Neutral Citation: 2001 ONFSCDRS 83

FSCO A00-000720

BETWEEN:

YURY ELENSKY

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Shari Novick

Heard:

December 19, 2000, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Henry Goldentuler for Mr. Elensky

Karen Murphy for Royal & SunAlliance Insurance Company of Canada

The Applicant, Yury Elensky, was injured when he was assaulted near the truck he was driving in Miami, Florida on June 17, 1999. He applied for statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.¹ Royal declined to pay any benefits, claiming that Mr. Elensky's injuries did not result from an "accident," as that word is defined in section 2 of the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Elensky applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue to be determined is:

Was Mr. Elensky injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?

Mr. Elensky was not injured as a result of an accident as defined in subsection 2(1), and his application is therefore dismissed.

Background

Mr. Elensky emigrated from Russia to Canada a few years ago. At the time of the accident he was working as a truck driver delivering loads throughout Canada and the United States. He testified at the hearing, with the assistance of a Russian interpreter. His evidence sets out the following relevant facts:

On June 17, 1999, Mr. Elensky was driving a truck carrying a load of small refrigerators and some frozen produce. He had previously driven from Toronto to Montreal, where some of the goods had been unloaded, and had then travelled to Miami where the second part of the load was to be delivered.

Mr. Elensky had been instructed to drive to an address on 17th Street in Miami. As he approached that street he decided to stop his truck on the side of the road to ask for directions. He testified that he had expected to be in a commercial area, but found himself in what appeared to be a residential area and wondered whether he had lost his way. He stopped his truck in the curb lane close to the intersection with 17th Street, got out of the truck, and crossed 17th Street to ask directions from passengers in a car waiting at the stop light on the other side of the road. Because his ability to communicate in English is limited, he showed them the address on the bill of lading he was carrying, and they drew a diagram indicating where he had to go. He stated that he left the engine of the truck running when he went to ask for directions.

Mr. Elensky then crossed the street and headed back to his truck. As he approached the vehicle he was confronted by two men who appeared from each side of the truck. Both men attacked him and tried to drag him into the bushes near where the truck was parked. He tried to grab onto the bumper of the truck, to avoid being dragged into the bushes. A struggle ensued in front of and beside the truck, culminating in him being struck on the head with the butt of a rifle and losing consciousness.

Mr. Elensky recalled regaining consciousness a short while afterwards and running towards the driver's side of the truck. He testified that he grabbed the driver's door handle and attempted to get into the cab, when he heard a gunshot, felt a pain in his chest, and realized that he had been shot by one of the assailants. He managed to enter the driver's cabin and put the engine in gear. He explained that he was bleeding and felt pain, but was able to drive a few blocks to a gas station. He pulled into the station, and asked the manager to call the police. He was then taken to hospital and treated for a gunshot wound to his upper chest.

The assailants took Mr. Elensky's watch, a gold chain he had been wearing around his neck, and his eyeglasses. They also stole a small videocamera, a camera, some cash and a small refrigerator from the driver's cabin of the truck. Mr. Elensky stated that he believed that the assailants had intended to steal the truck, but admitted that there was no evidence to support this assertion other than his own belief. He testified that the two men had said various things during the course of the assault, but that he was not able to understand them.

I accept Mr. Elensky's evidence with respect to the events that transpired. No other witnesses were called by either party. A police report from the Miami police department was filed, which contains certain facts that are inconsistent with his evidence. I prefer Mr. Elensky's version of events over those set out in the police report. Mr. Elensky speaks limited English, and it is unlikely that he was able to accurately recount the details of the events that transpired to the police. I note that the facts set out in a statement he provided to the adjuster from Royal in October 1999, a few months after the incident, are essentially consistent with his testimony at the hearing.

Relevant definition

Section 3 of the Schedule provides that the benefits set out in the regulation "shall be provided in respect of accidents that occur in Canada or the United States of America". There is no suggestion that Mr. Elensky is not entitled to benefits because the incident described above occurred outside of Ontario. Rather, the parties disagree as to whether or not the incident falls within the definition of "accident," as set out in section 2 of the Schedule. It states:

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

This definition mirrors that of the prior Schedule,² save for one important distinction. Whereas the prior definition 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.

The parties' submissions

The Applicant applied the "purpose test" and the "causation test" to the facts outlined above, in keeping with the traditional method of analysing whether or not an incident meets the definition of "accident".³ Counsel for the Applicant contended that both tests are met in this case. He submitted that the assault that caused Mr. Elensky's injuries took place in the immediate vicinity of the truck, satisfying the purpose test, and that it can be inferred that the motive of the attackers was to rob the Applicant as well as the contents of the truck, which leads to the conclusion that the assault was a direct result of his use of the truck.

The Applicant argued that there were no intervening factors which take the circumstances described outside the ambit of the definition of "accident" in the Schedule. Counsel contended that an unbroken chain of events commenced with Mr. Elensky's decision to leave the truck to ask for directions and ended with him being shot while he was attempting to re-enter the truck. He stated that the assault was a link in this chain of events, as opposed to being an independent or intervening act.

He cited my decision in Petrosoniak and Security National Insurance Company,⁴ and submitted that the role of the assailants in this case can be likened to that of the oil or hydraulic fluid found in that case to have been deposited by a vehicle on the road.

Counsel noted Arbitrator Blackman's comments in Assaf and Commercial Union Assurance Company⁵ to the effect that any action taken to avoid the consequences of an insured peril will not be regarded as an intervening cause. He also noted the finding in that case that the assault and struggle that Mr. Assaf was involved in "were not intervening causes" (at page 6), and contended that the same finding should be made in this case.

Counsel for the Applicant also noted that Mr. Elensky's most serious injury was the wound he sustained from the shot to his chest as he was attempting to re-enter the truck. He argued that opening the door to a vehicle in order to flee from an attack falls within the ambit of activities contemplated by the phrase "use or operation of an automobile," and submitted that as Mr. Elensky was shot while attempting to enter his vehicle, his injuries were directly caused by his use of the vehicle.

The Insurer acknowledged that Mr. Elensky suffered a terrible criminal assault, but urged me to find that the circumstances described did not fit within the definition of "accident" in the current Schedule. Counsel suggested that at first blush it does not appear that this incident would be one covered by an automobile policy, and contended that after the wording of the definition is carefully analysed against the factual backdrop presented, the same conclusion is reached.

The Insurer submitted that the substitution of the word "directly" for the phrase "directly or indirectly" in the current Schedule clearly indicates the Legislature's intention to narrow the scope of the definition of the word "accident." She claimed that Mr. Elensky's decision to leave the truck and ask for directions was not a normal or ordinary use to which automobiles are put, and took him outside of the "use or operation" part of the definition.

With respect to the second requirement in the definition, namely that there be a direct causal link between the use of an automobile and the impairment suffered, the Insurer contended that the chain of causation was broken when Mr. Elensky was attacked on his way back to the truck. Counsel noted that many of the assault cases decided under the more expansive definition of "accident" were not found to fit within the definition, unless the victims were actually inside their vehicles when the attacks occurred. Counsel submitted that the assault in this case represented an intervention from an independent source and was not directly caused by the use or operation of the vehicle.

Finally, counsel for the Applicant forwarded the case of Axa Insurance v. Markel Insurance Co. of Canada⁶ to me and to Insurer's counsel after the hearing was completed. While the case deals with the definition of "occupant" in the Insurance Act, he asserted that it was of assistance in this matter. I have reviewed this decision and do not find it to be relevant to the question before me.

Findings and decision

In determining whether or not the incident described above falls within the definition of "accident" found in section 2 of the Schedule, the wording of that section as well as the greater context in which it appears must be considered. It has long been accepted that the Schedule is remedial legislation which should be interpreted in a broad and liberal manner, and that technical, narrow interpretations of this or any other definition are not appropriate.⁷

In Petrosoniak, the first decision to address the current, narrower definition of "accident" found in the 1996 Schedule, I stated that the words that appear in the provision raise two questions — whether the use or operation of an automobile was involved in the incident, and if so, whether such use was the direct cause of the Applicant's injuries. In my view, these two questions must be considered together: it is not enough to show that a vehicle was being used or operated and then argue that a sufficient causal link exists. Rather, the Applicant must show that the use of the vehicle, or its operation, directly caused the injuries complained of.

I note Director's Delegate Draper's comments (at page 13) in Lenti, supra, upheld on judicial review,⁸ to the effect that the analysis undertaken by the Supreme Court of Canada in Amos, supra, cannot be applied directly to cases decided under the Schedule in view of the differing language in the relative provisions.⁹ Lenti fell to be decided under the previous Schedule, in which an applicant's injuries need only be caused "directly or indirectly" by the use or operation of an automobile. That reasoning is even more compelling in cases under the current Schedule, in which the relevant definition is even narrower.

In Petrosoniak, I referred to the definition of "direct cause" in Black's Law Dictionary (revised fourth edition), in order to determine the parameters of the phrase "directly causes." It states:

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.

After considering that definition I determined that Mr. Petrosoniak was injured as a direct result of his coming into contact with some fluid on the pavement while riding his bicycle, and that the fluid had been released by a motor vehicle. I found that his injuries resulted from an unbroken chain of causation that began with the operation of the truck that released the fluid, and concluded that the incident described fell within the definition of "accident" in the Schedule.

There have been four subsequent arbitration decisions in which four different arbitrators have considered the narrower definition of "accident" in the new Schedule.¹⁰ The approach taken in each of these cases is consistent with that set out in Petrosoniak. While the facts of each of the four cases are distinguishable from those of the instant case, two bear consideration as they also involve drivers of vehicles being assaulted.

In Karshe, Arbitrator Blackman found that a taxi driver's injuries, caused by a passenger striking him across the face with brass knuckles after a dispute over the payment of a fare, were not directly caused by the use or operation of the taxicab and hence the applicant was not involved in an "accident". Similarly in Kumar, Arbitrator Sandomirsky found that injuries suffered by a taxi driver resulting from being hit on the head by a rock wielded by a passenger during the course of an attempted theft were not directly caused by the use or operation of the vehicle. She also concluded that while the taxi was the location of the attempted robbery, it was not the cause of the applicant's injuries and that the incident therefore fell outside of the scope of the definition of "accident" .

I note that in both of the above cases, the arbitrators considered the weapons used to inflict harm to be the direct cause of the injuries suffered. They determined that the use of the brass knuckles (in Karshe) and the impact of the rock (in Kumar) did not flow directly from the use or operation of a vehicle but rather represented an intervening force, "working actively from a new and independent source" that broke the chain of causation and led to the conclusion that the use or operation of the vehicles did not directly cause the injuries sustained.

In this case, the assailants were more removed from the use or operation of the vehicle than were the attackers in either Karshe or Kumar. There was no commercial relationship between Mr. Elensky and the assailants, as was the case with the two taxi drivers. While the Applicant did operate his vehicle until shortly before the assault took place, there was no connection between the assailants and the truck that he was driving. I can only conclude that the terrible attack on Mr. Elensky by his assailants, who awaited him as he returned to his truck after seeking directions, represented a force emanating from "a new and independent source" and is the type of intervention referred to in the definition of "direct cause" cited above. The effect of that intervention is a break in the chain of direct causation.

I cannot agree with the Applicant's submission that the role played by the assailants in this case can be likened to that of the fluid deposited by the truck onto the roadway in Petrosoniak. In that case a direct link could be traced between the use of the truck and the applicant's injuries, through the medium of the fluid that fell onto the roadway. In this case, Mr. Elensky's operation of the truck for the purpose of delivering goods was interrupted by an unprovoked attack that was not directly linked to his use of the vehicle.

The Applicant relies on the arbitrator's comments in Assaf, supra, to the effect that any action taken by an insured to avoid an attack will not be regarded as an intervening cause, as well as the finding in that case that injuries suffered as a result of an assault while the driver was outside of his vehicle were caused by an "accident". Assaf was decided under the previous Schedule, which provided coverage for injuries caused either directly or indirectly by the use of a vehicle. That fact alone distinguishes it from this case. Further, the assault in that case followed an incident in which Mr. Assaf and another driver engaged in aggressive driving manoeuvres designed to intimidate each other. Both drivers then pulled over to the side of the road, got out of their cars and a skirmish ensued, during which Mr. Assaf fractured his leg. Arbitrator Blackman found that the operation of the vehicles triggered the sequence of events that led to the injuries suffered. In this case, the assailants had no contact with Mr. Elensky while he was driving the truck, and the assault, unlike the one involving Mr. Assaf, was completely unrelated to his operation of the vehicle. Given the different circumstances involved in the assaults, as well as the narrower scope of the definition of "accident" in the current Schedule, the decision in Assaf has no application to this case.

Counsel for the Applicant argued that the assailants attacked Mr. Elensky in order to steal the truck, and that that fact brings this incident within the ambit of the definition. I do not see how this intention can be gleaned from the evidence. The assailants stole Mr. Elensky's watch and neck chain during the struggle, as well as some cash, a camera, a small refrigerator and a videocamera from the driver's cab of the truck. I take from this that their motive was to steal cash and any items of value they could access. The evidence indicates that the assailants were able to enter the driver's cab and that the engine was left running when Mr. Elensky exited from the truck. Despite this and the fact that he lost consciousness for a period of time, the assailants did not attempt to drive away with the truck. I note Mr. Elensky's statement that he believed that the attackers intended to steal the truck, but in the absence of any supporting evidence, and in light of the facts noted above, I am not persuaded that this was their intention.

The Applicant also argued that the fact that he was shot as he was attempting to enter the truck to flee the scene of the assault brings him within the definition. I disagree. The fact that Mr. Elensky was in physical contact with the truck or was attempting to enter the vehicle as he was shot does not satisfy the requirement that the operation of the vehicle directly caused his injuries. As Director's Delegate Naylor stated in upholding Arbitrator Draper's decision in Ekunah and Simcoe & Erie General Insurance Company:¹¹

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

For the reasons expressed above, I am not persuaded that either the initial assault, or the gunshot wound sustained as Mr. Elensky was attempting to flee the scene, were directly caused by his use or operation of the vehicle.

There is no question that Mr. Elensky suffered a terrible attack that caused him injury and psychological trauma. I sympathize with him, and hope that he recovers fully from his injuries. Unfortunately, the circumstances that caused his injuries do not fit within the definition of "accident" in the current Schedule, and he is therefore not entitled to claim accident benefits.

The application for arbitration is therefore dismissed.

EXPENSES:

I exercise my discretion to award Mr. Elensky his expenses incurred in this preliminary issue hearing. If the parties are unable to agree on the amount payable, an assessment may be requested in accordance with Rule 77 of the Dispute Resolution Practice Code, Third Edition..

May 31, 2001

Shari L. Novick Arbitrator

Date