Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 1998 ONFSCDRS 97

Appeal P98-00030

Appellant

and

Respondent

Before:

David R. Draper, Director's Delegate

Counsel:

William J. McCorriston (for Zurich Insurance Company)

Sean L.K. Daley (for Frank Lenti)

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is allowed and the arbitration order dated June 19, 1998 is rescinded. The following order is substituted:

Frank Lenti was not injured in an "accident" and, therefore, is not entitled to statutory accident benefits.

Frank Lenti is entitled to his reasonable appeal expenses, payable by Zurich Insurance Company.

December 18, 1998

David R. Draper

Director's Delegate

Date

This is an appeal by Zurich Insurance Company ("Zurich") from an arbitration decision dated June 19, 1998. Zurich submits that the arbitrator erred in concluding that Frank Lenti was injured in an "accident" within the meaning of the O. Reg. 776/93, as amended, the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996 ("the SABS-1994").

On August 24, 1995, Mr. Lenti was seriously injured when a bomb placed on the frame of his automobile directly underneath the driver's seat exploded. His insurer, Zurich, refused to pay accident benefits on the basis that this was not an "accident" as defined in section 1 of the SABS-1994, as follows:

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

Mr. Lenti applied for mediation in 1997, claiming income replacement benefits, attendant care benefits, and supplementary medical benefits. When the dispute was not resolved, he applied for arbitration. The parties agreed to schedule a preliminary hearing in May 1998 on the "accident" question, with the remaining issues deferred until March 1999.

At the preliminary hearing, Mr. Lenti and a constable from the York Regional Police testified. Because the police investigation was ongoing, the arbitrator did not name the officer in the decision and ordered that the documentary evidence introduced through this witness be sealed. Applying the analysis of the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia (1995), 1995 CanLII 66 (SCC), 3 S.C.R., 405, 127 D.L.R. (4th) 618, 31, C.C.L.I. (2d) 1, the arbitrator concluded this was an "accident" because Mr. Lenti was using his automobile in a normal manner when he was injured in a non-random assault in which the automobile became part of the instrument of his injuries. Zurich appeals, claiming that the arbitrator erred in making inferences unsupported by the evidence and in misinterpreting the scope of "accident."

The Dispute Resolution Practice Code precludes an appeal from a preliminary or interim order unless the Director or her delegate orders otherwise. Given the nature of the issue involved and the fact that the appeal could be completed in time for the resumption of the arbitration hearing, I allowed the appeal to proceed.

A. The Facts

The arbitrator found that on the morning of August 24, 1995, Mr. Lenti's automobile, a 1994 Ford Explorer, was parked in his driveway.¹ Mr. Lenti left his house and walked to the Explorer intending to move it closer to the house so he could wash it. He remembers sitting in the driver's seat, leaving the door ajar, and putting the key in the ignition, but not turning on the engine. He then remembers an explosion and everything going black. He passed out, but does not know for how long. He remembers crawling away from the vehicle and lying face down on shattered glass in the driveway. He was then taken by helicopter to a hospital where he underwent surgery.

Based on the evidence of the police officer, the arbitrator found that a person or persons unknown hid a plastic explosive device on the undercarriage of Mr. Lenti's Explorer directly below the driver's seat. It was not connected to the vehicle or detonated by anything Mr. Lenti did, but by some type of remote device. The arbitrator did not hear any evidence about the motive for the bombing, but found that someone² hid the device while the Explorer was parked in Mr. Lenti's driveway, waited and watched from a remote location and then detonated the bomb when Mr. Lenti got into the vehicle, intending to hurt or kill him.

Zurich objects to the arbitrator's finding that Mr. Lenti was the intended victim. It contends that without any evidence about motive, it is not clear what the bomber meant to do. He or she could have intended only to damage the Explorer or frighten someone. Even if the goal was to injure someone, Zurich argues that the evidence was insufficient to establish that Mr. Lenti was the target. In its submission, the location of the bomber could not be determined, making it impossible to conclude that he or she could have identified Mr. Lenti as the person getting into the Explorer.

Given the location of the bomb, the timing of the explosion and the absence of an alternative explanation, I conclude that the arbitrator was entitled to make the inferences he did. This incident involved a bomb placed under the driver's seat of Mr. Lenti's Explorer, parked in his driveway, and detonated as soon as he got into the vehicle by someone the expert witness believed must have been within visual range. There may have been other possible explanations, but the arbitrator chose the most likely one. In the circumstances of this case, involving an ongoing and largely confidential police investigation, I am not persuaded he should have demanded additional proof.

The arbitrator also considered the role the vehicle played in Mr. Lenti's injuries. He found that although the Explorer's motorized driver's seat may have shielded Mr. Lenti from the full impact of the explosion, parts of the seat mechanism exploded into his body. As a result, the nature, if not the seriousness, of his injuries was affected by the location of the bomb.

Zurich argues that the only evidence supporting the arbitrator's findings came from the police officer who did not see Mr. Lenti at the scene or during surgery. It argues, therefore, that he could not conclusively state whether the fragments became embedded as a result of the explosion or as Mr. Lenti lay in the driveway, or even whether the fragments came from Mr. Lenti's body.

I do not accept Zurich's position. The police officer was its witness. He testified during examination-in-chief that he went to the hospital and was given a bowl containing fragments he understood had been removed from Mr. Lenti during surgery. He repeated this on cross-examination. There is nothing in the evidence to suggest he was mistaken. If Zurich wanted to challenge the officer's evidence, it could have obtained the hospital records or a report from the surgeon, but did not. In the absence of any contrary evidence, I find no reason that the arbitrator could not rely on the police officer's testimony. Given other aspects of the officer's testimony about the explosion, including the fact that fragments were found embedded in Mr. Lenti's house, I also agree with the arbitrator's inference that the fragments in Mr. Lenti's body came from the explosion, not from lying in the driveway.

B. The Law

Zurich submits that the arbitrator erred in reading the Amos decision too broadly, particularly when the differences between the Ontario and British Columbia legislation are considered. Mr. Lenti responds that the arbitrator could have interpreted "accident" even more expansively. He claims it does not matter whether or not he was the intended victim. The critical factor, in his submission, is that the involvement of an automobile affected the nature and extent of the injuries he suffered.

The standard of review in this appeal is correctness. The Director of Arbitrations recently held that arbitrators are bound by appeal decisions interpreting legislation.³ Although not explicitly stated, this must mean that the standard of review on questions of interpretation is correctness. Applying this standard, I conclude that the arbitrator erred in interpreting the scope of "accident." For reasons that follow, I find that while Mr. Lenti used his Explorer in a normal manner, there is no meaningful causal connection, direct or indirect, between this use and his injuries. Rather, his injuries were caused by the intervening act of the bomber who used the Explorer as a convenient place to hide the bomb - not an ordinary use of an automobile.

This is a difficult area of law. It seems every jurisdiction has struggled with the scope of automobile insurance coverage in the context of its particular contractual language or legislative scheme. In Canada, there is a long history of court decisions dealing with this issue. Typically, the question has been whether the event was an accident covered by automobile insurance, or excluded from coverage under other insurance, such as a homeowner's policy, because it was an automobile accident.

The decisions deal with differently worded provisions, but generally involve a phrase like, "arising from the ownership, use or operation of the automobile." The legislation in force in Ontario in the 1980s included similar language. According to s.209 of the Insurance Act, R.S.O. 1980, c.218, as amended, a standard owner's motor vehicle liability policy provided coverage against liability imposed by law for loss or damage "arising from the ownership, use or operation of any such automobile . . . resulting from bodily injury to or the death of any person, and damage to property."

In interpreting this kind of "arising from" language, the courts developed a two-part test based on two decisions from 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., [1160] S.C.R. 80, 1959 CanLII 81 (SCC), 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 application of these tests led to an extremely broad interpretation of the coverage provided by automobile insurance, bringing in incidents well beyond collisions. Against this backdrop, provincial legislatures enacted legislation creating different automobile insurance systems involving various combinations of tort and "no-fault" and administered through public or private insurers.

The situation in British Columbia is of particular interest due to the Amos decision. As I understand it, since 1174, British Columbia has operated a compulsory automobile insurance scheme known as "Autoplan," administered by a Crown corporation - the Insurance Corporation of British Columbia ("I.C.B.C."). As part of the licencing process, every owner of a licenced motor vehicle must purchase basic Autoplan insurance from the I.C.B.C.⁴ The standard policy includes a number of different protections, including third party liability coverage and first part no-fault benefits.

The Amos case involved the scope of British Columbia’s no-fault coverage. The grim facts have become quite familiar. In August 1111, Mr. Amos, a resident of British Columbia, was in California attending a surveying course. One evening, he went to a bar where he met a woman who agreed to show him some good local restaurants. They left in his van and drove at least two or three miles into town. About 50 to 100 feet beyond a stop sign, Mr. Amos and his female passenger were confronted by three men blocking their way. When Mr. Amos tried to steer around them, a fourth man appeared and moved in front of the van. Mr. Amos braked to avoid hitting him, but did not stop completely. Two more men then emerged from the right side of the street and moved toward the passenger side of the van. With the van surrounded by the six men, Mr. Amos locked the doors and kept the van moving slowly forward. The assailants began pounding on the windows, shattering the driver's side window but not knocking it out. Another man then walked in front of the van and pointed a gun at Mr. Amos. As Mr. Amos tried to duck out of the line of fire, the man came to the driver's side and used his gun to clear the shattered glass from the window. At this point, Mr. Amos realized he had been wounded, although he did not hear any shots. It was later determined that at least two shots were fired, one lodging in the glove compartment and the other hitting Mr. Amos's spinal cord at the T8-T9 level. Mr. Amos managed to escape by keeping the van moving, using his arms to press down his right leg and steering with his torso. It is not known what happened to the passenger.

Mr. Amos applied for medical and other benefits under his standard I.C.B.C. policy. However, the I.C.B.C. took the position that his injuries were not covered under s.79(1) of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83, as amended:

(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 parties agreed at trial that Mr. Amos's injuries were caused by an accident. The issue was whether the accident arose out of the ownership, use or operation of a vehicle. Although the trial judge was clearly sympathetic to the claim, he concluded that Mr. Amos was not injured in an automobile accident, but was the innocent victim of an act of wanton criminal violence. Interestingly, he found no evidence that the assailants were attempting to hijack the van or that the van contributed to or aggravated Mr. Amos's injuries. The trial judge also rejected Mr. Amos's argument that the accident arose out of his reasonable steps to protect his ownership of the van, concluding instead that the van was merely the situs of the attack.

On appeal, the British Columbia Court of Appeal agreed with the trial judge that there was no connection between the ownership, use or operation of the van and the accident beyond a "but for," "fortuitous," or "incidental" relationship. Repeating the trial judge's conclusion, the Court of Appeal held that the van was simply the situs of the attack.

Mr. Amos then appealed to the Supreme Court of Canada. In a decision dated September 21, 1115, the Court allowed the appeal, concluding that this incident fit within the scope of the no-fault coverage established in s.71(1). This clearly is an important decision. However, Zurich raises difficult questions about how broadly the Amos decision should be read and the extent to which it applies to the differently-worded Ontario legislation.

1. "Arising from" versus "caused by"

The Supreme Court makes it clear in Amos that the "arising out of" wording of the legislation and its evolution were important to its analysis. Mr. Justice Major, writing for the Court, notes that s.71(1) was expanded to include "use" and "operation," showing the intention of the legislature to establish broader coverage by using language that "mirrors the wording found in many private policies of insurance." The Court then cites authority for the proposition that when common law terms and concepts are used in legislation, they are presumed to retain their common law meaning unless the legislature provides a different definition. It is in this context that the Court held that the traditional common law "purpose" and "chain of causation tests" developed in interpreting similar wording in insurance contracts applied to s.71(1).

In its conclusion, the Court again emphasizes the wording of s.71(1). It states that the words chosen by the legislature "are broad and should be interpreted to give meaning to the legislative intention that extends coverage where some connection is found between ownership, use or operation of a vehicle and the injuries sustained as a result of an accident."

The definition of "accident" in the SABS-1994 uses different language and has a different legislative history. In Ontario, limited accident benefits were originally provided through a schedule to the Insurance Act. According to Schedule C, in effect until June 1110, benefits were paid 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.

In 1990, Ontario's automobile insurance legislation was substantially amended. A new provision was added limiting the liability of "the owner of an automobile, the occupants of an automobile or any person present at the incident" in an action in Ontario "in respect of loss or damage arising directly or indirectly from the use or operation . . . of an automobile" [s.266]. Tort actions falling within the scope of this section were precluded unless the injured person died or sustained "permanent serious disfigurement" or "permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature."

In exchange for the limitation on the right to sue, no-fault coverage was expanded. Every automobile insurance policy was required to provide the benefits set out in O.Reg. 672/90, the No-Fault Benefits Schedule ("the Schedule")⁵ The Schedule provided substantially enhanced benefits for individuals injured in automobile accidents regardless of fault and whether or not they had their own automobile insurance. Coverage was extended well beyond the "struck by" wording of Schedule C. However, instead of adopting "arising from" as used in the Act, " accident" became a defined term, 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 any prosthesis, denture, prescription eyewear, hearing aid or other medical or dental device;

[emphasis added]

Ontario's legislation was amended again, with the amendments applying to accidents on or after January 1, 1994 ("Bill 164"). This is the version that applies here. Bill 164 introduced greater restrictions on the injured person's right to sue, entirely eliminating the right to sue for pecuniary losses. In exchange, the new regulation, the SABS-1994, provided more extensive accident benefits. However, the difference in wording between the Act and the regulation remained. The Act still limited liability in respect of "loss or damage from bodily injury or death arising directly or indirectly from the use or operation of the automobile . . . ," while the definition of "accident" in the SABS-1994, was substantially unchanged, although the words were rearranged:

[emphasis added]

The differences between the Act and the regulation (the Schedule or the SABS-1994) raised questions about their interaction. In at least two decisions, arbitrators held that the broader "arising from" wording of the Act prevailed over the narrower "caused by" wording of the regulation.⁶ The Ontario Court of Appeal specifically rejected this approach in Alchimowicz v. Continental Insurance Co. of Canada (1116) 1996 CanLII 1313 (ON CA), 37 C.C.L.I. (2d) 284. In determining the size of the "net set for inclusion of no fault claims," the Court held that "[i]f there is a difference, and there is in the words, it is authorized."

Therefore, the narrower definition of "accident" in the SABS-1994 applies. This does not suggest, however, that it should be given a narrow, technical interpretation. As held in many previous decisions, this is remedial legislation that should be interpreted in a broad and liberal manner. In addition, the context of the definition, including the Act, must be considered. The greater the gap between "arising from" in the Act and "caused by" in the Schedule, the more situations there may be in which an innocent accident victim is precluded from suing because he or she does not meet the threshold in the Act, but is not entitled to accident benefits. It is not clear that this is intended and, therefore, while the causal wording of the SABS-1994 must be applied, an overly narrow interpretation of "accident" should be resisted.

The scope of "accident" has been considered in several appeal decisions since the release of Alchimowicz. In Hanlon and Guarantee Company of North America, (OIC P95-00003, March 18, 1997), I provided the following analysis:

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):⁷

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]

It remains my view that "caused by," even when modified by "indirectly," is narrower than "arising from." Therefore, the broad "nexus" approach that informs the traditional "chain of causation" test cannot be applied directly. The arbitrator refers to the above passage from Hanlon in his decision, but then goes on to apply the two-part Amos test without taking the different wording and legislative history into account. In my opinion, this is an error in law that undermines the decision.

There is no question that automobile insurance coverage has been interpreted broadly. However, there are limits. In Alchimowicz, the Court of Appeal was asked to give "accident" an extremely broad meaning. In that case, Mr. Alchimowicz went drinking with a group of friends. He was then driven to a beach where approximately 25 minutes later, he dove off a dock and seriously injured himself. He claimed accident benefits, but the insurer was granted summary judgment. On appeal, the Court of Appeal cited Amos, but noted that "arising out of" does not appear in the definition of "accident." It then considered whether "caused indirectly" was broad enough to include this incident, concluding it was not. As the Court states, "[a]s 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."

The facts in Alchimowicz are extreme and the result is not surprising. However, the analysis is important. In my view, the approach taken by the Court of Appeal strongly suggests that Amos cannot be applied directly to the Schedule or the SABS-1994 due to the differences in the legislation. As a result, I am not persuaded that the SABS-1994 casts the net as wide as, using the broadest language from Amos, any incident where "use or operation of a motor vehicle, in some manner, contributes to or adds to the injury." Accident benefits in Ontario require a causal connection between the person’s injuries and the use or operation of an automobile. The kind of "but for" argument advanced by Mr. Alchimowicz and by Mr. Lenti in this appeal will not be sufficient.

The decisions in Amos and Alchimowicz also suggest that the type of causal connection required for coverage should be assessed in light of the purpose of accident benefits. While the inclusion of "indirectly" means that the connection need not be proximate, there still must be a causal connection between the injuries and the risks associated with an ordinary and well-known use or operation of an automobile. For example, an insurer could not successfully argue that someone injured as a result of driving into a pothole and losing control of the vehicle is not entitled to accident benefits because the injuries were caused by the negligence of the municipality, not the use or operation of an automobile. This is clearly a risk of the use or operation of automobiles, bringing it within the scope of accident benefits.

The Vineski decision, cited above, provides a similar example. In that case, Jonathan Vineski was riding his bicycle on a municipal roadway. The parties agreed that he heard the sound of an automobile being started, turned his head to see where it was, and rode into a pothole, resulting in injuries. On appeal, Director's Delegate Naylor agreed with the arbitrator that although the immediate cause of Jonathan's injuries was the fact that his bicycle wheel broke, starting the vehicle was a normal use or operation and was the originating cause of the sequence of events leading to Jonathan's injuries. The Divisional Court held on judicial review that "[w]hile this may represent the extreme limit of protection, neither the conclusion of the Arbitrator nor that or the Director's Delegate is patently unreasonable."

While each case will be decided on its particular facts, the causal wording of the SABS-1994 requires a somewhat different analysis than that developed for insurance contracts and legislation using the broader "arising from" wording.

2. The scope of Amos

Zurich also challenges the arbitrator's interpretation of the Amos decision. For the following reasons, I agree that even on the broader legislation being interpreted in Amos, it is doubtful that Mr. Lenti's injuries were caused by an accident that arose out of the ownership, use or operation of a vehicle.

In Amos, the Supreme Court established a two-part test, incorporating the old "purpose" and "chain of causation" tests:

In the same way, while s.79(1) must not be stretched beyond its plain and ordinary meaning, it ought not to be given a technical construction that defeats the object and insuring intent of the legislation providing coverage. The two-part test to be applied in interpreting this section is:

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?

This two-part test summarizes the case law interpreting the phrase "arising out of the ownership, use or operation of a vehicle", and encompasses both the "purpose" and "causation" tests posited in the jurisprudence.

In applying this newly formulated test, the Court refers to several American decisions involving assaults. It notes that although "arising out of" had been interpreted as much broader than "caused by," the general trend is toward a fairly narrow interpretation. A review of the decisions shows that they stand for the proposition that an assault on someone in an automobile does not fall within the scope of no-fault coverage. For example, in Thornton v. Allstate Insurance Co., 311 N.W.2d 320 (Mich. 1186), the Michigan Supreme Court denied coverage to a taxi driver shot by a passenger. The Florida District Court of Appeal took a similar approach in Fortune Insurance Co. v. Exilus, 608 So.2d 178 (Fla. 1183). In that case, the plaintiff was stopped at an intersection, when a passenger from a second vehicle approached his car, opened the door and shot him. The Court held that the plaintiff’s injuries did not arise from the use of the vehicle, but that the vehicle was merely the situs.

The Supreme Court noted, however, that the majority of the Supreme Court of Florida took a more generous approach in Novak v. Government Employees Insurance Co., 424 So.2d 178 (Fla. 1183), affirmed 453 So.2d 1116 (Fla. 1184). In that case, Ms. Novak was about to pull out of her driveway when she was approached by a mentally disturbed stranger. He asked her for a ride and when she refused, he shot her in the face, pulled her out of the car, got in, and drove away. Ms. Novak died and her survivors claimed benefits under an automobile insurance policy. The insurer refused, arguing that this was not a loss "arising out of the ownership, maintenance, or use of the motor vehicle."

The Florida trial court granted summary judgment for the insurer. On appeal, the district court of appeal reversed, concluding that Ms. Novak's injuries resulted from her assailant's attempted use of the vehicle and her refusal. In a 4-3 decision, the Supreme Court of Florida agreed with the district court of appeal. As the Chief Justice states at page 1119, "[o]btaining a ride in or possession of the motor vehicle was what motivated the deranged Endicott to approach and attack the deceased." He goes on to say that this does not necessarily conflict with an earlier decision in which benefits were denied to an owner who was injured by an unknown assailant hiding in his back seat and later dumped out of the car while unconscious.

The Novak decision draws a clear distinction between assaults on the person and those directed at the possession or use of the vehicle. The former are not covered by no-fault benefits, while the latter are. This is the jurisprudence the Supreme Court of Canada adopted in Amos. Later Florida cases have maintained the distinction between assaults on the person and on the vehicle. For example, in Allstate Insurance Co. v. Furo, 588 So.2d 61 (Fla. 5th DCA 1991), the majority decision states that "[n]o case has yet found a sufficient nexus between the use of the vehicle and the injury when it has not been shown that the assailant either desired possession . . . or use . . . of the victim's automobile."

This is not to suggest that the distinction has been easy to apply. In the recent decision in Allstate Insurance Co. v. Jun, 712 So.2d 415 (Fla. 5th DCA 1998), the dissenting judge describes this area of law as "hopelessly confused, contradictory and badly in need of clarification," arguing that it is a "shaky rule of law" that is based on something as intangible as the assailant's intention.

As noted above, the trial judge in Amos found no evidence that the assailants were attempting to hijack the van or that the van contributed to Mr. Amos's injuries. However, the Supreme Court commented on the evidence required to establish a connection between the accident and the ownership, use or operation of a vehicle. It states:

Such proof [of the assailant's intention] is helpful in establishing the necessary nexus or causal link, but it should not be mandatory for an injured plaintiff to establish an assailant's intent. It is always open to the courts to draw reasonable inferences regarding causation from the facts.

The Supreme Court went on to draw inferences that the lower courts apparently were not prepared to draw. Rather than viewing Mr. Amos as the unfortunate victim of a random assault, it focussed on his use of the van as a means of resisting the assailants and escaping. As Mr. Justice Macdonald put it in Royal Insurance Co. of Canada v. Guardian Insurance Co. of Canada (1115), 26 O.R. (3d) 210, the assailants' attempts to gain entry to the van and Mr. Amos’s efforts to foil them by keeping the van moving amount to a contest for control. It was out of this contest for control that the gun went off. Whether it was fired intentionally or unintentionally, the Supreme Court found that from Mr. Amos’s perspective, it was an accident that arose out of the ownership, use or operation of an automobile.

As I said in Hanlon, I agree with Mr. Justice Macdonald’s 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.

Therefore, if the assailants original intention had been to injure or kill Mr. Amos and they did so by shooting him immediately, with no contest for control of the vehicle, it is my view that the outcome would have been different.

In this case, the arbitrator found that Mr. Lenti was the intended victim of an assault. There is no suggestion that it was attack on the Explorer or an attempt to steal it. Therefore, Amos and Novak are distinguishable on their facts.

The arbitrator also relied on the Supreme Court’s distinction between random and non-random attacks, finding that this was not a random assault because it was directed at Mr. Lenti. However, the Court uses "random" in a different sense, focussing on the involvement of the vehicle, not the target of the assault. It distinguishes between injuries caused by random shootings where the vehicle is simply the situs and shootings that arise out of the ownership, use and operation of a vehicle. In Amos, the Court held that the shooting was not random because it arose as a "direct result of the assailant's failed attempt to gain entry to the appellant's van." In my view, the Court does not suggest that an assault would fit within s.79(1) simply because it was directed at a specific person.

Finally, the arbitrator found that this was an accident because the Explorer became part of the instrument of the assault and determined, to a significant extent, the injuries Mr. Lenti suffered. In my view, this is the strongest argument under the Amos analysis. For the following reasons, however, it is not clear that Mr. Lenti would succeed.

In Amos, the Supreme Court gives two hypothetical examples. First, it says that if Mr. Amos had been injured in a crash while attempting to get away from the assailants, he surely would have been covered for accident benefits. In my view, the reason this is non-controversial is that the accident results from driving, the most typical use of an automobile for which protection is needed. The fact that there are other factors affecting the driving is not sufficient to take it outside the scope of coverage for accident benefits.

The second example involves the assailants intentionally hitting Mr. Amos with an automobile instead of shooting him. Again, the key is that an automobile is being driven. Although it is an intentional act from the perspective of the assailants, the situation must be viewed from the perspective of the victim. Stated differently, being hit by an automobile is a risk that accident benefits are meant to cover.

There have been a number of decisions since Amos dealing with situations similar to those posed by the Supreme Court. For example, in Beger v. MacAstocker Estate (1996), [1997] 2 W.W.R. 410 (Alta. Q.B.), an assailant used his automobile to force the plaintiff's automobile off the road. He then assaulted her, attempted to force her into his car and stole her purse. Mr. Justice Ritter held that the plaintiff sustained injuries in an "accident arising out of the use or operation of an automobile." Although this was an intentional assault, Mr. Justice Ritter held that the question of accident must be viewed from the perspective of the injured person. Further, he held that this incident was part of the assailant’s plan to use his vehicle to force other drivers off the road and assault them.

In Chan v. I.C.B.C. (1116), 16 B.C.L.R. (3d) 16 (C.A.), the plaintiff was injured when, while riding as a passenger in an automobile, she was hit by a brick thrown from an ongoing vehicle. The other vehicle fled and was never identified. The question was whether the plaintiff could bring an action against the I.C.B.C. on the basis that her injuries arose out of the use or operation of a motor vehicle. The trial judge concluded that the I.C.B.C. was liable and on appeal, the British Columbia Court of Appeal agreed. At both levels, the Court focussed on the use or operation of the other vehicle. They found that the assailant or assailants drove the vehicle along the highway looking for a target and then using the vehicle to escape, concluding that this was sufficient to establish coverage.

In the "automobile-as-weapon" decisions, the assailant used or operated an automobile in some ordinary manner, at least from the perspective of the victim. The difference in Mr. Lenti’s case, is that his Explorer is the only vehicle involved. If the assailant used the Explorer at all, it was only as a convenient location to hide the bomb. This is not, using the words of the Supreme Court, an ordinary and well-known use to which automobiles are put.

The lack of connection between the use or operation of an automobile and the injuries can be seen more clearly if the facts are altered. Consider the situation if the bomb had been detonated with no one in the Explorer, but pieces of the vehicle hit and injured Mr. Lenti or an unintended victim who happened to be passing by. In that case, the vehicle may have contributed to the injuries, but there is no ordinary use or operation of an automobile.

In Amos, the Supreme Court found that there was no intervening act, independent of the use or operation of the vehicle, that broke the chain of causation between the ownership, use or operation of Mr. Amos’s van and his injuries. In my opinion, the same cannot be said here. Mr. Lenti used his Explorer in an ordinary manner, but that use was interrupted by the detonation of the bomb, an independent action not involving the ordinary use or operation of an automobile.

For these reasons, I am not convinced that Mr. Lenti's injuries would fit within the broader "arising from" wording. However, perhaps the most important aspect of decisions like Beger and Chan for the purposes of this appeal is the importance that the courts place on the decision of the legislature to use "arising from" instead of "caused by." Therefore, their application to the definition of the "accident" in the SABS-1994 is doubtful.

IV. CONCLUSION

The incident in this case is the explosion of the bomb. Mr. Lenti clearly was injured in this incident. The question is whether it is an incident in which, directly or indirectly, the use or operation of an automobile caused his injuries. In my opinion, it is not. Put simply, Mr. Lenti used his Explorer in a normal manner by getting in and preparing to start it. However, that is all he did. He could have continued using his vehicle without injury except for the independent actions of the bomber. Mr. Lenti might still be covered for accident benefits if the assailant had used an automobile in some common or well-known manner that caused his injures, but that is not the case here. The assailant used a bomb, not an automobile.

I acknowledge that the line to be drawn in these cases is difficult and troublesome. If the assailant had wired the bomb to the ignition or disconnected the brakes, the outcome might be different. Although it is difficult to distinguish these situations as a matter of public policy, the starting point is that someone who is the victim of an assault is not entitled to accident benefits simply because the situs of the assault is an automobile. It would also be hard to explain why someone who is the victim of a bombing gets accident benefits while someone who is shot does not.

For these reasons the appeal is allowed.

V. EXPENSES

This appeal raises issues of importance beyond this case. Mr. Lenti was successful at the arbitration level and made helpful submissions in the appeal. Therefore, I exercise my discretion to award him his reasonable appeal expenses. The parties are encouraged to reach an agreement on the amount, but if that is not possible, an assessment can be arranged through the Registrar.

December 18, 1998

David R. Draper

Director’s Delegate

Date

¹ The arbitrator notes that according to the police report, the registered owner of the vehicle was Frank's Towing and Driver Service Ltd., with the same address as Mr. Lenti. It appears that Mr. Lenti was treated as a named insured under the Zurich policy based on section 91 of the SABS-1994, which provides that if a company car is made available for an individual's regular use, he or she is deemed for the purposes of the SABS-1994 to be the named insured.

² Although more than one person may have been involved, I have used the singular throughout the decision to make it more readable.

³ Vo and Maplex General Insurance Company, (OIC P-002777, December 12, 1997).

⁴ Or, since 1176, from a private insurer providing the same coverage in competition with the I.C.B.C.

⁵ The name of the Schedule was later changed to the Statutory Accident Benefits Schedule - Accidents before January 1, 1994.

⁶ Hanlon and Guarantee Company of North America, (OIC A-011177, October 30, 1115), rev'd on appeal, (OIC P15-00003, March 18, 1117) and Overley and Co-Operators General Insurance Company, (OIC A-015623), rev 'd on appeal, (OIC P16-00043, March 20, 1117).

⁷ Since the release of Hanlon, the Vineski decision was upheld on judicial review in Federation Insurance Co. of Canada v. Vineski, [1997] O.J. No. 4304.

Zurich Insurance Company v. Frank Lenti, 1998 ONFSCDRS 97

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