physics. He was driving his pick-up truck on Highway 2 between Brantford and Hamilton. At the relevant location, the highway is two lanes in each direction divided by a paved median two to three feet wide.

Michael Daly was travelling in his pick-up truck in the same direction, behind Mr. Hanlon. Mr. Daly claims that Mr. Hanlon would not let him pass. Mr. Hanlon claims that he could not get out of Mr. Daly's way. After some jockeying for position and flashing of high beams, Mr. Daly attempted to pass Mr. Hanlon by driving on the median. There was a collision between the front left corner of Mr. Hanlon's truck and the right rear corner of Mr. Daly's truck. Mr. Hanlon's side mirror was damaged and his fender was dented. Mr. Daly's right rear tire exploded. Mr. Daly made two complete turns on the highway. For the purpose of this decision it is unnecessary for me to determine who bears the greater blame in this accident. I find that each driver used his vehicle to frustrate and intimidate the other.

Mr. Daly attempted to flee the scene by driving with the flat tire to the first exit at Madden Road. Mr. Hanlon pulled onto the shoulder where he stopped to examine his truck. He then followed Mr. Daly onto Madden Road.

He drove up to within 15 feet of Mr. Daly's vehicle to a point where he could see the licence number. He saw Mr. Daly inspecting his flat tire and, satisfied that Mr. Daly was not a big man, got out of his truck. The two started shouting at each other. Mr. Daly was holding a portable cellular telephone which he intended to use to call an automobile association if he could not change the tire. I accept Mr. Hanlon's testimony that Mr. Daly crossed the 15 feet between the vehicles. Mr. Daly swung at Mr. Hanlon with the telephone clenched in his fist and missed. His second swing hit Mr. Hanlon in the side of the head and face with the telephone. Mr. Hanlon caught hold of Mr. Daly's arms before he could deliver another blow and he did not release him until Mr. Daly calmed down. Mr. Hanlon did not strike Mr. Daly. I find that at no time did Mr. Hanlon want to physically fight with Mr. Daly and that he did not expect the blow to the face.

Mr. Hanlon retreated to his vehicle where Mr. Daly tapped on his window and pleaded with him not to lay charges.

The assault was investigated by OPP Officer Gregson. Officer Gregson said that Mr. Daly was so angry at the scene of the assault that he was unable to change his tire. Officer Gregson had to show Mr. Daly how to operate the jack.

Mr. Daly pleaded guilty to a charge of common assault.

[Decision, pages 2-4]

Guarantee Company of North America ("Guarantee") refused to pay accident benefits to Mr. Hanlon on the basis that he was not injured as a result of an "accident" as defined in section 2 of the Schedule. Mr. Hanlon disagreed.

The arbitrator concluded that Mr. Hanlon was not injured as a result of an "accident" and, therefore, was not entitled to accident benefits from Guarantee. In his appeal, Mr. Hanlon claims that the arbitrator erred in reaching this conclusion.

A. The definition of "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 . . .

The arbitrator referred to sections of the Insurance Act that use the phrase "arising directly or indirectly from the use or operation" of an automobile. Based on his view that the Act and Schedule were meant to be complementary, the arbitrator held that the Schedule should be interpreted using the broader language of the Act. He concluded, however, that Mr. Hanlon did not suffer injuries "arising directly or indirectly from the use or operation of an automobile."

The Ontario Court of Appeal recently considered the interpretation of "accident" in the Schedule, concluding that the arbitrator's approach was wrong (Alchimowicz v. Continental Insurance Company of Canada, unreported decision released September 4, 1996 (Court file C23058)). In its endorsement, the Court stated:

The legislation, for whatever reasons, set one test for exclusion of actions and explicitly left the determination of no-fault benefits to be determined by regulation in the schedule. If there is a difference, and there is in the words, it is authorized.¹

Therefore, "accident" must be interpreted according to the definition in the Schedule - "an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury."

B. Was this an "accident?"

Mr. Hanlon claims that the collision between the two pick-up trucks was an incident involving the use or operation of an automobile. That much seems clear. He concedes, however, that he was not injured in the collision. He was injured when Mr. Daly struck him with the cellular phone.

I accept, and Guarantee did not argue otherwise, that there is some relationship between the incident and Mr. Hanlon's injuries. Mr. Daly would not have assaulted Mr. Hanlon if there had not been a collision, or at least a driving incident of some sort. Both men responded to the collision by acting in a way that culminated in the assault. In this sense, there is a nexus between the use or operation of an automobile and Mr. Hanlon's injuries. The question is whether the collision caused his injuries directly or indirectly.

Mr. Hanlon did not argue that this was all one "incident," involving the collision and the subsequent events. In my view, that was a sensible decision. The definition of "insured person" in section 2 of the Schedule depends on whether the person was an occupant of an automobile at the time of the accident. This suggests that the "incident" cannot be stretched in time to any great extent.

While the particular facts of this case are somewhat unusual, driving disputes are not. It would be a rare driver who has not had the experience of another driver expressing anger at his or her driving, whether justified or not. Unfortunately, some drivers respond violently. Despite the broad interpretation generally given to insurance coverage, however, the cases fall short of establishing that automobile insurance covers situations where the only involvement of the automobile is to provoke an assault.

1. "Arising from the ownership, use or operation of an automobile"

Much of the litigation in this area has involved the interpretation of insurance contracts. Typically, the provisions being considered include or exclude liability for "loss or damage arising from the ownership, use or operation of an automobile," or similar language. The courts developed a two-part test based on two decisions of the Supreme Court of Canada:

The purpose test from Stevenson v. Reliance Petroleum Ltd., [1956] 1 S.C.R. 936: the accident must result "from the ordinary and well-known activities to which automobiles are put"; and
The chain of causation test from Law, Union & Rock Insurance Co. v. Moore’s Taxi Ltd., 1959 CanLII 81 (SCC), [1960] S.C.R. 80, 22 D.L.R. (2d) 264: it must be possible to "trace a continuous chain of causation unbroken by the interposition of a new act of negligent use and operation of a motor vehicle on the one hand and the injuries sustained by the claimant on the other."

The Supreme Court of Canada recently revisited this issue in Amos v. Insurance Corp. of British Columbia (1995) 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618. In that case, Mr. Amos was shot while trying to drive away from a group of men who blocked his way and shattered the window on the driver’s side of his van. The question was whether the Insurance Corporation of British Columbia was required to pay Mr. Amos first-party benefits under section 79 of the regulations, which stated in part:

(1) . . . the corporation shall pay benefits to an insured in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle . . .

The Supreme Court found a legislative intent to broaden coverage by adding the words "ownership" and "use." However, it found no indication that the legislature meant to modify previous judicial interpretation of the phrase, "arises out of the ownership, use or operation of a vehicle." After stating that the section "must not be stretched beyond its plain and ordinary meaning" or "given a technical construction that defeats the object and insuring intent of the legislation," the Court sets out a "two-part test to be applied to interpreting this section":

Did the accident result from the ordinary and well-known activities to which automobiles are put?
Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant’s injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?

In its reasons, the Supreme Court specifically states that this test "summarizes the case law" and "encompasses both the 'purpose' and 'causation' tests posited in the jurisprudence." (p.624) Applying the newly formulated test to the facts of the case, the Court concluded that Mr. Amos' injuries were caused by an accident arising out of the ownership, use or operation of his van. Consequently, he was entitled to benefits from the Insurance Corporation of British Columbia.

The Supreme Court makes it clear that "arising from" is broader than "caused by." Proximate cause is not required to meet the "arising from" test, nor must the injuries arise from the negligent use or operation of the automobile. The liability for the injury can arise from a tortious act other than the negligent use of a motor vehicle.² However, there still must be "some nexus or causal relationship" (the Court's restatement of the chain of causation test). Although the Schedule uses "causes, directly or indirectly," rather than "arising from," the retention of the causation test in the second part of the Amos test makes the analysis relevant to this appeal.

My review of the Amos decision was helped by the analysis of Mr. Justice Macdonald in Royal Insurance Co. of Canada v. Guardian Insurance Co. of Canada (1995), 1995 CanLII 7228 (ON CTGD), 26 O.R. (3d) 290. I agree with his view that the Supreme Court's assessment of the factual situation in Amos is critical to the result. While the trial judge found no evidence that Mr. Amos' assailants were attempting to hijack his van, the Supreme Court stated that "it is always open to the courts to draw reasonable inferences regarding causation from the facts."³

Instead of viewing Mr. Amos as the unlucky victim of a random robbery, the Court focussed on the relationship between his continuing use of the van to resist his assailants and the firing of the gun. In its summary of the facts, the Court says that when confronted, Mr. Amos "locked the doors on both sides of the van and kept it moving slowly ahead."⁴ Even after he was shot, he kept the van moving by using both hands to push down on his right leg and depress the accelerator. The Court characterizes Mr. Amos' injuries as occurring "while escaping."⁵ Later in the decision, the Court refers to "the assailants failed attempt to gain entry to the vehicle."⁶As Mr. Justice Macdonald describes the facts cited by the Supreme Court, "the assailants efforts to gain entry to the vehicle and the appellant’s [Mr. Amos] efforts to keep the vehicle moving amounted to a contest for control."⁷

It was out of this contest for control of the van that the gun was fired. Whether it was fired intentionally or accidentally, the Supreme Court held that it was an accident from Mr. Amos' perspective. The Court concluded that this accident (the gun being fired) arose out of the ownership, use or operation of the van and caused Mr. Amos' injuries. In addition, the Court found no "intervening act, independent of the ownership, use or operation of the vehicle which broke the chain of causation."⁸

I agree with Mr. Justice Macdonald's analysis and description of the crux of the Amos decision:

In my respectful opinion, the Supreme Court's statement that "the shooting appears to have been the direct result of the assailant's failed attempt to gain entry to the appellant's van" was a determination that the gunman's firing of the shot was the " accident" for coverage purposes, the "direct result" was compliance with the phrase "arising out of" and "the assailants' failed attempt to gain entry to the appellant's van" was compliance with the "ownership, use or operation of the vehicle" criterion of the coverage.

In its reasons, the Supreme Court refersMcIndoe v. I.C.B.C. (1990), 45 C.C.L.I. 69 (S.C.B.C.) as an "analogous example of the application of the causal connection test."⁹ In my view, this underscores the Court's focus on the nexus between the continuing use or operation of the vehicle and the accident.

Mr. McIndoe was a passenger in a vehicle that was being pursued by police. When the terrain became rough, the police officer left his cruiser and pursued the vehicle on foot. While chasing the moving vehicle on foot, he drew his gun and it accidentally discharged, hitting and injuring Mr. McIndoe. As in Amos, the accident (the discharge of the gun) resulted from the ongoing use or operation of the vehicle as a means of escape. The trial judge held that while the discharge of the gun was the most proximate cause of Mr. McIndoe's injury, the negligent use or operation of the automobile was a "contributing cause." He concluded that this was a sufficient connection to meet the "arises out of" test.

The analysis in Amos is broad, but not without limits. The Supreme Court notes that the situation in Amos was not one where the vehicle was the mere situs of the accident, or where there was some intervening act between the ownership, use or operation of the vehicle and the injuries.¹⁰ It cites three decisions that "illustrate the application of the 'causation principle'," where it was held that the necessary connection did not exist.¹¹ The most relevant of these cases is Johnstone v. Lee, [1980] I.L.R. ¶ 1-706, 1979 CanLII 732 (BC SC), 17, B.C.L.R. 324 (S.C.), with facts quite similar to this appeal.

In Johnstone v. Lee, Mr. Lee was riding a motorcycle with a passenger sitting behind him. As he pulled away from a stoplight, his motorcycle was hit from behind by a car driven by Mr. Johnstone. The judge found Mr. Johnstone completely responsible for the accident. As a result of the collision, Mr. Lee and his passenger were thrown onto the road. After checking the condition of his passenger and turning off his motorcycle, Mr. Lee walked about 15 to 20 yards to a group of men standing around a car he assumed was the one that hit him. He identified Mr. Johnstone as the driver and after a short verbal exchange, Mr. Lee punched Mr. Johnstone on the chin, knocking him backwards onto the pavement. Mr. Johnstone's skull was cracked, leaving him almost totally blind, with no hope of recovery.

Mr. Johnstone sued Mr. Lee for damages. Mr. Lee claimed indemnity against the Insurance Corporation of British Columbia on the basis that he faced liability "arising out of the ownership, use or operation by the insured of an insured motor-vehicle." Mr. Johnstone also claimed no-fault benefits because his injuries were "caused by an accident . . . arising from the use or operation of a motor vehicle."

As in Mr. Hanlon's case, no one was injured in the collision, but it provoked the subsequent confrontation, resulting in Mr. Johnstone's injuries. There is no suggestion that Mr. Johnstone would have been injured if there had not been a driving incident. Mr. Justice Toy concluded, however, that Mr. Lee was not entitled to indemnification. In doing so, he rejected the argument that Mr. Lee acted as an automaton, resulting in an unbroken chain of causation starting with the accident and ending with the assault. He found that Mr. Lee "performed many deliberate and thoughtful acts before turning his attention to obtaining particulars of the accident from the driver of the other motor vehicle." He then stated his conclusion that the "blow or blows thrown by the defendant Lee at the plaintiff were a new and independent cause of the plaintiff's injuries."

With respect to Mr. Johnstone's claim for no-fault benefits, Mr. Justice Toy concluded that his injuries resulted from an assault, and did not arise out of the ownership, use or operation of a motor vehicle. The fact that the collision precipitated or motivated the confrontation was not a sufficient connection.

As noted by the arbitrator here, the Supreme Court in Amos emphasized that in two other decisions where the connection between the injuries and the ownership, use or operation of the vehicle was found to be insufficient to meet the "arising out of" test, the event causing the injuries occurred after the use or operation of the vehicle ended. In Kangas v. Aetna Casualty & Surety Co., 235 N.W.2d 42 (1975), the altercation from which the injuries flowed took place after the passenger got out of the stopped vehicle and assaulted a pedestrian."¹² In Law, Union & Rock Insurance Co. v. Moore's Taxi Ltd., the Supreme Court of Canada decision establishing the chain of causation test, the insured's liability arose from a breach of duty that occurred after the vehicle was stopped, when the child left his taxi and crossed the street unescorted.

Although the Supreme Court found a general trend in the United States toward a fairly narrow application of the causation principle, it pointed to the "more generous causation test" adopted by the majority of the Supreme Court of Florida in Novak v. Government Employees Insurance Co., 424 So. 2d 178 (Fla. 1983); affirmed 453 So. 2d 1116 (Fla. 1984). In that case, Ms. Novak was in her car and about to drive away from her residence when she was approached by a stranger asking for a ride. She refused. The stranger then shot her, pulled her from her car, got in, and drove away. He was apprehended by the police and charged, but was found not guilty by reason of insanity.

The question before the Supreme Court of Florida was whether Ms. Novak's death was a "loss sustained . . . as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle." By a four to three majority, the Court upheld the lower court’s conclusion that it was. The majority held that obtaining a ride in or possession of the vehicle was what motivated the man to approach Ms. Novak’s car and attack her when she did not allow him in. This, in their view, was a sufficient connection between the ownership or use of the vehicle and Ms. Novak's death.

The similarities between Amos and Novak are important. In both cases, the driver was operating a vehicle normally when confronted by someone attempting to gain access to the vehicle. When they resisted, they were assaulted. In my respectful opinion, both courts found that the driver was injured as a result of resisting the intrusion on their continuing use or operation of the vehicle, and concluded that this was a sufficient connection to meet the "arising out of" test. This is different from a situation where the only role of the vehicle is to provoke an assault that occurs after the incident involving the use or operation of the vehicle is over, particularly where the vehicle plays no part in the assault and does not aggravate the injuries in any way.

Mr. Hanlon referred to the recent decision in Beger v. MacAstocker Estates (Public Trustee of), 1996 CanLII 10516 (AB QB), [1996] A.J. No. 985, as the first Canadian authority, other than perhaps the arbitration decision in Overley and Co-operators General Insurance Company, (April 3, 1996, OIC A-015623), also before me on appeal, to hold that an assault inflicted on someone outside a motor vehicle arose from the use or operation of an automobile.

The facts in Beger are particularly disturbing. Mr. MacAstocker purposely drove an uninsured car into the rear end of Ms. Beger's car, forcing her off the road and into a ditch. He then got out of his car, approached Ms. Beger's vehicle and motioned for her to get out. After she managed to pull herself out, she moved toward him, expecting him to help. Instead, he punched her, swung her about by the hair and pushed and pulled her in an attempt to force her into his car. He eventually gave up and flung Ms. Beger to the ground, where she lay pretending to be dead. He then went to Ms. Beger's car, stole her purse and drove away in his own car. At some time later, Mr. MacAstocker committed suicide after being involved in a notorious assault on a young girl resulting in her death.

Ms. Beger claimed coverage under her uninsured motorist endorsement for her damages "arising out of the use or operation of an automobile." Although the trial judge found coverage, I am not persuaded that the decision materially helps Mr. Hanlon's position. The judge did not rely on the fact that there was some connection between the use or operation of an automobile and Ms. Beger's injuries, or that the collision between the two vehicles triggered the subsequent events. Instead, he found that the use or operation of a vehicle was integral to the entire sequence of events. First, Ms. Beger was injured in the initial collision and these injuries overlapped with the ones caused by the subsequent assault, particularly her psychological injuries. Second, Mr. MacAstocker set out to drive Ms. Beger's vehicle off the road and force her into his car. It was all part of a single plan. Ms. Beger's injuries resulted from this scheme, partly from the original collision and partly from Mr. MacAstocker's unsuccessful attempt to force her into his car. On this basis, the judge concluded that her injuries arose out of the use or operation of an automobile.

In my view, the situation is quite different where the use or operation of the automobile ends before the event causing the injury, and the only contribution of the automobile is to provoke the assailant, or as stated in a post-Novak decision of the District Court of Appeal of Florida, to create "an atmosphere of hostility between the parties."¹³ As I read the various decisions cited, the courts have consistently looked for some connection between the ongoing use of the vehicle and the event causing the injury¹⁴, or for some involvement of the vehicle in the person's injuries.¹⁵ Where the use of the vehicle has ended and it does not contribute to the person's injuries, the courts have not found the necessary connection.¹⁶ It is not clear to me, therefore, that Mr. Hanlon meets the Amos test.

2. "Causes, directly or indirectly"

Although previous jurisprudence is important, the Schedule uses different language. "Accident" is defined as "an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury . . ." While the courts have consistently held that "arises from" or "arises out of" is broader than "caused by," the question is the impact of the inclusion of "indirectly" in the definition. The other important difference from the language considered in many of the decisions is that the definition of "accident" in the Schedule does not include incidents involving the ownership of the automobile.

Before 1990, Ontario legislation used "arising out of to define the scope of no-fault benefit coverage. Schedule "C" to the Insurance Act, the predecessor to the Schedule, provided benefits to an insured person "who sustains bodily injury or death by an accident arising out of the use or operation of an automobile." However, the scope of coverage was limited by the definition of "insured person" as including only non-occupants who were "struck by" the automobile or, in the case of the named insured and his or her family, "struck by" any automobile.

The traditional "arising from" language was used in the Insurance Act, extended by the addition of "indirectly." The limitation on the right to sue introduced in section 266 of the Act covers loss or damage "arising directly or indirectly from the use or operation . . . of an automobile." However, different language was chosen for the Schedule. "Accident" was defined as an "incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury."

Mr. Hanlon claims that the addition of "indirectly" in the Schedule makes the definition broader than that considered in the earlier cases, including Amos. In his supplementary submissions, he argues as follows:

Counsel for Guarantee remains convinced, as does arbitrator Renahan, that the new and independent acts of getting out of the respective vehicles and crossing the fifteen feet, are sufficient to break the chain of causation. If that were the appropriate test, I would tend to agree, but there does not have to be an unbroken line of causation here. There must only be a sufficient nexus in time, space and motivation between the incident and the injury. There is such a nexus and it is entirely appropriate to find that Mr. Hanlon's injuries are as a result of an accident under the SABS.

I am unable to read the phrase, "causes, directly or indirectly," that broadly. In my view, the phrase demands a causal relationship between the incident involving the use or operation of an automobile and the person's injuries, a narrower focus than an accident arising from the ownership, use or operation of a vehicle. Although the addition of "indirectly" may take the analysis beyond proximate cause, a causal relationship still must be found. I agree with following analysis of Director's Delegate Naylor in Vineski and Federation Insurance Company of Canada, (October 18, 1996, OIC P96-000034):¹⁷

I conclude that the phrase "causes, directly or indirectly" takes us somewhat beyond a strict analysis of the doctrine of proximate cause, as suggested in Coxe and The Royal Trust. It allows for consideration of a more remote causal link. However, the link cannot be so remote as to deprive the word "causes" of meaning. As I stated in Ekunah and Simcoe & Erie General Insurance Company, (April 22, 1996, OIC P-003550), it is not enough to show that an automobile was merely the location of the injury, that the injured person was occupying it at the time or that an automobile was involved in some peripheral or incidental way. The use or operation of an automobile must have caused the injuries, whether directly or indirectly. To determine this, paraphrasing Voisin, the role of the automobile in the whole scenario must be considered. [p. 14]

In Vineski, Jonathan Vineski was riding his bike when he heard the sound of a car starting. He looked to his right to see where the car was and rode into a pothole. The front wheel of his bike twisted, snapping the bolts and causing him to fall to the road. The issue was whether he was entitled to accident benefits under the Schedule. Director's Delegate Naylor upheld the arbitrator's decision that this was an "accident" within the meaning of the Schedule; it was an incident in which the use or operation of an automobile caused his injuries, directly or indirectly.

I agree with Guarantee's submission that this case should be distinguished. Jonathan Vineski reacted instantly to the use or operation of the automobile, triggering the incident in which he was injured. As pointed out by the arbitrator in this case, the use or operation of any automobile ceased well before the time of Mr. Hanlon's injury, and both Mr. Hanlon and Mr. Daly performed a number of deliberate acts resulting in the assault.

In Amos, the Supreme Court found automobile insurance coverage where the ownership, use or operation of the vehicle was not the proximate cause of the injury. I find it difficult to imagine a test broader than the Amos test that would retain any meaningful limits on coverage. In its recent decision in Alchimowicz, the Ontario Court of Appeal refused to accept the expansive interpretation urged by Mr. Alchimowicz, stating that it "must be remembered that this is automobile legislation." (p.4)

As I understand the facts in Alchimowicz, Mr. Alchimowicz went drinking with a group of friends and then was driven to a beach where he dove off a dock into shallow water, seriously injuring himself. He argued that this was an incident in which the use or operation of an automobile caused his injuries, directly or indirectly. The Court concluded as follows:

On that analysis, the appellant is left with one arm of the argument; that is, that "indirect" is broader than "direct". With this we agree. However, we do not agree that when a drunken person is driven to a beach site, leaves the car, and some 25 minutes later dives off a dock to sustain serious injuries, that this could be construed on any subtle variation of the facts at trial as an incident indirectly caused by the use or operation of a motor vehicle. As liberally as one may choose to interpret legislation which provides benefits to persons who are injured, it must be remembered that this is automobile legislation. [p.3]

I take this to mean that at some point, the causal relationship, or nexus, between the use or operation of the automobile and the accident is too incidental or remote to be covered by automobile insurance. Given the extreme facts presented in Alchimowicz, the Court did not draw the line too carefully. It simply said that wherever the line is, this case is on the other side.

In Mr. Hanlon's case, the only role played by the use or operation of an automobile was to create an atmosphere of hostility between him and Mr. Daly. This was not a situation where someone lashed out as an immediate reaction to the driving incident. Mr. Hanlon and Mr. Daly both took a number of intentional actions for which they bear responsibility. While it is possible to say that the driving incident provoked or motivated the assault, I am not persuaded that there is a causal relationship, even an indirect one, between the use or operation of an automobile and Mr. Hanlon's injuries.

"Cause" has an instrumental aspect that is lacking here. The incident involving the use or operation of an automobile ended with no one being injured. No further consequences were inevitable or linked to any ongoing use or operation of an automobile. Sometime later, in a location removed from the "incident," there was a verbal confrontation between the two men outside their vehicles. At that point, Mr. Daly attacked Mr. Hanlon. No automobile was the target of the attack, was used in the attack or contributed to Mr. Hanlon's injuries. I conclude that, like in Alchimowicz, the connection between the use or operation of the automobile and the injury is not sufficient to be covered by automobile insurance.

IV. AUTOMATISM

At the arbitration, Mr. Hanlon argued that Mr. Daly assaulted him while in an autonomic state resulting from the events of that night, starting with the collision and continuing until after Mr. Daly struck him. The arbitrator found that Mr. Daly was not an automaton:

I find that Mr. Daly was not an automaton. He performed deliberate and thoughtful acts before assaulting Mr. Hanlon. He tried to flee the scene. Having found what he thought was a place of safety, he got out of his vehicle with a portable cellular telephone intending to telephone the automobile association if he could not change his tire. Mr. Hanlon arrived and got out of his vehicle. Mr. Hanlon was satisfied that there was no risk that Mr. Daly might injure him. The two shouted at each other and then Mr. Daly struck Mr. Hanlon with the telephone. [Decision, p.12]

Mr. Hanlon submits that the arbitrator erred in reaching this conclusion. He concedes that there was no medical evidence that Mr. Daly was in an autonomic state, but argues that the arbitrator could have drawn that conclusion from other evidence. In particular, he points to the police officer’s testimony that Mr. Daly was so angry that he was unable to change his tire.

Even assuming that medical evidence is not required to establish automatism, I find no reason to interfere with the arbitrator’s factual finding that Mr. Daly "performed deliberate and thoughtful acts before assaulting Mr. Hanlon." In my view, there was ample evidence to support this finding and little evidence to support the opposite.

The police officer arrived at the scene sometime after the assault. By that time, Mr. Daly was concerned about Mr. Hanlon laying criminal charges against him. The fact that the officer found him angry and unable to change his tire provides little basis for finding that he was in an autonomic state at the time of the assault. Without any supportive medical evidence, and given Mr. Daly’s guilty plea on the assault charge, the arbitrator quite reasonably concluded that there was insufficient evidence to establish that Mr. Daly acted as an automaton.

V. EXPENSES

Guardian argued that Mr. Hanlon should receive his appeal expenses only if his appeal is successful. In Guardian's submission, it should not be required to pay for his unsuccessful attempt to extent the scope of automobile insurance coverage.

Previous appeal decisions have established that expenses should be awarded in a way that helps keep the dispute resolution process accessible, while not rewarding inappropriate uses. Unsuccessful appellants have been awarded expenses if their appeal raises novel and important issues. I am convinced that this is such a case. Mr. Hanlon raised important questions about the scope of accident benefits. His counsel was helpful, particularly in addressing new decisions as they became available.