Neutral Citation: 2001 ONFSCDRS 150

FSCO A00-001143

BETWEEN:

GLADYS WATERS

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Shari Novick

Heard:

July 5, 2001, in Hamilton, Ontario.

Appearances:

Howard E. Katz for Mrs. Waters

Mark K. Donaldson for Royal & SunAlliance Insurance Company of Canada

The Applicant's husband, Gilbert Waters, died on January 20, 2000 as he was driving his automobile in Hamilton, Ontario. Mrs. Waters applied for death benefits and funeral expenses from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.¹

Royal disputed that the Applicant was entitled to the benefits sought. It took the position that Mr. Waters had not died as a result of an "accident," as that term is defined in section 2 of the Schedule. The parties were unable to resolve their disputes through mediation, and Mrs. Waters applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issue in this hearing is:

Did Mr. Waters' death result from an "accident" as defined in subsection 2(1) of the Schedule ?

Mr. Waters' death did not result from an accident as defined in subsection 2(1), and his application is therefore dismissed.

Facts:

Gilbert Waters died while driving his car on Barton Street, in the City of Hamilton on January 20, 2000. He was alone in the vehicle at the time. The police report indicates that his vehicle was travelling in an eastbound direction "when driver suffered an apparent heart attack. At a very slow speed ...[his vehicle] glanced at a large planter then a pole, coming to rest against a building." No other cars were involved in the collision.

A coroner's examination was conducted six hours after his death. The Report of Post Mortem Examination indicates marked and severe stenosis of his major coronary arteries. The coroner provides the following opinion on the cause of Mr. Waters' death:

Taking into account the circumstances of death it is my opinion that death resulted from a cardiac arrhythmia secondary to severe ischemic heart disease.

It was common ground that Mr. Waters had a pre-existing heart condition, for which he had been taking medication at the time of his death.

This preliminary issue was argued on the basis of the somewhat sketchy facts outlined above. I accept the coroner's opinion regarding the cause of Mr. Waters' death and find that he suffered what is commonly referred to as a heart attack as he was driving his vehicle on January 20, which caused his death. I also find, based on the coroner's report, that this resulted from his pre-existing heart condition.

Relevant definition:

Subsection 2(1) of the Schedule contains the definition of "accident" for the purpose of the Regulation. The relevant part of the definition states:

"accident" means an incident in which the use or operation of an automobile directly causes an impairment

As has been pointed out in many decisions on this issue, the wording of the above definition differs in one significant respect from that contained in the predecessor to this Schedule.²Whereas the definition in the earlier Schedule included incidents that were directly or indirectly" caused by the use or operation of an automobile, the current definition requires that the use or operation of an automobile be the direct cause of the impairment.

Case Law:

Several arbitration decisions have analysed the Bill 59 definition of "accident" and the manner in which it should be interpreted and applied. While the facts of each case differ, a consistent approach has been followed. Arbitrators have first determined whether the incident in issue involves the use or operation of an automobile, and if so, whether such use was the direct cause of the applicant's injuries. In Elensky and Royal & Sunalliance Insurance Company of Canada,³ I stated that these two questions should be considered together and that an applicant must show that the use or operation of a vehicle directly caused the injuries sustained.

The first decision interpreting the Bill 59 definition of "accident" was Petrosoniak and Security National Insurance Company.⁴ The definition of "direct cause" from the revised fourth edition of Black's Law Dictionary was referred to as an aid in determining the parameters of the phrase "directly causes" that appears in subsection 2(1). Direct cause is defined as,

the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source.

This definition has been referred to in many subsequent arbitration decisions on this issue. And, Justice Chapnik referred to it in Chisolm v. Liberty Mutual Group [2001] O.J. No. 3294, in reaching a determination that the victim of a drive by shooting" was not involved in an "accident" as defined by the Regulations. At this point, I think it is fair to say that criminal assaults such as the shooting in that case and the vicious assault against the driver of a truck in Elensky, constitute intervening and independent acts that break the chain of events or causation. The same finding was made in Sarkisian and Co-operators General Insurance Company,⁵ where the applicant was shot in an underground parking garage while he was performing maintenance on his car, as well as in both the Karshe and Non-marine Underwriters, Mbrs. Of Lloyd's⁶ and Kumar and Coachman Insurance Company⁷ decisions, in which taxi drivers were assaulted by passengers they had picked up.

Another relevant decision referred to by the parties is the appeal decision in Ekunah and Simcoe & Erie General Insurance Company,⁸ decided under the Bill 164 version of the Schedule. Although a broader causal relationship was permitted under that legislation, Director's Delegate Naylor determined that the mere fact that an automobile was the location of the injury or that an applicant was occupying it at the time of the injury was insufficient to find that the use or operation of the vehicle caused the injury.

Parties' submissions:

Counsel for the Applicant stated that it was undisputed that Mr. Waters was operating his vehicle at the time that he experienced the heart attack, although the exact connection between his operation of the vehicle and his death is unknown. He stated that it was possible that Mr. Waters' heart attack was triggered by the condition of the road or the actions of another driver, and that we simply did not know whether a factor like this caused the attack, or whether it occurred spontaneously and would have taken place if Mr. Waters had not been in his vehicle. Counsel contended that it was just as likely that his heart attack was caused by Mr. Waters' operation of the vehicle as not.

The Applicant contended that a liberal approach should be favoured when interpreting the provisions of the Schedule, over one that was technical and restrictive. She argued that given the purpose of the provisions of the Schedule, in these circumstances the Insurer should bear the onus of disproving that a direct link existed between the operation of the vehicle and Mr. Waters' death.

Counsel for the Insurer submitted that there was no evidence to support the argument that Mr. Waters' operation of the vehicle directly caused his death. He maintained that the onus remains on the Applicant to prove that the requisite test is met, and conceded that while the first part of the inquiry - whether Mr. Waters was operating the vehicle - was satisfied in this case, there was simply no basis for concluding that his operation of it was the direct cause of his injuries.

The Insurer also argued that it must be remembered that the Schedule sets out the parameters of coverage for automobile insurance, and that if certain circumstances do not fit within the prescribed definitions, relief must be sought elsewhere.

Findings:

I agree with the Applicant's contention that a broad and liberal approach should be taken when interpreting the provisions of the Schedule. This sentiment has been expressed in many arbitration decisions addressing various issues over the years, and has also been endorsed at the appeal level.⁹ However, adopting a broad interpretive approach does not mean that the clear and unambiguous wording of a definition provision can be ignored.

As in any other case, the Applicant here must prove, on a balance of probabilities, that she is entitled to the benefits sought. In order to do so, she must provide evidence to support the argument that the use or operation of Mr. Waters' vehicle directly caused his death. I can appreciate that in the circumstances, it is difficult to come up with such evidence. That does not mean, however, that the onus shifts to the Insurer to disprove the causal link alleged. Instead, I must base my decision on the evidence that exists and has been placed before me.

The two relevant pieces of evidence filed are the police report and the coroner's Post Mortem Examination report. Their combined effect makes it clear that Mr. Waters did not die as a result of his vehicle's collision with a large planter or pole. Rather, the inevitable conclusion to be drawn from the facts presented is that he had a heart attack that caused his death while he was driving his vehicle, and that the vehicle consequently veered off the road at a slow speed, hit a planter and pole and eventually came to rest against a building.

As stated in the Petrosoniak decision, a series of events can be the direct cause of an incident, as long as there is no intervening force or act. In this case, however, I find that Mr. Waters' heart attack represented the intervention of a force that emanated from "a new and independent source." That is precisely the type of act referred to in the Black's Law Dictionary definition of "direct cause," the effect of which is a break in the chain of causation. As a result, I am led to conclude that Mr. Waters was not involved in an "accident" as defined in subsection 2(1) of the Schedule.

The fact that Mr. Waters experienced his fatal heart attack while he was operating his vehicle, as opposed to while walking down the street, is simply not enough to bring these circumstances within the meaning of the term "accident" as defined in the Regulation. The Ekunah appeal decision is instructive on this point. It states:

The language of the Schedule requires a causal connection between the injury and the use of the vehicle...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 way. The use or operation of the vehicle must have caused the injury...

Mrs. Waters' application for arbitration is therefore dismissed.

EXPENSES:

The parties may contact the Commission within 15 days of this decision if they are unable to agree on the issue of expenses of this preliminary issue hearing.

October 18, 2001

Shari L. Novick Arbitrator

Date