Neutral Citation: 2003 ONFSCDRS 80

FSCO A02-000952

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JOSEPH IRVING

Applicant

and

CGU INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Joyce Miller

Heard:

By telephone conference call on March 26, 2003.

Appearances:

Sandev Singh Purewal for Mr. Irving

Claude Blouin for CGU Insurance Company of Canada

Issues:

The Applicant, Joseph Irving, was injured as a result of an incident which occurred on September 22, 2001. He applied for statutory accident benefits from CGU Insurance Company of Canada ("CGU"), payable under the Schedule.¹ CGU refused to pay Mr. Irving any accident benefits on the basis that Mr. Irving was not involved in an "accident" as defined in subsection 2(1) of the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Irving 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. Irving injured as a result of an "accident" as defined in subsection 2(1) of the Schedule?

Result:

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

2. If needed, I may now be spoken to on the issue of expenses.

EVIDENCE:

Agreed Statement of Facts

The parties filed the following agreed statement of facts:

1. The Applicant, Joseph Irving (D.O.B. October 20, 1985) was at all material times a dependant of his mother Judy Irving.

2. Judy Irving was at all material times an insured person with CGU Insurance Company of Canada under automobile insurance policy number A55127337.

3. Joseph Irving was injured on September 22, 2001, at approximately 10:40 pm while he was riding his bicycle home from his part-time job at Zehrs.

4. Joseph was riding his bicycle northbound on Janette Avenue in Windsor, Ontario.

5. Moments before the accident, Irving had been forced to slow down almost to a complete stop when a southbound car turned left across his path into a driveway on the east side of the street.

6. Joseph was just starting to speed up again when he saw a westbound pick up truck turn left from Caroline Street southbound onto Janette Avenue.

7. He then saw the driver's arm come out of the open driver's window followed by an upward movement of the driver's arm. Something with fluid in it came out of the driver's hand, but Joseph had no idea what it was, since the headlights of the oncoming truck were in his eyes.

8. The aforementioned object was later found to be a full, or near full, bottle of beer (by the police).

9. Joseph was struck on the left eye and forehead with the beer bottle.

10. The said beer bottle shattered when it struck Joseph's face/head, causing severe lacerations to the left front area of his head and further lacerations to his left leg.

11. The (unidentified) pickup truck left the scene without stopping.

12. Joseph was taken by ambulance to Metropolitan Hospital emergency, where 72 stitches were put into his face and a further 8 stitches were put into his left leg.

13. Dr. Curran, Opthamologist also performed a surgery on Joseph's left eye on September 23, 2001, involving placing 15 stitches into Joseph's left eye to repair a large corneal laceration.

14. John Doe, the driver of the oncoming vehicle (a 1999 Ford pickup truck), was later charged and convicted of aggravated assault and assault with a weapon by the police. He was a 17 year old minor who cannot be named under the Young Offenders Act. Shortly after the assault on Joseph, John Doe threw another beer bottle at a 44 year old Windsor man and hit his van. This man then called the police which lead to the arrest of John Doe.

In addition to the agreed statement of facts, Mr. Irving filed a report by a Forensic Engineer, an expert on motor vehicle accident reconstruction, Mr. Peter G. Keith. CGU did not oppose the expertise of Mr. Keith but opposed the filing of his report on the basis that the report was not relevant to the proceeding. I found that the report was clearly on point and relevant and admitted it as evidence on behalf of Mr. Irving.

Mr. Irving relies on Mr. Keith's analysis of the accident and his conclusion. In arriving at his conclusion Mr. Keith considered the following documents:

• Charge Summary Follow-Up prepared by the Windsor Police Service.

• Medical documentation regarding the injuries to Joseph Irving, along with photocopies of photographs of his facial injuries.

• Statement of Joseph Irving.

• Newspaper clippings referencing the incident.

From this documentation Mr. Keith concluded the following accident analysis:

The typical turning speed of a car or pickup truck in an intersection is in the range of 20 - 25 km/h, so by the time the driver lobbed the beer bottle from the window the speed of the truck had probably increased to about 30 km/h (25 - 35 km/h), or 8.3 metres/second (7.0 - 9.7 metres/second). Irving's description of the accident suggests that the driver lobbed the bottle underhand from the driver's window. In view of the difficulty of lobbing a bottle in this manner, and the probability that the driver was right-handed, the speed of the throw itself was probably only about 1.5 - 2.5 metres/second. The speed of the bicycle is estimated to be about 10 - 15 km/h, based on Irving's evidence that he was just starting to speed up after having to brake almost to a halt to avoid a car turning left across his path. These assumptions put the closing speed of the truck and the bicycle at about 42 km/h (35 - 50 km/h), or 12 metres /second (10 - 14 metres/second). When the throw speed of the bottle is added to the closing speed, the actual impact speed of the bottle would have been about 50 km/h (40 - 59 km/h), or 14 metres/second (11 -16 metres/ second).

If the bottle had been lobbed underhand by a pedestrian on the sidewalk, the impact speed of the bottle would have been about 20 km/h (15 - 25 km/h), or 5.5 metres/second (4.3 - 6.7 metres/second). Accordingly the impact speed of the bottle thrown from a moving pickup truck was roughly two and a half times as high as it would have been if it had been thrown by a pedestrian.

The medical evidence indicates that the beer bottle broke when it struck Irving's face, so that it produced severe lacerations not only to the left side of his face but also to his left leg. If the bottle had been thrown by a pedestrian, it is most unlikely that it would have shattered when it struck Irving's face, and so this impact would most likely have produced only bruising and perhaps some minor lacerations to the left side of his face.

Accordingly, the fact that the bottle was thrown from a vehicle moving at about 30 km/h, (25 - 35 km/h) was a major factor contributing to the severity of the impact by the bottle and the resulting injuries to Joseph Irving.

CGU did not provide an expert's report or any additional evidence.

Submissions:

Mr. Irving's Submissions

Mr. Irving submits that he was injured as a result of an "accident" which is defined in subsection 2(1) of the Schedule as "an incident in which the use or operation of an automobile directly causes an impairment."

Mr. Irving asked that I accept Director's Delegate Naylor's caution in TTC Insurance Company Ltd. and Correla² against taking too narrow a reading of the definition of "accident." In this decision, she stated:

It is well established that SABS is to be given a liberal construction... "Accident" is defined in terms of an incident or event involving an impairment. Certain consequences may result from or flow from such an event, giving rise to entitlement to benefits. I find it most plausible that the move to direct cause was intended to reinforce the involvement of the automobile in relation to an injury in the context of an original accident.

Mr. Irving submits that in his case there was a direct involvement by the truck in relation to his injuries that amounted to an accident under the Schedule. Mr. Irving states that at all times Mr. Doe was in control of his truck and that the truck played an integral part in the assault on him. The truck's role was central and dominant to his injuries. While the beer bottle was the immediate cause, the truck, nevertheless, was a direct cause of his injuries. That is, both the beer bottle and the truck directly caused his injuries.

In support of his view, that there can be more than one direct cause, Mr. Irving relies on the Court of Appeal decision in Chisholm v. Liberty Mutual Group.³ In that case, the driver of a car was shot and seriously injured in a drive-by shooting. The Court of Appeal upheld the decision of Justice Chapnik⁴ that the assault on Mr. Chisholm was not an "accident" as defined in the Schedule. Mr. Irving pointed out that in this decision Justice Laskin stated that, ".. 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."

Mr. Irving agrees that on the facts in Chisholm, the shooting of the driver in his car was an independent intervening act and not an "accident." However, Mr. Irving submits, the facts in Chisholm can be distinguished from his case. In Chisholm, the direct cause of Mr. Chisholm's injuries was a gun shot wound. Unlike a beer bottle, a gun by its nature will inflict significant harm.

In his case, when Mr. Doe threw the full or near full bottle of beer at him, that was not an independent intervening act. Rather, the severity of the impact of the bottle shattering on his face needed the additional velocity of the moving truck. That is, Mr. Doe effectively used his truck as a weapon in conjunction with the beer bottle. Once the bottle was thrown, Mr. Doe quickly escaped using his truck as a means of escape.

Mr. Irving submits the truck was critical and essential to his injuries, not only as a weapon but as a getaway vehicle to escape the scene of the crime.

In support of his position, Mr. Irving relies on the principles in the case of Liu and Lombard General Insurance Co. of Canada.⁵ In that case, the victim was injured as a result of a pistol whipping by hijackers of a bus that was going to a casino.

Arbitrator Baltman reviewed the case law that had considered the new definition of "accident" under Bill 59 and articulated the following principles:

• For a vehicle to be a direct cause of an injury it must play a central or dominant role in the incident, not peripheral.

• A direct cause does not mean the only cause, or the most immediate cause.

• A direct cause is a cause which set in motion a train of events leading to a result, without any later intervening act.

Applying these principles, Arbitrator Baltman concluded that Mr. Liu was injured as a result of an "accident." She stated that on the facts of the case, "... it cannot be said that the vehicle's involvement was in any way peripheral or merely, as in other cases, the 'site, opportunity or motive.' Here, [the vehicle] effectively became a prison, a weapon and a getaway vehicle, and thus played a central role in the robbery that led to Mr. Liu's injuries."

Mr. Irving submits that while he relies on the principles in the Liu case, the facts in his case are stronger than in the Liu case. In Liu, one could find that the pistol whipping of Mr. Liu was a later intervening act. However, in his case the impact of the throwing of the beer bottle cannot be separated from the acceleration provided by the moving truck.

Mr. Irving submits that the Forensic Engineering report's assumption of the speed of the truck when it turned the corner and drove down the street, although reasonable, was quite conservative. However, even at this conservative speed, the role of the truck was crucial. In Mr. Irving's view, at the time Mr. Doe threw the bottle, he was seated in his truck with his right hand on the steering wheel. The bottle was thrown underhand with his left hand while the truck was moving towards Mr. Irving. On the facts of this case, the Forensic Engineering report reasonably concludes that the shattering of the "full or nearly full " beer bottle on his face and the seriousness of his injuries clearly required the contribution of the velocity of the moving truck.

Mr. Irving submits that the Appeal decision in Kumar and Coachman Insurance Company⁶confirms that the Schedule does not exclude automobile insurance coverage for injuries caused by assault. In that case, Director's Delegate Makepeace held that where an "... automobile played a central and ongoing role in the commission of the assault," it may be considered an "accident" under the Schedule.

In summary, Mr. Irving submits that Mr. Doe's truck played a central and ongoing role in the commission of his assault. Mr. Doe effectively used his truck as a weapon in conjunction with the beer bottle. The truck's role was not incidental or peripheral to the assault but played a dominant role in the incident and, along with the beer bottle, was a direct cause of his injuries. Accordingly, Mr. Irving submits that he was injured as a result of an "accident" as defined in the Schedule.

CGU's Submissions

CGU submits that Mr. Irving was clearly a victim of an assault and not an "accident." CGU submits that the 1996 amendment to the law clearly intended to limit access to accident benefits by eliminating the word "indirectly" and limiting the definition to "directly" causing the impairment. The post-November 1996 case law, including the Court of Appeal decision in Chisholm, has held that the 1996 legislation brought in a narrower and more stringent causation requirement and an applicant must now show that the use or operation of a car "directly" caused his or her injuries.

CGU submits that the vehicle in this case had nothing to do with the assault by Mr. Doe. The vehicle was merely the platform used to launch the bottle as a projectile. The truck provided a cover for Mr. Doe and a means of escape.

CGU submits that the Liu case, which found that an assault was an "accident," can be distinguished from this case in that the arbitrator found that the bus in the Liu case was used as a prison and thus the use or operation of the vehicle was an integral part of the injuries inflicted on Mr. Liu.

CGU submits throwing a beer bottle is not in the ordinary course of operating a motor vehicle. In the present case the throwing of the beer bottle was a new independent and intervening act.

CGU submits that little weight should be given to the Forensic Engineering report which concludes that the velocity of the moving truck contributed to Mr. Irving's injuries as the report's findings are all based on assumptions with no corroborating objective evidence.

CGU submits a person standing on the street could throw a beer bottle at a passing bicyclist with a great deal of velocity that can cause serious harm. It gave the example of a baseball pitcher who could reasonably throw a ball at the speed of 220 kilometres per hour. Similarly, it is plausible that a healthy young offender standing on a sidewalk could throw a beer bottle at the speed of 50 kilometres an hour.

In summary, CGU submits that Mr. Irving was the victim of an assault and not an "accident" as defined in the Schedule. The throwing of the bottle was an intervening act and was not in the ordinary course of operating a motor vehicle. The truck was merely the platform used to launch the bottle. It did not "directly cause" Mr. Irving's injuries.

The Law:

Subection 2(1) of the Schedule, which was enacted on November 1, 1996, defines "accident" as follows:

"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 medial or dental device.

Prior to November 1, 1996, the definition was more expansive in that it encompassed impairments caused "indirectly or directly" by the use or operation of an automobile. The post-November 1996 definition limited the definition to "directly causes."

In the recent Court of Appeal decision of Chisholm and Liberty Mutual, Mr. Justice Laskin clearly confirms that the new definition of "accident" significantly narrows the scope of what can be considered an accident in comparison to the definition prior to November 1996.

The leading case in interpreting the new definition is Petrosoniak and Security National Insurance Company.⁷ In that case, Arbitrator Novick found that the deletion of the word "indirectly" from the definition now required that there be a direct link between the circumstance that caused an injury and the incident. In interpreting the new definition of "accident," Arbitrator Novick adopted the definition of "direct cause" found in Black's Law Dictionary where the phrase was 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 interpretation of "directly causes" has been consistently adopted by both arbitrators and judges in interpreting the post November 1996 definition of "accident."

A number of arbitration cases have discussed the new definition in depth and its effect on the concept of what is an "accident" post November 1996. Director's Delegate Makepeace's decision in Kumar and Coachman provides a comprehensive in-depth analysis of the pre and post November 1996 definitions and the applicable cases. I have chosen not to repeat the analysis already well stated in that case and other decisions. (See cases listed below). Instead, I have relied on them to extract the following propositions applicable to dealing with the issue of what is an "accident" pursuant to subsection 2(1) of the Schedule. These are:

• The use or operation of a motor vehicle must directly cause the impairment.⁸

• A direct cause is a cause which sets in motion a train of events leading to a result without any later intervening act.⁹

• Direct cause does not mean the only cause or the most immediate cause. There can be more than one direct cause of a victim's injuries, and one of the direct causes is the use or operation of an motor vehicle.¹⁰

• The motor vehicle need not come into direct physical contact with the victim.¹¹

• The role played by the motor vehicle must be more than just the location, opportunity or motive of the incident.¹²

• The motor vehicle must be a dominant feature in the incident, and not ancillary to it.¹³

• In order for a motor vehicle to be part of an assault the motor vehicle must play a central and ongoing role in the commission of the assault beyond providing the opportunity and location.¹⁴

These propositions were all considered and are incorporated in my analysis of the facts in this case.

ANALYSIS AND FINDINGS

The burden of proof rests with Mr. Irving to prove, on a balance of probabilities, that the use or operation of a motor vehicle "directly caused" his injuries and as a result he was involved in an "accident" pursuant to subsection 2(1) of the Schedule.

For the following reasons I find that Mr. Irving has discharged his burden.

This was not a typical accident. The facts in this case are unique. They differ from all other " assault-accident" cases decided after November 1, 1996. In those cases the victims were either drivers or passengers of a motor vehicle. Except for one case, all of the assault cases, including the Court of Appeal case in Chisholm, found that the vehicle merely provided the location, opportunity or motive for the assault. The weapon of assault, whether it was the use of a gun, brass knuckles or knife, was found in each case to be a new intervening act, independent of the use or operation of the vehicle and which clearly broke the chain of causation.

The Liu case is the exception to this general rule. In that case, even though the motive of the hijacking of the bus was to rob the passengers and the bus provided the opportunity and location for the robbery, Arbitrator Baltman found that the assault on Mr. Liu, who was pistol whipped by one of the hijackers, was an "accident" within the definition of the Schedule. She found that the bus was being used as a weapon, a prison and a means of escape for the assailants and "thus played a central role in the robbery that led to Mr. Liu's injuries." Succinctly, she found in those circumstances there was a direct causal connection between Mr. Liu’s injuries and the use and operation of the bus.

The present case can be distinguished from all of the other cases, including Liu, in that the victim, Mr. Irving, was not a passenger or a driver of a vehicle, but a bicyclist cycling down the street. Neither was the truck the location, motive or opportunity for the assault.

CGU submits that the truck was merely the platform for the assault and that there was no direct causal connection between the truck and Mr. Irving’s injuries. I disagree.

In my view the truck was significantly more than a platform. I find that throughout the sequence of events in this incident, the truck played a central and ongoing role in the commission of the assault. There is, to be discussed in more detail below, clearly an unbroken line of causation beginning with Mr. Doe driving his truck around and throwing bottles at people, the force of the moving truck contributing to the shattering of the beer bottle on Mr. Irving's face, and the truck allowing Mr. Doe to make a quick escape without being caught. As noted in the agreed statement of facts, Mr. Doe was only caught when he threw a beer bottle at another man and the man called the police.

A good analogy to this incident is that of a "hit and run" without the truck physically touching Mr. Irving.

The phrase "directly causes" does not necessarily mean that there must have been a physical connection between the truck and Mr. Irving's injuries. I agree with Arbitrator Bayefsky's finding in Souchuk and State Farm¹⁵ wherein he stated:

While the Legislature has clearly attempted to narrow coverage by replacing the previous "directly or indirectly ... causes" with "directly causes" there are still a variety of situations in which the use of a car can directly give rise to injuries without a person being in contact with the car or any part of the car.¹⁶

In Petrosoniak, Arbitrator Novick held that "... a series of events can be the direct cause of an incident, as long as there is no intervening agency or act. 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."¹⁷

On the facts of this case, one cannot say that when Mr. Doe threw the full or nearly full beer bottle which shattered on Mr. Irving's face, the role of the truck had ended and the beer bottle was a new independent intervening act. While the shattering of the bottle on Mr. Irving's face was the immediate cause of his injuries, I find that it is more likely than not that the force of the velocity of the moving truck significantly contributed to his injuries. Succinctly, the moving truck, far from being a platform for the assault, in fact enhanced the velocity of the bottle creating a greater force on impact.

I am reinforced in my view not only because it concurs with the conclusion in the report of the Forensic Engineer, but because it can be reasonably inferred from the known facts in this case discussed below.

Although I agree with CGU that the Forensic Engineer’s Report is based on assumptions that are not corroborated by any objective evidence, there are, however, some relevant assumptions that I find reasonable. Before discussing these reasonable assumptions I would like to note some of the assumptions by both parties I give little weight to.

First, I give little weight to the report’s assumptions that Mr. Doe was right handed and that when he threw the bottle with his left hand it was probably at the speed of 1.5 - 2.5 metres per second. There is no objective evidence to corroborate whether Mr. Doe was right handed. This is a fact that could have been corroborated, but was not.

I also give little weight to the report's assumptions of what the speed of an underhand throw would be by some hypothetical pedestrian on the sidewalk and the kind of injury that would result from the throw.

Similarly, I also give little weight to CGU’s submission that a healthy young offender standing on a sidewalk could throw a beer bottle at a velocity of 50 kilometres an hour. In my view, these hypothetical assumptions have little relevance to the issue in this case, namely, whether the truck directly caused Mr. Irving’s injuries.

Although I give little weight to some of the assumptions in the Forensic Engineering Report which are not within Mr. Keith’s knowledge or expertise, I do, however, accept Mr. Keith’s assumption that the truck as it turned the corner was travelling at a speed of 25 to 30 kilometres an hour was reasonable. I also accept Mr. Keith's conclusion that the velocity of the moving truck contributed to Mr. Irving’s injuries to be reasonable. I accept this assumption and conclusion as not only being reasonable to any ordinary person who drives a motor vehicle, but also because of Mr. Keith's considerable expertise.

Mr. Keith, as is noted in his curriculum vitae,¹⁸ is a highly experienced mechanical automobile engineer. He has been a mechanical automobile engineer for over 40 years and has 20 years of experience in motor vehicle accident reconstruction. I find his conclusion that the velocity of the moving truck when it came upon Mr. Irving riding his bike in the opposite direction contributed to Mr. Irving’s injuries to be consistent with the facts of this case.

On the facts of this case, at the time Mr. Doe threw the bottle, he was seated in his truck engaged in one of the most ordinary use or operation of a motor vehicle, namely, driving his truck down a street. One can reasonably infer that in the ordinary course of operating a motor vehicle this would require Mr. Doe to have one foot on the gas pedal and his right hand on the steering wheel at the time he threw the beer bottle with his left hand. To conclude otherwise would mean that Mr. Doe would be steering with his left hand and having to cross his right arm over his left arm to throw the bottle. This would be a significantly awkward movement and not reasonable in the circumstances of this case.

However, no matter which hand Mr. Doe threw the bottle with, I find that his position in the truck made it unlikely that his body was the sole cause of the full force of the bottle shattering on Mr. Irving’s face.

Although the throwing of the beer bottle by Mr. Doe was an intentional act, it was also a random act. That is, when the truck turned the corner and Mr. Doe came upon Mr. Irving, Mr. Irving was a total stranger riding his bicycle in a completely vulnerable and disadvantaged position in relation to the truck which was coming at him in the dark with its headlights glaring in his eyes.

As noted in the agreed statement of facts, things happened very quickly. Mr. Irving saw Mr. Doe's arm make an upward movement, but because of the headlights glaring in his eyes he had no idea what was in Mr. Doe's hand. Mr. Irving was then immediately struck with the bottle. He had no time to take any defensive action.

The beer bottle full or nearly full with liquid was thrown under handed from an open window. Clearly, even if Mr. Doe threw the bottle with his dominant hand (something we do not know), and at the same time he was keeping control of the moving truck with his other hand on the steering wheel and his foot on the gas pedal, and given the suddenness that he came upon Mr. Irving, I find that it is more likely than not that he would have had little opportunity to gather much physical leverage to throw the bottle with the intensity sufficient to cause the degree of injury in this case.

I, therefore, agree with the Forensic Engineer’s report that in this situation it is reasonable to infer that the velocity of the moving truck played a central role in contributing to the severity of the impact of the bottle shattering on Mr. Irving’s face and the resulting injuries to Mr. Irving. I find it is reasonable to conclude from this that the beer bottle was not a new, intervening and independent act that broke the chain of causation, but that the truck also directly caused Mr. Irving’s injuries.

In summary, I find that this atypical accident was like a "hit and run" accident without the truck physically touching Mr. Irving. I find that on the facts of this case both the truck and the bottle were used as weapons¹⁹ in the assault and they both directly caused Mr. Irving's injuries. Although the beer bottle was the immediate cause of Mr. Irving's injuries, it was not the only cause. I find that Mr. Irving’s injuries were also directly related to, and caused by, the use and operation of a motor vehicle. I find that the truck in its ordinary use and operation created a force with its velocity that contributed to the seriousness of Mr. Irving's injuries. Succinctly, I find that the chain of causation regarding the role of the truck was not broken once the beer bottle was thrown. I find that throughout the sequence of events the truck played a central and ongoing role in the commission of the assault.

Accordingly, I find that Mr. Irving was involved in an "accident" pursuant to subsection 2(1) of the Schedule.

EXPENSES:

If needed, I may now be spoken to on the issue of expenses.

May 21, 2003

Joyce Miller

Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 80

FSCO A02-000952

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

JOSEPH IRVING

Applicant

and

CGU 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. Irving was injured as a result of an "accident" as defined in subsection 2(1) of the Schedule.

2. If needed, I may now be spoken to on the issue of expenses.

May 21, 2003

Joyce Miller

Arbitrator

Date

• Professional Engineer with Degree in Mechanical Engineering, Diploma in Automobile Engineering, Master of Science in Automotive Studies

• President, Keith & Associates Forensic Engineers

• Mechanical/Automobile Engineer since 1960

• Employed full-time in motor vehicle accident reconstruction since 1983

• Chief of Advanced Engineering Projects, Road & Motor Vehicle Traffic Safety Branch, Transport Canada, Ottawa, 1972-1981

• Directed national accident and defect investigations for Transport Canada

• Assisted in the evaluation and development of the current Canada Motor Vehicle Safety Standards for seat belts

• Conducted full scale simulated crash tests to evaluate seat belt effectiveness

• Represented Canada on the Vehicle Dynamics Committee of the International Standards Organization, 1974-1995

• President, Canadian Association of Technical Accident Investigators & Reconstructionists, 1987-1989

• Lectured on accident reconstruction at the University of Alberta, 1987. [emphasis added]

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 P00-00061, July 16, 2001)
3. 32002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (August 15, 2002)
4. 4[2001] O.J. No. 3294 (Ont. S.C.J.) In her decision, Justice Chapnik adopted Arbitrator Novick's statement of the causation test in Petrosoniak and Security National Insurance Company (FSCO A98-000198, November 2, 1998)
5. 5(FSCO A01-001429, October 4, 2002), under appeal
6. 6(FSCO P01-00026, August 9, 2002) An application for judicial review is pending in Kumar.
7. 7(FSCO A98-000198, November 2, 1998). In this case, Arbitrator Novick held that an oil slick left on the road by a vehicle "directly caused" the applicant's injuries, when his bike slipped on the oil slick.
8. 8Petrosoniak and Security National Insurance Company (FSCO A98-000198, November 2, 1998); Sarkisian and Co-operators General Insurance Company (FSCO A99-000966, January 17, 2001); Karshe and Non-Marine Underwriters, Mbrs. of Lloyd's, (FSCO A99-000855, December 15, 2000); Kumar and Coachman Insurance Company (FSCO P01-00026, August 9, 2002); Elensky and Royal & SunAlliance Insurance Company of Canada (FSCO P01-00030, August 9, 2002); Chisholm v Liberty Mutual [2001] O.J. No. 3294, August 13, 2001; TTC Insurance Company Ltd. and Correia (FSCO P00-00061, July 16, 2001); Liu and Lombard General Insurance Company of Canada (FSCO A01-001429, October 4, 2002), under appeal; Souchuk and State Farm Mutual Automobile Insurance Company (FSCO A02-000309, November 27, 2002), under appeal; Saad and Federation Insurance Company of Canada (FSCO A02-001279, April 24, 2003); and Umer and Non-Marine Underwriters, Mbrs. of Lloyd's (FSCO A-000721, April 3, 2003)
9. 9Ibid
10. 10Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (August 15, 2002); TTC Insurance Company Ltd. and Correia (FSCO P00-00061, July 16, 2001); Liu and Lombard General Insurance Company of Canada (FSCO A01-001429, October 4, 2002), under appeal; Souchuk and State Farm Mutual Automobile Insurance Company (FSCO A02-000309, November 27, 2002), under appeal; and Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003)
11. 11Petrosoniak and Security National Insurance Company (FSCO A98-000198, November 2, 1998); Shantz and Dominion of Canada General Insurance Company (FSCO A01-001147, May 13, 2002); Souchuk and State Farm Mutual Automobile Insurance Company (FSCO A02-000309, November 27, 2002), under appeal; and Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003)
12. 12Lenti and Zurich Insurance Company (FSCO P98-00030, December 18, 1998); Karshe and Non-Marine Underwriters, Mbrs. of Lloyd's (FSCO A99-000855, December 15, 2000); Waters and Royal & SunAlliance Insurance Company of Canada (FSCO A00-001143, October 18, 2001); Kumar and Coachman Insurance Company (FSCO P01-00026, August 9, 2002); Elensky and Royal & SunAlliance Insurance Company of Canada (FSCO P01-00030, August 9, 2002); Liu and Lombard General Insurance Company of Canada (FSCO A01-001429, October 4, 2002), under appeal; and Souchuk and State Farm Mutual Automobile Insurance Company (FSCO A02-000309, November 27, 2002), under appeal.
13. 13Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135 (August 15, 2002), which cites Heredi v. Fenssom [2002] SCC 50; Liu and Lombard General Insurance Company of Canada (FSCO A01-001429, October 4, 2002), under appeal; and Souchuk and State Farm Mutual Automobile Insurance Company (FSCO A02-000309, November 27, 2002), under appeal.
14. 14Kumar and Coachman Insurance Company (FSCO P01-00026, August 9, 2002)
15. 15Souchuk and State Farm Mutual Automobile Insurance Company (FSCO A02-000309, November 27, 2002), under appeal
16. 16This same view has also been articulated in the arbitration cases of Petrosoniak and Security National Insurance Company (FSCO A98-000198, November 2, 1998); Shantz and Dominion of Canada General Insurance Company (FSCO A01-001147, May 13, 2002); and the appeal decisions of Kumar and Coachman Insurance Company (fSCO P01-00026, August 9, 2002) and Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003)
17. 17Petrosoniak and Security National Insurance Company (FSCO A98-000198, November 2, 1998) This principle has been consistently adopted in all arbitration and court cases dealing with the issue of what is an "accident" after November 1, 1996.
18. 18The summary of Mr. Keith's detailed curriculum vitae notes the following:
19. 19Arbitrator Baltman in Liu notes that a weapon does not necessarily mean "an actual instrument of physical harm." It also has been defined as "a means employed for trying to gain the advantage in a conflict." (See the Concise Oxford Dictionary, 8th edition, 1990). As well, Merriam-Webster's Collegiate Dictionary (10th edition, 1994) defines "weapon" as "a means of contending against another." I accept that these definitions are applicable to the fact situation in this case.