FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2003 ONFSCDRS 171
FSCO A03-000750
BETWEEN:
HARJINDER GREWAL
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
REASONS FOR PRELIMINARY ISSUE DECISION
Before:
Lawrence Blackman
Heard:
November 13, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.
Written submissions were received on November 5 and 6, 2003.
Appearances:
Ngozi A. Oti for Mr. Grewal
Christina Polano for Dominion of Canada General Insurance Company
Issues:
The Applicant, Harjinder Grewal, was injured on March 25, 2002. He applied for statutory accident benefits from Dominion of Canada General Insurance Company ("Dominion"), payable under the Schedule.1 Dominion takes the position that any impairment that may have been sustained by Mr. Grewal on March 25, 2002 was not as a result of an accident, as the latter term is defined in section 2 of the Schedule. The parties were unable to resolve their disputes through mediation and Mr. Grewal applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this preliminary issue hearing are:
Was Mr. Grewal involved in an accident within the meaning of subsection 2(1) of the Schedule?
Is Dominion liable to pay Mr. Grewal's expenses in respect of the arbitration, pursuant to subsection 282(11) of the Insurance Act?
Is Mr. Grewal liable to pay Dominion's expenses in respect of the arbitration, pursuant to subsection 282(11) of the Insurance Act?
Dominion’s entitlement to its expenses was added as an issue to this arbitration proceeding on the consent of both parties.
Result:
Mr. Grewal was involved in an accident within the meaning of subsection 2(1) of the Schedule.
If the parties cannot agree on the entitlement to or the amount of the expenses of this proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).
EVIDENCE AND ANALYSIS:
Agreed Facts
The relevant agreed facts, as orally amended and agreed to by both counsel at the hearing, are as follows:
The Applicant resides in a detached house in Brampton, Ontario with his wife, young children and mother-in-law.
The Applicant was renting out the basement of his home to two friends, Nalin and Dilina Seneviratna.
On March 25, 2002, at approximately 8:20 a.m., Mr. Grewal was sitting on the edge of his bed in his bedroom when he heard a loud noise and felt his home shake. He became concerned that part of his house had collapsed and was worried about the safety of his children.
Only later did the Applicant discover that the loud noise which he had heard had been caused by Nalin Seneviratna mistakenly driving her vehicle into the left side of the garage of the Applicant's home, causing property damage to the house.
After hearing the loud noise, Mr. Grewal ran from his bedroom and crossed the hallway in order to proceed down the stairs to find out what had happened and to check on his young children. The Applicant was in a great rush, causing him to trip and to slide towards the bannister where he hit the left side of his body and to subsequently fall down the stairs leading to the main floor. The Applicant did not fall over a specific object as he was running down the stairs.
As a result of hitting the bannister and falling down the stairs, the Applicant felt pain on his left side from his shoulders to his ribs and in his lower back.
Decision
In Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776, Laskin J., speaking for the Ontario Court of Appeal, considered the meaning of the term "accident," as defined in the present Schedule. He concluded that:
Legal entitlement to accident benefits . . . requires not just that the use or operation of a car be a cause of the injuries but that it be a direct cause . . . When one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act."
In this case, I find that the tenant’s car hitting Mr. Grewal’s house directly caused the Applicant’s subsequent injury, in the same manner as something knocking over the first in a row of blocks, after which the rest fall down without the assistance of any other act. More specifically:
the impact of the car colliding with the house led to
a loud noise and the Grewal home shaking, which led to
Mr. Grewal panicking, which led to
Mr. Grewal running to see what had happened and to check on his young children, which led to
Mr. Grewal tripping, not as a result of any specific object, but implicitly, due to his panic and haste caused by the car accident, which led to
Mr. Grewal being injured.
Laskin J. further held in Chisholm that:
An intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car.
In this case, I find that there was either no intervening act or, at the very least, there was no subsequent contributing cause that broke the chain of causation. There was no gun shot being fired as in Chisholm v. Liberty Mutual, no one tripped on cracked pavement as in Mahadan and Co-Operators General Insurance Company (FSCO A00-000489, March 15, 2001), no one was assaulted with brass knuckles as in Karshe and Non-Marine Underwriters, Mbrs. of Lloyd's (FSCO A99-000855, December 15, 2000).
Rather, the facts of this case resemble much more those in Souchuk and State Farm Mutual Automobile Insurance Company (FSCO A02-000309, November 27, 2002), decided by Arbitrator Bayefsky. In that case, Ms. Souchuk was driving on Highway 401 in tandem with another vehicle. The latter vehicle was struck by a third car. Ms. Souchuk brought her car to a stop in the right lane of the highway, flung open her car door and ran out of her car to see if her friends were injured. After running about four feet, Ms. Souchuk fell on the roadway and injured her left arm.
Arbitrator Bayefsky found that the vehicles provided more than the opportunity, location and motive for Ms. Souchuk's actions; rather, they were the central cause of her pulling over, getting out of her car and running from one vehicle to the next to determine if her friends had been injured in the accident. Arbitrator Bayefsky concluded that "[w]hile Ms. Souchuk's injury was not physically connected to the vehicles, I find that it was not the result of a new and independent force. It was directly related to, and caused by, the use and operation of a motor vehicle."
I further find the decision of Director's Delegate Makepeace in Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003) of assistance. That case involved Mrs. Seale's vehicle not being able to get traction on an icy road. Mrs. Seale got out of her vehicle, intending to push it. Before being able to do so, the vehicle slowly slid sideways down a hill. While in the process of walking down the hill to her car, Mrs. Seale slipped and fell on the ice. The Director's Delegate upheld the arbitral decision which had determined that Mrs. Seale was injured as a result of an accident as defined in the Schedule.
As found in Seale, I find that "the entire sequence of events [in Mr. Grewal's case] was one incident." I further find that the "use or operation of an automobile was the dominant feature of the incident."
Dominion argues that an automobile was only incidently or peripherally involved in Mr. Grewal's alleged injuries, as Mr. Grewal was not even aware that an automobile had hit his house when he tripped and fell down the stairs. I find that it was the noise and shaking of the house caused by the collision by the tenant's car that caused the subsequent chain of events. I view Mr. Grewal's lack of immediate awareness of the source of the noise and shaking as immaterial as if a pedestrian had been immediately struck dead in an accident without knowing what hit him or her.
Dominion further submits that the events that befell Mr. Grewal were unusual. It argues that, adopting a common-sense approach, policies of automobile insurance were not intended to cover unusual hazards which are unrelated to the use or operation of an automobile.
I agree that it is somewhat unusual for a car to run into a house. I also agree with Arbitrator Renahan in the arbitration decision in Seale and Belair Insurance Company Inc. (FSCO A01-000635, January 31, 2002) that the "definition of 'accident' does not require that the injury occur while the insured has physical contact with the vehicle. The question is where to draw the line."
If, in Mr. Grewal’s case, the vehicle had gone through a picture window and struck someone inside the house, there would be little question that the accident had caused any ensuing injuries. Here, the tenant's vehicle was in the vicinity of the fall, it is implicit that the impact and the fall were closely linked in terms of time and the collision caused property damage to the house. It is foreseeable that people might be in a house. It is further foreseeable that the somewhat unusual occurrence of a car hitting a house may cause those inside the house to panic. To use Arbitrator Renahan’s words, "[i]n my view, the slip and fall in these circumstances was a normal and reasonably foreseeable risk of motoring."
EXPENSES:
If the parties cannot agree on the entitlement to or the amount of the expenses of this proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).
December 2, 2003
Lawrence Blackman
Arbitrator
Date
Neutral Citation: 2003 ONFSCDRS 171
FSCO A03-000750
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
HARJINDER GREWAL
Applicant
and
DOMINION OF CANADA GENERAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mr. Grewal was involved in an accident within the meaning of subsection 2(1) of the Schedule.
If the parties cannot agree on the entitlement to or the amount of the expenses of this proceeding, they may request an appointment for a determination of same in accordance with Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001).
December 2, 2003
Lawrence Blackman
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.