Neutral Citation: 1998 ONICDRG 99, 1998 ONFSCDRS 99

FSCO A97-001404

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

FARES ASSAF

Applicant

and

COMMERCIAL UNION ASSURANCE COMPANY

Insurer

DECISION

Issue:

The Applicant, Mr. Fares Assaf, was injured on March 29, 1996. He applied to Commercial Union Assurance Company ("Commercial Union") for statutory accident benefits payable under the Schedule.¹ Commercial Union denied Mr. Assaf's application.

This issue in this hearing is:

1. Was Mr. Assaf injured in an accident within the meaning of the Schedule?

Result:

1. Mr. Assaf was injured in an accident within the meaning of the Schedule.

Hearing:

The hearing was held at the offices of the Financial Services Commission of Ontario² in North York, Ontario, on September 28, 1998, before me, Lawrence Blackman, Arbitrator, under the authority of the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

Present at the Hearing:

Applicant:

Fares Assaf

Mr. Assaf's

Robert Besunder

Representative:

Barrister and Solicitor

Commercial Union's

Brian Atherton

Representative:

Barrister and Solicitor

Witnesses:

Mr. Assaf was the only witness at the hearing. The evidence was transcribed by Ms. Elizabeth A. Murphy of Rosenberger & Weir, Official Examiner's Office.

Exhibits:

Exhibit 1 The Applicant's Document Brief, Tabs 1, 8, 9, 10, 11, 17 and 18.

Exhibit 2 Injured Victims of Crime Report, dated March 29, 1996.

Evidence and Findings:

1. Facts:

The Applicant's evidence was substantially corroborated by a signed statement to the police of a business subordinate and witness, Mr. Ron Madia, and by the investigating officer's report. The Applicant's evidence was not significantly challenged in cross-examination. Mr. James Conrad, the other participant in the events in question, was not called to testify.

Based on the evidence before me, I make the following findings:

1. On March 29, 1996, at approximately 12:30 p.m., Mr. Assaf was driving westbound on the Queen Elizabeth Way (the "QEW") from a business appointment in St. Catharines to another business appointment in Burlington. The Applicant was alone in his car, in the left lane of traffic, travelling between 110 and 125 kmph. Mr. Madia was driving the second car behind the Applicant's vehicle. Immediately ahead of Mr. Assaf was a van, driven by Mr. Conrad.

2. Mr. Conrad was not travelling fast enough for Mr. Assaf. Mr. Assaf flashed his lights for Mr. Conrad to get out of the way. When Mr. Conrad remained in the left lane, Mr. Assaf passed Mr. Conrad on the right. On returning to the left lane, it appeared to Mr. Assaf that he had missed Mr. Conrad's vehicle by only one or one and a half feet, leading Mr. Assaf to conclude that Mr. Conrad had deliberately sped forward.

3. Mr. Assaf observed Mr. Conrad to be very angry and gesturing with his hand in the air. Mr. Conrad continued to tailgate Mr. Assaf's car, such that Mr. Assaf could not see the front license plate or even the hood of Mr. Conrad's vehicle. Mr. Assaf's efforts to evade Mr. Conrad by changing lanes were frustrated by Mr. Conrad matching the Applicant's lane changes. The cars accelerated to 140 or 150 kmph. After being tailgated for several minutes, Mr. Assaf, while in the left lane, noted an exit to Centennial Parkway. In an effort to lose Mr. Conrad and, in Mr. Assaf's opinion, avoid a collision, the Applicant made a "straight right" across the intervening lanes of traffic to the exit. Mr. Conrad, however, followed immediately behind.

4. Mr. Assaf decided that rather than have Mr. Conrad follow him through the Hamilton city streets, he would stop his car and try to calm his pursuer. Mr. Assaf had no expectation that there would be any physical altercation. Mr. Assaf was able to stop his car on the side of the road, adjacent to the grass. Mr. Conrad stopped his car some four metres behind Mr. Assaf's car. Mr. Assaf left his car running, but in park, and exited his vehicle. Mr. Conrad also exited his car and the two individuals met adjacent to Mr. Assaf's car.

5. Almost immediately, Mr. Conrad insulted Mr. Assaf. As Mr. Assaf asked Mr. Conrad why he was getting so upset, the latter unexpectedly pushed Mr. Assaf. Mr. Assaf, in order to restrain the other driver, grabbed Mr. Conrad into a headlock. The interlocked drivers then pushed or pulled each other towards the gap between the two cars. At the point where the asphalt met the grass, Mr. Assaf lost his footing and fell, with the still head-locked Mr. Conrad landing on top of him. This resulted in Mr. Assaf fracturing his left lower leg. The events at the side of the road took 20 to 25 seconds.

6. Mr. Madia (who had by then arrived on the scene) prevented Mr. Conrad from leaving. Mr. Madia called for assistance on his cell phone. The Hamilton-Wentworth Regional Police Report indicates that the "offence" occurred at 12:30 p.m. A call report notes the arrival of the ambulance at 12:43 p.m. Mr. Assaf was noted to have been "involved in assault with other motorist when other person [sic] fell injuring" Mr. Assaf who was found "lying in a ditch." In light of this contemporaneous confirmation (in addition to the notes of the nursing department the day of the accident) of Mr. Assaf's evidence, I find the treating surgeon's note the next day that Mr. Assaf "was involved in a bar fight in the wee hours of the morning . . . and recalls stumbling and falling to the ground with knee pain," to be incorrect.

7. Having received no evidence to the contrary, I find that there was no prior relationship between Mr. Assaf and Mr. Conrad and that the events that transpired were not triggered by anything other than their driving.

2. Law

1. For Mr. Assaf to be entitled to benefits under the Schedule, he must have sustained an impairment as a result of an accident. Justice Holmes has described "accident" as:

a chameleonic term, taking on different hues and shades of meaning in different circumstances, context and classes of cases . . . It is indeed a term "susceptible of being given such scope that one would hardly venture to define its boundaries."³

Courts have, in fact, found "accidents" to have arisen out of the operation or use of an automobile when a driver deliberately ran down a pedestrian with his car,⁴ when a driver was shot by an assailant intending to steal or hijack his vehicle,⁵ where an occupant of a car was punched in the face through an open car window⁶ and where a driver was forced off the road and beaten by an assailant who tried to drag the driver to the assailant's car.⁷

2. The Schedule does not define the word "accident" in its popular and ordinary sense. Rather, "accident" is defined as:

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;⁸

[emphasis added]

3. The parties agree that Mr. Assaf sustained an impairment. The parties dispute, however, whether this impairment was caused, either directly or indirectly, by the use or operation of an automobile.

4. Theoretically, the word "indirectly" would potentially make an insurer "responsible ad infinitum for all the consequences"⁹ flowing from the "use or operation of an automobile." This would be an unreasonable result. "The law must draw a line somewhere."¹⁰

5. In determining the scope of insurance coverage, this Commission has followed the "purpose" and "chain of causation" tests enunciated in various court decisions. The latter test, as initially propounded in Law, Union & Rock Insurance Co. v. Moore's Taxi Limited, 1959 CanLII 81 (SCC), [1960] S.C.R. 80, required "a continuous chain of causation unbroken by the interposition of a new act of negligence and stretching between the negligent use and operation of a motor vehicle on the one hand and the injuries sustained by the claimant on the other."¹¹

6. As stated by Director's Delegate Naylor in Ekunah and Simcoe & Erie (OIC P-007550, April 22, 1996), the two-fold test was reformulated by the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia (1995) 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618, as follows:

7. Did the accident result from the ordinary and well-known activities to which automobiles are put?

8. 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?

[emphasis added]

7. Although it was held in Amos that the phrase "arising out of (which was used in the definition of accident in that case) is of broader significance than "caused by," I agree with Director's Delegate Naylor in Federation Insurance Company of Canada and Vineski (OIC P96-000034, October 18, 1996), that the phrase "causes, directly or indirectly" in the Schedule definition "allows for consideration of a more remote causal link" than the "doctrine of proximate cause." The latter doctrine would limit the inquiry to ascertaining only "the dominant or effective cause of the loss."¹²

8. The Supreme Court held in Amos that "a motor vehicle need not be the instrument of the injury to satisfy the casual connection requirement. Injuries which do not arise from the negligent use of a motor vehicle may be covered." Citing the Dickinson¹³ case, the Court stated that "liability for the injury may arise from a tortious act other than the negligent use of a motor vehicle." Director's Delegate Naylor thus determined, in considering the particular words of the Schedule definition of "accident," that:

the vehicle need not be the instrument of injury. However, it is not enough to show that an automobile was merely the location of the injury, that the victim or perpetrator were occupying it at the time of the injury, or that an automobile was involved in some peripheral or incidental way. The use or operation of the vehicle must have caused the injury, whether directly or indirectly.¹⁴

[Director's Delegate's emphasis]

As stated further by Director's Delegate Naylor in Vineski, "the role of the automobile in the whole scenario must be considered." The use or operation of the motor vehicle may be the triggering or "originating cause of the sequence of events that led to the ultimate injury."¹⁵ The use or operation of a vehicle must, however, be "integral to the entire sequence of events."¹⁶

9. "In establishing the necessary nexus or causal link," the Supreme Court held that it is helpful to establish the intent of the assailant. The Court further held that "[i]t is always open to the courts to draw reasonable inferences regarding causation from the facts."¹⁷

10. In this case, it is reasonable to infer that the Applicant's attempt to pass Mr. Conrad, while both were driving on the QEW, "triggered" Mr. Conrad's rage. Driving is obviously an "ordinary and well-known activity" to which automobiles are put, as required by the first test in Amos. It is further reasonable to infer that this rage led Mr. Conrad to try to impede Mr. Assaf's safe operation of his vehicle.

11. "As a general rule any action taken to control or avoid the consequences of an insured peril will not be regarded as an intervening cause."¹⁸ I find that Mr. Assaf's stopping and exiting from his vehicle were not intervening causes, but were rather intended to be momentary interruptions of his ongoing use of his vehicle,¹⁹ in order to avoid the peril of a collision and to try to reason with Mr. Conrad to allow the Applicant to safely resume driving his vehicle. As in both Amos and Mander,²⁰ the Applicant "was faced with an interference in the use or operation of his vehicle." I find that the interference in Mr. Assaf's ongoing use of his car was continuing at the time the injury occurred.

12. I also find that the assault by Mr. Conrad and the ensuing struggle were not intervening causes. As in Beger v. MacAstocker Estates (Public Trustee of), 1996 CanLII 10516 (AB QB), [1996] A.J. No. 985, (Alta. Q.B.), I find that these events and the ensuing impairment "originated from, or flowed from, or were causally connected"²¹ with the use or operation of the motor vehicles. To again cite the Director's Delegate in Vineski, the operation of the motor vehicles was the triggering or "originating cause of the sequence of events that led to the ultimate injury."

13. A different interpretive approach was taken by Director's Delegate Draper in Hanlon²²and in Overley.²³ Both cases involved assaults following the use and operation of automobiles. Both appeal decisions held that the applicants had not been injured in an "accident." In Hanlon, the Director's Delegate found that "cause" was "an instrumental aspect" that was lacking as 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." This passage was repeated in Overley.

The appeal decisions in Vineski and Ekunah do not, in my opinion, support the proposition that the Schedule definition of accident limits the requisite causative link to inevitable consequences or to instances where the use or operation of the automobile is "ongoing" at the moment injury is sustained. It is noteworthy that none of the cases²⁴noted in support of the latter proposition include the word "indirectly" in the definition of "accident" before them. As stated in Ekunah, "because of the different language and context, the applicability of prior case-law must be viewed with caution." In any event, I agree with Arbitrator Bayefsky²⁵ that Amos, which is included in the cases cited on appeal, did not decide that the purpose test required that the injuries must occur concurrently with the use or operation of an automobile.

If the Legislature had intended as a mandatory requirement that the use or operation of the vehicle be "continuing" at the exact moment of injury, it would have been a simple matter to have added that one word before the words "use or operation." As the Legislature did not, but rather used the word "indirectly," whether the use or operation of the vehicle is continuing (and the more general question of temporal proximity) is but one more factor to consider in determining whether the use or operation of an automobile was the "triggering" or "originating cause of the sequence of events that led to the ultimate injury." Nonetheless, in this case, as noted above, I find that there was an ongoing interference in Mr. Assaf's use of his vehicle at the time of injury, which followed almost immediately upon the two drivers exiting their vehicles.²⁶

14. Mr. Assaf submits that the entire sequence of events from the first encounter on the QEW to the injury being sustained are one incident as required by the Schedule, because these events constitute one continuing assault. I do not agree that this is sufficient. If the reason for Mr. Conrad's actions was unrelated to the use and operation of a motor vehicle (for example, if Mr. Conrad's rage had been triggered by a business dispute and Mr. Assaf had exited his car to discuss their prior business relationship), then at the point when the injury occurred, the use and operation of the motor vehicles would be merely incidently or peripheral. It would be merely fortuitous that the altercation occurred at the side of the road, as opposed to a place of business or some other location.

15. What is central and integral to the entire sequence of events in this case, what fundamentally caused the ultimate impairment, was the use (or misuse) of the vehicles. The vehicles are the unifying factors which make the sequence of events from the first encounter on the QEW to the impairment being sustained, "an incident," as required under the Schedule. The use of the vehicles was not "merely incidental or fortuitous"²⁷in connection with the sustained impairment.

16. To paraphrase Amos:

If [Mr. Assaf] had not [fallen], but had lost control of his car while trying to get away from [Mr. Conrad], the injuries suffered as a result of a subsequent car crash would surely be covered by the [Insurer]. Similarly, if [Mr. Assaf] had suffered injuries as a result of being intentionally hit by [Mr. Conrad's car] instead of [falling], the [Insurer] would not deny coverage. I do not think the instant case can be distinguished from the foregoing hypothetical examples. Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the [applicant] is entitled to coverage.

17. If the legislature had wished to narrowly restrict the meaning of the word "accident," it would not have added the word "indirectly" to the definition in question. In light of the statutory presumption that "[e]very Act shall be deemed to be remedial . . . and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit,"²⁸ I find that Mr. Assaf was injured in an accident within the meaning of the Schedule.

Expenses:

I may be spoken to, if the parties cannot agree on the expenses of this arbitration proceeding.

Order:

1. Mr. Assaf is entitled to claim benefits pursuant to the Schedule.

December 23, 1998

Lawrence Blackman

Arbitrator

Date

Traditionally, the provisions providing coverage in private policies of insurance have been interpreted broadly in favour of the insured, and exclusions interpreted strictly and narrowly against the insurer.

In Beger, noted supra, the Alberta Court of Queen's Bench noted at paragraph 149, the Supreme Court's retreat in Amos from the causal requirement advanced in Law, Union and Rock Insurance Co.

Both drivers then got out of their cars, surveyed the damages, and discussed whether or not the police should be called. At this point, the claimant, Race, reached into his bag to remove his insurance papers and identification. Believing that Race was about to pull out a gun, [the other driver] assaulted Race and caused the injuries for which the claims were made. The most that can be said is that the driving of the uninsured motorist which caused the accident created an atmosphere of hostility between the parties which. It had nothing to do with Race's injuries, which only came about several minutes later when [the other driver] thought Race was reaching for a gun.

This is a very different factual situation from the case at hand where I find that the intent to assault arose while the vehicles were being operated on the QEW and as a reaction to Mr. Assaf's use of his automobile, and did not arise independently of the use and operation of the vehicles as in Race.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1993 and before November 1, 1996, Ontario Regulation 776/93, as amended by Ontario Regulations 635/94, 781/94 and 463/96.
2. 2Effective July 1, 1998, the Ontario Insurance Commission was changed to the Financial Services Commission of Ontario, pursuant to the Financial Services Commission of Ontario Act, S.O. 1997, c.28.
3. 3White v. Smith, 440 S.W.2d 497 (Mo. 1969) at 511.
4. 4Iaquone v. Florou et al., [1981] I.L.R. 1-1367, (Ont. S.C.).
5. 5Amos v. Insurance Corporation of British Columbia (1995) 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618 (S.C.C.).
6. 6Hatpin v. Hilderbrand, (1986) 493 So. 2d 75 (Fla. Dist. Ct. App.).
7. 7Beger v. MacAstocker Estates (Public Trustee of), 1996 CanLII 10516 (AB QB), [1996] A.J. No. 985, (Alta. Q.B.).
8. 8The Ontario Court of Appeal held in Alchimowicz and Continental Insurance Company of Canada (unreported decision released September 3, 1996, Court file C23058) that the Schedule's definition of accident governs, rather than section 266 of the Act.
9. 9Rogers, W.V.H., Winfield and Jolowicz on Tort, 10th ed., London, England: Sweet & Maxwell, 1975, at p. 88.
10. 10Ibid.
11. 11Law, Union and Rock Insurance Co. involved the interpretation of an exclusion clause. As stated in Amos:
12. 12Hilliker, Gordon, Liability Insurance Law in Canada, Toronto and Vancouver: Butterworths, 1991, pp. 118-119.
13. 13Dickinson v. Motor Vehicle Insurance Trust, [1987] 61 A.L.J.R. 553 (Aust. H.C.).
14. 14Ekunah and Simcoe & Erie (OIC P-007550, April 22, 1996).
15. 15Federation Insurance Company of Canada and Vineski (OIC P96-000034, October 18, 1996). In this case, the Director's Delegate held that "the sound of the vehicle was the originating cause of the sequence of events that led to the ultimate injury . . . Here, the starting of the engine triggered the consequences that followed and was a crucial component of the chain of events that resulted in [the Applicant's fall]. I agree that the chain of events was not broken by [the Applicant's] conduct, the state of the road or the fact the bicycle wheel broke."
16. 16Hanlon and Guarantee Company of North America (OIC P95-00003, March 18, 1997). Director's Delegate Draper was referring to the court's finding in Beger, noted supra.
17. 17Amos, noted supra.
18. 18Brown, Craig and Julio Menezes, Insurance Law in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1991, p. 194.
19. 19As found in Dickinson, noted supra.
20. 20Wellington Insurance Company and Mander (OIC P-002057, December 30, 1997).
21. 21Beger, at paragraph 157.
22. 22In Hanlon, the Director's Delegate found that "the only role played by the use or operation of an automobile was to create an atmosphere of hostility." The phrase "atmosphere of hostility" is taken from Race v. Nationwide Mut. Fire Ins. Co., 542 So. 2d 347 (Fla. 1989), where the court found that following a minor traffic accident:
23. 23Co-operators General Insurance Company and Overley (OIC P96-00043, March 20, 1997).
24. 24Amos v. Insurance Corporation of British Columbia, noted supra, Novak v. Government Employees Insurance Co., 424 So. 2d 178 (Fla. 1983), affirmed 453 So. 2d 1116 (Fla. 1984), Beger v. McAstocker Estates (Public Trustee of), noted supra, Chan v. Insurance Corp. Of British Columbia, 1996 CanLII 353 (BC CA), [1996] 4 W.W.R. 734 (B.C.C.A.)., Johnstone v. Lee, 1979 CanLII 732 (BC SC), [1979] 17 B.C.L.R. 324 (B.C.S.C.) Kangas v. Aetna Casualty & Surety Co., 235 N.W. 2d 42 (1975) (Mich. Ct. of Appeals) and Dickinson v. Motor Vehicle Insurance Trust, noted supra.
25. 25Overley and Co-operators (OIC A-015623, April 3, 1996).
26. 26The case of Kyriazis v. Royal Insurance Co. of Canada (1991), 1991 CanLII 8318 (ON CTGD), 31 M.V.R. (2d) 238, is relevant in this regard. In that case, the court held that a person may "retain the status of an occupant, even though physically outside the vehicle, if he or she retains sufficient connection with the vehicle to be within a zone defined by such factors as actual pre-accident occupancy of the vehicle, the proximity in time between the pre-accident occupancy and the accident, and a clear intention to resume occupancy immediately after performing a task." I find that these "sufficient connection" questions would be answered in the affirmative in the factual case herein.
27. 27Amos, noted supra.
28. 28The Interpretation Act, R.S.O. 1990, c.s. 10.```