Neutral Citation: 2003 ONFSCDRS 66

FSCO A02-001279

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BADREDDINE SAAD

Applicant

and

FEDERATION INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Judith Killoran

Heard:

February 11, 2003, in Ottawa, Ontario.

Appearances:

Mark K. Habib for Mr. Saad

Pat C. Peloso for Federation Insurance Company of Canada

Issues:

The Applicant, Badreddine Saad, was injured in a motor vehicle accident on January 24, 2002. He applied for statutory accident benefits from Federation Insurance Company of Canada ("Federation"), payable under the Schedule.¹ Federation denied all claims for accident benefits on the grounds that Mr. Saad was not injured as a result of an "accident" as defined by the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Saad 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 is:

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

Result:

1. Mr. Saad was injured as a result of an "accident" as defined in section 2(1) of the Schedule.

EVIDENCE:

Mr. Saad was 29 years old on January 24, 2002 when he was injured after falling on the ice at a PetroCanada station. He was returning home at 3:00 a.m. after having spent the evening visiting with his uncle. Although driving conditions were good, Mr. Saad was concerned that his vehicle seemed unbalanced. He decided to stop for gas at a station near his home and check his automobile tires. At the same time as Mr. Saad filled his tank with gas, he noticed that one of the tires needed air. After he returned from the kiosk where he had paid for gas, he moved his car to the side of the gas station where the air hose was located.

Mr. Saad parked his vehicle 3 to 4 feet from the curb. The engine was running although the automobile was parked. Mr. Saad walked 5 to 7 feet on icy ground to the air hose. He returned and filled the left front tire with air.

After Mr. Saad put the air hose back in place, he slipped when walking forward towards his car. Mr. Saad was very near to his car when he fell and his feet were under the car after the fall.

The ambulance report described Mr. Saad as found lying partly on the elevated curb on his back with no loss of consciousness. Mr. Saad described such intense pain in his upper back and neck that he screamed. The attendant in the gas station kiosk heard the screams and came running. He gave Mr. Saad his jacket and called an ambulance. When Mr. Saad was taken to hospital, x-rays were taken. He could not move his left arm, left leg or neck. He was in hospital for about five days and was discharged with medication.

Analysis:

"Accident" means an incident in which the use or operation of an automobile directly causes an impairment according to the SABS-1996. As pointed out by Director's Delegate Makepeace in Belair Insurance Company Inc. and Seale,² "use or operation" includes more than driving a vehicle and extends to loading, unloading and delivering cargo, fuel delivery, refueling, changing a tire, and repair and maintenance.

The language of the 1996 legislation differs dramatically from the earlier legislation by deleting any reference to "indirectly" causing an impairment. The definition of "accident" in section 2(1) is narrower than its predecessors, which provided coverage where use or operation of an automobile "directly or indirectly" caused an impairment.

Before 1996, the leading case was Amos v. Insurance Corporation of British Columbia,³ which involved a driver who was attacked and shot. The Amos decision talked about a two-part test which looked at the purpose, which had to be ordinary and well-known and some nexus or causal relationship with the vehicle.

In Chisholm v. Liberty Mutual Group,⁴ which involved a drive-by shooting, Laskin J.A. confirmed that the broad "some causal connection" test set out in Amos does not apply to the narrower definition of "accident" in the SABS-1996. Justice Laskin also said: "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 - if it is 'part of the ordinary course of things.'" Going further, he said: "Conceivably road accidents may occur where there is more than one direct cause of a victim's injuries and one of the direct causes is the use or operation of an automobile." Justice Laskin's emphasis is on a train of events leading to a result without a later intervening act.

In Kumar and Coachman Insurance Company,⁵ Director's Delegate Makepeace affirmed the arbitral consensus that the broad "some causal connection" test found in Amos does not apply to the "accident" definition in the SABS-1996. She adopted the definition of "direct cause" that was accepted in Petrosoniuk and Security National Insurance Company⁶ and applied in other cases, including TTC Insurance Company Ltd and Correia⁷ That is:

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.

Consequently, if an unbroken chain of events involving the use or operation of an automobile leads to an injury, the injury can be said to have been directly "caused by the incident."

In Kumar, which involved an assault on the driver in the course of a robbery, Director's Delegate Makepeace confirmed that the vehicle did not play a central enough role. In Correia, the applicant was injured during treatment after a car accident. Director's Delegate Naylor upheld the finding that the motor vehicle accident was a direct or proximate cause of the injuries.

In Liu and Lombard General Insurance Company of Canada⁸ Mr. Liu was a passenger on a bus going to a casino when the bus was hijacked and the passengers robbed. Mr. Liu was assaulted in the course of the robbery. The arbitrator ruled that this was an "accident" because "the attack on Mr. Liu was not a later intervening act but an integral part of a well-calculated premeditated plan to both overtake the bus and rob its passengers." Three principles were enunciated: the vehicle had to be a direct cause, requiring a central or dominant role; the vehicle did not have to be the only or the most immediate cause; and the direct cause must set in motion the train of events, and instrumental enough to satisfy the term direct. An unbroken line of causation was required.

Use or operation of the automobile generally continues while the person gets out of the car or off the bus, as long as physical contact is maintained. The result is less clear once the person moves away from the automobile. It is easier to define when "use or operation" begins than when it ends.

The cases considered by the Commission involving injuries sustained while getting into or out of an automobile or walking towards or away from an automobile, have been quite fact-specific.

In Shantz and Dominion of Canada General Insurance Company,⁹ the applicant was driving to a parking garage where the car door was left open with the motor running. When the driver returned the car was rolling down the hill. The driver tripped and fell beside the driver's door with no contact with the car. The arbitrator found that there was nothing extraordinary in the driver trying to prevent the car from colliding as this action fit within the use and operation of a motor vehicle.

Souchuk and State Farm Mutual Automobile Insurance Company¹⁰ involved a woman driving home who pulled over due to an accident in front of her automobile and fell when running. The arbitrator saw the series of events as a single set of incidents. The automobile played a central role from start to finish. Director's Delegate Makepeace designates these cases as the "interrupted journey" cases. I believe that Mr. Saad's case falls into this category.

The issue for Mr. Saad is whether his injuries resulted from an uninterrupted chain of events which began with the use and operation of his automobile, or whether they resulted from an intervening act, independent of the chain of causation created by the automobile. The question is: What constitutes an intervening force or event? In my opinion, it must be a new act independent of the chain of causation.

In Seale and Shantz, there were emergency situations with serious risks and a continuous chain of events set in motion by the use and operation of a motor vehicle. These cases establish that direct cause is not simply linked to closeness in time. In both these cases, the vehicle began the chain of events forcing the victims to respond. The risk arises from both vehicles being out of control. In Mr. Saad's case, we do not have the same urgency or risk, although Mr. Saad submitted that the reason he stopped at the gas station was as a result of his unbalanced tires and the consequent risk.

As in the Seale and Shantz cases, Mr. Saad was not in his vehicle, alighting from it, or touching it when he fell. He was not struck by another vehicle. Federation submits that the ice was an "intervening cause". While I agree that the ultimate question under the Schedule is whether the use or operation of an automobile directly caused damage or injury, in my view, Mr. Saad's injuries were not independent of the chain of events.

In Seale, Director's Delegate Makepeace offers useful guidance for this case. She stated that the factors of time, proximity, activity and risk are important in defining the incident that resulted in the injury. She goes on to say: "It is clear that 'direct cause' need not be the only cause, that physical contact with an automobile is not required, and that a subsequent contributing cause may not break the chain of causation if it is 'part of the ordinary course of things.'"

Mr. Saad was travelling home and engaging in ordinary and well known activities involving the use and operation of a motor vehicle which directly caused his accident. The time, proximity, activity and risk with a subsequent contributing cause have not broken the chain of causation. As has been held in the past, direct cause does not mean the only cause or the most immediate cause. There was a sufficient nexus in this case between the use and operation of a motor vehicle with an unbroken chain of events.

Mr. Saad's fall occurred when he was engaged in an ordinary activity of filling his car with gasoline and then his tires with air. He did all of the usual things when he noticed that his tire had lost air. He fell because the pavement was icy, but the icy pavement, in my view, was a subsequent contributing cause which did not break the link in the chain of causation. I find that the use or operation of an automobile was the dominant feature of the incident. Therefore, Mr. Saad was injured as a result of an "accident" as defined in section 2(1) of the Schedule.

EXPENSES:

I exercise my discretion to award Mr. Saad his expenses incurred in this preliminary issue hearing.

April 24, 2003

Judith Killoran

Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 66

FSCO A02-001279

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

BADREDDINE SAAD

Applicant

and

FEDERATION INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Saad was injured as a result of an "accident" as defined in section 2(1) of the Schedule.

2. Federation shall pay Mr. Saad his expenses incurred in this preliminary issue hearing.

April 24, 2003

Judith Killoran

Arbitrator

Date

Footnotes

1. 1The 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.
2. 2(FSCO P02-00005, January 28, 2003)
3. 31995 CanLII 66 (SCC), [1995] 3 S.C.R. 405
4. 42002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (August 15, 2002), affirming [2001] O.J. No. 3294 (Ont. S.C.J.)
5. 5FSCO P01-00026, August 9, 2002) An application for judicial review is pending in Kumar.
6. 6(FSCO A98-000198, November 2, 1998)
7. 7(FSCO P00-00061, July 16, 2001)
8. 8(FSCO A01-001429, October 4, 2002), under appeal
9. 9(FSCO A01-001147, May 13, 2002)
10. 10(FSCO A02-000309, November 27, 2002), under appeal