Financial Services Commission

Commission des services financiers de l’Ontario

Neutral Citation: 2000 ONFSCDRS 63

Appeal P99-00035

OFFICE OF THE DIRECTOR OF ARBITRATIONS

RAMSARUP KOHLI

Appellant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Respondent

Before:

David R. Draper, Director's Delegate

Counsel:

Kevin K. V. Doan (for Ramsarup Kohli)

Mark K. Donaldson (for State Farm)

APPEAL ORDER

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

The appeal is dismissed and the arbitration order dated June 16, 1999 is confirmed.
No appeal expenses are payable.

March 28, 2000

David R. Draper Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

This appeal involves the definition of "accident" in the SABS-1994.¹ Ramsarup Kohli appeals from an arbitration decision dated June 16, 1999, concluding that he was not injured in an accident.

II. ANALYSIS

On April 20, 1996, Mr. Kohli was injured in an incident in the underground parking garage of his apartment building. An unknown assailant followed him down to the garage, hit him with a bottle and stole his car. The question is whether he is entitled to accident benefits under his automobile policy issued by State Farm Mutual Automobile Insurance Company ("State Farm"). The result turns on the following definition of "accident" in s.1 of the SABS-1994:

"accident" means an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury.

At the arbitration hearing, the facts were disputed. Mr. Kohli claimed that the assault took place after he had reached his car and put his key in the lock. State Farm challenged his testimony, arguing that he previously reported to various people that he was confronted by the assailant before reaching his car.

The arbitrator did not find Mr. Kohli's testimony reliable. As a result, she based her findings on his earlier statements which, although not providing a complete or totally consistent version of the incident, allowed her to make the following findings:

"From the evidence, I am unable to ascertain his precise distance from the car. However, I think I can reasonably conclude that Mr. Kohli was relatively close to his car just before and during the assault." [p.9]
". . . I believe it can be reasonably inferred from the facts that the assailant had the intent on the morning of April 20, 1996 to steal a car. When the elevator door opened at the apartment lobby and he saw Mr. Kohli alone and heading for the basement garage, he chose him as his victim. When the assailant left the elevator, he (the assailant) walked in the opposite direction from Mr. Kohli to give him (Mr. Kohli) an opportunity to walk toward his car, thereby identifying for the assailant the car to be stolen. Once Mr. Kohli arrived close enough to his car, the assailant walked back toward Mr. Kohli, showed him a note to distract him, assaulted him, obtained the car key and stole his car. I therefore infer from the factual context, that at the time of the assault, Mr. Kohli must have been close enough to his car for the assailant to know which car was his." [pp. 9-10]
"I found that Mr. Kohli had not reached his car, although he was close to it, when he was assaulted. It is not disputed that he intended or planned to use his car when he went to the underground garage that morning. The assailant who approached Mr. Kohli in the garage also planned to use the car." [p.14]

The arbitrator's factual findings are not challenged on appeal. The question is whether she erred in concluding that this was not an "accident" within the meaning of the SABS-1994. For reasons that follow, I agree with the arbitrator's analysis and adopt her reasons. As she states:

When the assault occurred, the use or operation of the car remained only at the level of an intention in the minds of both Mr. Kohli and the assailant. I find that the employment of the terms "use" and "operation" in the definition requires the vehicle to have been more than the object of an intention or merely present during the incident. To my mind, these words contemplate a more functional or instrumental role for the vehicle in the injury-causing incident. The words "directly or indirectly" modify "caused by" and not "use" or "operation."

. . . It might be said that Mr. Kohli was injured because of his car or in the presence of his car, but his injuries were not caused, directly or indirectly, by its use or operation.

On appeal, Mr. Kohli argues that the arbitrator erred in interpreting "use" too narrowly. He relies on the following definition of "use" in Black's Law Dictionary, a definition cited by the arbitrator:

Act of employing everything, or state of being employed; application, as the use of a pen or his machines are in use . . . To put or bring into action or service; to employ for or apply to a given purpose . . . To avail oneself of; employ; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain an end. [emphasis added]

In Mr. Kohli's submission, he was in the course of availing himself of his automobile when he was injured. I am not persuaded that the definition extends "use" to the kind of preliminary steps claimed by Mr. Kohli. In my opinion, it simply means "to make use of." This leaves the central question: is approaching a parked vehicle with the intention of using it included within "use or operation of an automobile?"

In support of his position, Mr. Kohli refers to the arbitration decision in Gligoic and Economical Mutual Insurance Company, (OIC A96-001588, December 19, 1997). In that case, Mr. Gligoric slipped on ice as he extended his arm, key in hand, about to insert the key into the car door lock. Applying the two-part test established by 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, the arbitrator held that unlocking the door was an ordinary and well-known activity to which an automobile can be put, and that there was a sufficient nexus between this use or operation and Mr. Gligoric's injuries to bring it within the definition of "accident."

Proximity was a critical consideration in Gligoric. At the arbitration in this case, Mr. Kohli attempted to establish a similar proximity, arguing that he was assaulted after reaching his car and putting the key in the lock. However, the arbitrator did not accept his evidence, distinguishing the situation from that in Gligoric.

In Fedrizzi and TTC Insurance Company, (FSCO A97-000839, March 25, 1998), another arbitrator considered the claim of a woman who fell while approaching a street car. I agree with her analysis, as follows:

If the Applicant had fallen before she entered the LRT station, there would be no dispute that the incident was not an "accident" as defined. If she had fallen after she boarded the streetcar, there would be no dispute that the incident was an "accident." As the previous arbitration and court decisions make clear, there are no hard and fast rules for determining exactly when, during the Applicant's progress from the station entrance to the door of the streetcar, her activities began to involve "directly or indirectly, the use or operation of an automobile."

I was presented with no evidence that the Applicant fell while climbing the stairs to board the streetcar, that she fell because she shifted her weight in the process of approaching or preparing to board the streetcar, that she was jostled by other passengers, or that the arrival of the streetcar distracted or startled her. The Applicant testified that she was "walking toward" the streetcar when she fell. In my view, it does not matter whether the Applicant was several steps or several feet away from the streetcar at the time of her fall. The streetcar was her destination, but that was true even before she entered the LRT station, and there is no question that a fall before she entered the station would not be an "accident" as defined in section 1. In my view, that the streetcar was the Applicant’s destination and the incident occurred on TTC property does not establish a causal nexus between the injury-causing incident and the use or operation of an automobile.

While the limits of the definition of "accident" are somewhat unclear, I find that this incident falls outside them, and falls exclusively within the risk associated with occupier's liability. I agree with Ms. McGuire that the TTC's potential liability as occupier is not sufficient to establish the causal nexus required by the Schedule’s definition of "accident." Therefore, the Applicant is not entitled to claim statutory accident benefits, and her application for arbitration is dismissed. [footnotes omitted]

The line may be difficult to draw, but in this case, I am satisfied that the arbitrator considered the appropriate factors and reached a decision available on the evidence. Therefore, I am not prepared to interfere.

Mr. Kohli argues that the nexus between the automobile and his injuries is seen more clearly when the incident is viewed from the perspective of the assailant. To use the automobile, the assailant needed the keys. In his submission, therefore, the assault was integral to gaining control of the vehicle, bringing it within the "struggle-for-control" analysis in Amos.

As the arbitrator states, the situation in Amos was different. Mr. Amos was using his vehicle in an ordinary manner. He was driving it. After braking to avoid hitting a group of men who confronted him, he attempted to drive away, leading directly to his injuries as the assailants attempted to stop him. It was Mr. Amos's use of the vehicle, not the intention of the assailants, that satisfied the first part of the Amos test:

The appellant here was driving his van down a street; the accident resulted "from the ordinary and well-known activities to which automobiles are put". The first part of the two-part test is satisfied. (p.415)

Similarly, in Novak v. Government Employees Insurance Company, 424 So. 2d 178 (Fla. 1983), aff'd 453 So. 2d 1116 (Fla. 1984), Ms. Novak's was in her car about to back out of her driveway, when she was approached by a stranger asking for a ride. When she refused, he shot her, pulled her from the car and drove away. There is no suggestion in the Amos decision that the stranger's intentions satisfied the first part of the test. The Court relied on Novak with respect to the second part of the test — establishing a nexus between the person's injuries and the ownership, use or operation of the automobile.²

In this case, I am not persuaded that the assailant's intention to steal a car can be used to satisfy the first part of the Amos test. Assaulting someone to get their car keys is not "an ordinary and well-known activity to which automobiles are put." Therefore, the first part of the Amos test is not met.

At the appeal hearing, I directed counsel to the Ontario Court of Appeal’s recent decision in Vijeyekumar v. State Farm Automobile Insurance Co. (1999), 1999 CanLII 1640 (ON CA), 44 O.R. (3d) 545. The facts of that case are quite different, involving the use of an automobile to commit suicide by running a hose from the exhaust pipe into the passenger compartment. In approving the trial judge’s decision, the Court of Appeal held that the Amos analysis applies despite the differently worded definition:

The wording of the British Columbia legislation under which Amos was decided differs slightly from the wording used in Ontario’s Schedule [SABS-1994]. The British Columbia statute provides for the payment of benefits "in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle" the definition of accident in the Schedule speaks of "an incident, in which directly or indirectly the use or operation of an automobile causes an impairment". Nonetheless, the two provisions are enough alike that the Amos test may be applied to the definition of accident under the Schedule. (p.552)

This is in contrast to the arbitrator’s analysis, consistent with a number of my decisions,³ that the causal language used in the SABS-1994 is important. However, for reasons set out above, Mr. Kholi’s claim fails even if Amos applies directly — he does not meet the first part of the test.

In conclusion, I agree with the arbitrator that Mr. Kholi was not injured in an accident, as defined in the SABS-1994. He was the unfortunate victim of a crime of violence. As the arbitrator notes, the Criminal Injuries Compensation Board reached the same conclusion in granting Mr. Kholi’s application for compensation. Under its legislation, compensation is not available for an offence involving the use or operation of a motor vehicle unless the vehicle is used as the instrument of the assault.⁴

III. EXPENSES

Both parties seek their appeal expenses. The criteria to be considered are set out in Reg. 664 of R.R.O. 1990, as amended. They include each party's degree of success, the novelty and significance of the issues raised and the conduct of the parties in facilitating or obstructing the hearing. Although Mr. Kholi was unsuccessful, he raised an issue of significance. The scope of incidents covered by accident benefits has been particularly contentious, with his situation raising yet another twist on the analysis. He did not attempt to challenge the arbitrator's factual findings, focussing appropriately on the legal issues. In the circumstance, I conclude that the parties should bear their own appeal expenses.

At the time of the appeal hearing, the arbitrator had not yet released her decision on arbitration expenses. On January 13, 2000, she denied Mr. Kholi's claim for arbitration expenses based on his lack of success and because he fabricated and exaggerated much of his evidence. Counsel for Mr. Kholi then wrote to me, not alleging any error in this order, but asking that it be reversed if the appeal was successful. However, given the outcome, there is no reason to review the arbitrator's expenses order.