Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 53

Appeal P04-00031

OFFICE OF THE DIRECTOR OF ARBITRATIONS

CERTAS DIRECT INSURANCE COMPANY

Appellant

and

BALVIR GILL

Respondent

Before:

David Evans

Representatives:

Ralph D'Angelo for Certas

Naresh Misir for Mr. Gill

Hearing Date:

January 18, 2005

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The appeal is allowed, and the arbitration order, dated August 26, 2004, is revoked

2. The matter is remitted for rehearing by an arbitrator.

3. If the parties are unable to agree on appeal expenses, the matter may be resolved in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 27, 2005

David Evans

Director's Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

The question of law on this appeal is whether Mr. Gill, who was severely injured after rolling out of his car and jumping off a bridge from Highway 401 onto Bayview Avenue,¹ is entitled to statutory accident benefits from his insurer, Certas Direct Insurance Company. The answer turns on whether he was injured in an "accident" as defined in s. 2(1) of the SABS-1996²:

2. (1) In this Regulation,

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

The arbitrator held that Mr. Gill was injured in an accident. Certas Direct appeals.

II. BACKGROUND

As the arbitrator notes in his decision, the events leading to Mr. Balvir Gill's injuries on April 9, 2002 were unusual:

Mr. Gill left work at the usual quitting time in late afternoon, and was driving east in smooth traffic in the collector lanes of Highway 401 in the north part of Toronto, travelling around 100 kilometres per hour. As his car slowed, the left front door of his automobile suddenly opened, and Mr. Gill slid out of the moving car onto the middle lane pavement, with rush hour traffic all about him. He avoided being hit by the oncoming cars, but his unoccupied vehicle careened through traffic and smashed into the guardrail.

Remarkably, Mr. Gill did not sustain major injuries from his initial impact and roll-over onto the asphalt. Dazed, he got up almost immediately, ran to the highway edge and catapulted himself over the guardrail down onto Bayview Avenue below. Again Mr. Gill avoided contact with other cars on Bayview, but he suffered multiple broken bones and contusions on impact with the pavement. The entire sequence of events took perhaps a minute.³

The arbitrator referred to testimony showing there was an unbroken chain of events between Mr. Gill's landing on the pavement after exiting his car and his jumping from the bridge. One witness saw him fall out of the car, and then a second witness, Mr. Matthew Lichtfuss, "testified he saw Mr. Gill get up, run and hurdle himself over the guardrail without hesitation or pause in the sequence of events." The arbitrator then considered the two opposing theories on why Mr. Gill fell out of his car. He did not accept Mr. Gill's explanation that the car door spontaneously opened, causing him to fall out while trying to reach over and close it. Instead, he accepted the evidence of Mr. Gill's brother, Jaswant Gill, that he suffered a panic attack:

There is uncontradicted compelling evidence from Mr. Gill's brother that the Appli-cant suffered a panic attack. Jaswant Gill saw his brother at a factory every workday, and testified that Mr. Gill periodically got drunk, and in 1998 had bolted from a hos-pital in fear that the nurses were trying to kill him. He also testified that his brother had said at the hospital after the accident that the cars on the highway were trying to kill him, and told police after the accident that Mr. Gill looked sick and disturbed that day at work.

This evidence persuades me that Mr. Gill opened the car door as a result of his own fears that the other cars were trying to kill him. I find that Mr. Gill suffered a panic attack while driving his automobile on April 9, 2002, which directly caused him to exit his car, run to the edge of the highway and leap onto Bayview Avenue.⁴

The arbitrator rejected Certas Direct's submission that Mr. Gill's "surge of fear or panic attack" constituted either a separate intervening force breaking the chain of events or that the incident occurred outside the normal use or operation of his motor vehicle. He also invoked the "thin-skull" principle on the basis that an insurer underwrites the risk of an insured driver's inherent characteristics.

III. ANALYSIS

There is limited evidence to support the arbitrator's conclusion that "[t]here is uncontradicted compelling evidence from Mr. Gill's brother that the Applicant suffered a panic attack." In fact, Mr. Gill himself disagreed, as can be seen in this series of questions put to Mr. Gill in cross-examination:

266. Q. Mr. Gill, going back to this incident of April 9, 2002, I say to you that you deliberately opened that driver's door.

A. No, I didn't.

267. Q. And that you opened the door and deliberately rolled out of the vehicle?

A. No.

268. Q. And that you did that because you thought people were following you that were trying to kill you?

A. No.

269. Q. And that the reason that you jumped off of the fence was because you were trying to get away from these people that were trying to kill you?

A. No.⁵

Although the arbitrator accepted hearsay evidence from Mr. Gill's brother, Jaswant, he did not consider the other hearsay evidence of Jaswant that the Applicant told him he fell out of the car because of problems with the door. For instance, Jaswant Gill gave the following evidence about his talks with his brother one or two days after the accident:

149. Q. All right. What else do you recall him telling you about how he tried to catch that door?

A. All he said, that when the door opened, he remembered that he tried to catch the door. He couldn't catch the door because it was a big door, right, a heavy door, so he said the door went far; and because he's having a belt on, so when he tried to reach it the belt hold him, so he unlocked the belt and then he tried to catch the door and he couldn't catch the door, he tried one or two times, and all of a sudden he fall out.

150. Q. I'm sorry, he tried once or twice?

A. Well, he said he tried once or twice to reach the door.

151. Q. Yes.

A. And when he tried maybe second time, I don't know, he said he was trying to catch it, he couldn't catch it. He leaned out to grab the door and he fall out. After that, he said he doesn't know what happened.⁶

In my review of the transcript, the closest Jaswant Gill comes to saying his brother had a panic attack was the following at question 92, when he saw his brother at the hospital shortly after the accident: "All he said to us, that he was scared when he was on the street or there were some cars racing after him, someone was saying that we're going to kill you, sort of things."

Jaswant Gill also gave a statement to the police after the accident.⁷ This contains the reference to Mr. Gill looking sick and disturbed at work that day; in his testimony, Mr. Gill merely stated that his brother looked tired. A good portion of the statement relates to the 1998 hospital incident, about which Jaswant Gill testified: "All that I stated in that statement is not — are not my words. All the words came from the police, what they told me, because I wasn't there when it happened, right."⁸ In the statement, he also quotes his brother as stating at the hospital: "There were so many cars racing after me trying to catch me didn't you see that. They were trying to kill me I had no time to stop."

In light of the above, the arbitrator's explanation why he preferred Jaswant's evidence to that of Balvir Gill is insufficient, as the evidence was neither uncontradicted nor compelling. His conclusion is particularly puzzling because it was the Insurer arguing this was a panic attack, not a malfunctioning door. This was hearsay evidence, and although the arbitrator may have had good reason to prefer it over the direct testimony of Mr. Gill, the issue was not properly addressed. It would be inappropriate for me to substitute my finding for the arbitrator's, but the point is critical to the decision.

Furthermore, although the arbitrator rejected Mr. Gill's evidence that he fell out of the car because of door problems, he neither accepted nor rejected Mr. Gill's evidence on what happened after exiting the car. Instead, he simply found that Mr. Gill suffered a panic attack while driving his car that caused him to exit it, run to the edge of the highway and leap off the bridge. However, Mr. Gill's evidence on what happened after he left the car forms an important link with the legal principles involved. For now, I reproduce some of that testimony here:

164. Q. Sorry, you hurt your feet and your ankle and your knee and whole body was hurting. All right. But you were able to put weight on your feet?

A. Yes. Yes, I tried to get up, in order to get up.

165. Q. And you did because you got up and you ran to the side of the highway?

A. Because I was trying to avoid the other cars.

197. Q. All right. Why didn't you stop at the fence?

A. Which fence?

198. Q. The fence that you jumped over.

A. Because I was so scared of the cars, that's why.

199. Q. What cars?

A. The ones that were coming on the highway.

200. Q. Did you see any cars coming right at you?

A. That's how I felt, like, that they were coming onto me.

201. Q. Had you seen these cars before?

A. When?

202. Q. These cars that you felt were coming at you, did you see them before?

A. I only saw them when I got up from the highway. On the highway, you have other cars, too.

203. Q. So you jumped off of the fence?

A. Yes, I crossed over.

204. Q. And you fell onto the street below?

A. I don't know where I fell, what I fell on.

205. Q. Did you stop at all before you jumped off of the bridge?

A. No.

206. Q. Not even for a second?

A. No, I don't think I stood there because I saw — because I was so afraid, so I jumped over.

216. Q. Okay. Were you able to sit on the fence without going over?

A. I don't know anything because I was so afraid, so I just jumped over..

277. Q. When you got up from the ground after falling out and you stood up and you saw your environment, what were you thinking at that point? A. I was afraid. I was scared to avoid these cars. I tried to jump.

I will now turn to the principles developed in previous decisions, to which the arbitrator only implicitly referred.

The starting point is the "purpose" test set out in Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405: Did the accident result from the ordinary and well-known activities to which automobiles are put? This refers back to the "use or operation of an automobile" portion of the definition of accident. Labrosse J.A. in Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338 (C.A.)⁹ noted that "the Amos purpose test may act as a sort of filter; before determining whether the accident was causally connected to the use of the car, it has to be determined whether the car was being used in a manner that would be covered by the insurance at all."¹⁰ However, as Director's Delegate Makepeace noted in Irving and CGU Insurance Company of Canada, (FSCO P03-00022, November 29, 2004), the broad interpretation given to " use or operation" extends beyond driving

to include other "ordinary and well-known activities to which automobiles are put" – for example, getting into and out of an automobile, loading and unloading cargo, refueling, changing a tire, performing repairs and maintenance, or extricating a vehicle from ice and snow.¹¹

On this point, the arbitrator simply stated that he rejected Certas Direct's argument that this incident occurred outside the normal use or operation of Mr. Gill's motor vehicle. Certas Direct argues that the arbitrator erred in law in failing to consider the "purpose test." It also submits that Mr. Gill did not meet the purpose test because rolling out of an automobile in the absence of a tangible threat was unforeseeable and unprecedented.

The purpose test was clearly important to Certas Direct, as shown in the series of questions put to Mr. Gill that I first quoted (". . . I say to you that you deliberately opened that driver's door."). The queries put by Certas Direct suggest that it was seeking to put the blame for the incident on Mr. Gill, supporting an argument that a person deliberately exiting a moving car is not entitled to coverage. However, some activities are so clearly involved with the use or operation of an automobile that the purpose can be taken as a given. In this case, Mr. Gill was still engaged in an activity that involved the use or operation of his own automobile when he fell out of it. Furthermore, as Labrosse J.A. put it in Greenhalgh, one can characterize the "ordinary and well-known activity" required by the Amos purpose test as the initial mishap, so that one need not still be engaged in an activity that involved the automobile to pass the test. In Greenhalgh, Labrosse J.A. listed a number of circumstances that arose after the plaintiff left her car. The facts in Greenhalgh were summarized in Irving as follows:

Ms. Greenhalgh got lost while driving in the country with a friend. Her car got stuck on a rock on a private road, and eventually stalled. After failing in her attempts to get the car moving and to call for help (her cell phone battery died), she and her friend left the vehicle to look for help. They got lost, and walked through the night for nine or ten hours. Along the way, they fell into an ice-covered river, and Ms. Greenhalgh lost her boots. She suffered severe frostbite, requiring the amputation of her fingers and her legs below the knees. Her insurer denied her claim for accident benefits. On the motion of Ms. Greenhalgh's insurer, Justice Kiteley concluded this was an "acci-dent," essentially because it resulted from automobile-related risks, and, alternatively, there was "an unbroken chain" of events between Ms. Greenhalgh's use of her vehicle and her frostbite injuries.

Labrosse J.A. considered that the circumstances in Greenhalgh were sufficient to pass the "purpose" test. Implicitly, the arbitrator also found that the initial mishap of rolling out of the car passed the purpose test. Essentially, Mr. Gill was driving his car when the incident started and exiting a car is part of its use or operation. Accordingly, I see no error in law in this part of the arbitrator's finding. However, the impairments upon which the claim is based were not caused at this point: as noted above, Mr. Gill did not sustain "major injuries" from his fall out of the car. Instead, he suffered the multiple broken bones and contusions when he fell onto Bayview Avenue.

The other major question to answer is whether or not the impairments were directly caused by the use or operation of an automobile. The causation test was set out by Laskin J.A. in Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (C.A.). He pointed out that a person seeking accident benefits under the SABS-1996 must meet a narrower or more stringent causation requirement than under the Statutory Accident Benefits Schedule —Accidents Before January 1, 1994, (O. Reg. 672, as amended) and Statutory Accident Benefits Schedule —Accidents After December 31, 1993 and Before November 1, 1996, (O. Reg. 776/93, as amended), which included incidents in which use or operation of an automobile caused an injury or impairment directly or indirectly. He found three inquiries helpful in answering the "direct cause" question: the "but for" inquiry; the "intervening act" inquiry; and the "dominant feature" inquiry.

Both Chisholm and Greenhalgh stand for the proposition that the "but for" inquiry is a filter that only serves to eliminate from consideration factually irrelevant causes: it does not conclusively establish legal causation. In this case, one can say that but for Mr. Gill driving his automobile on the 401, he would not have left it and thrown himself onto Bayview Avenue.

Looking at the "intervening act" inquiry, the Court of Appeal ruled that an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the car. Labrosse J.A. found that none of the intervening acts in Greenhalgh could be considered "a normal incident of the risk created by the use or operation of the car" and that, taken together, the intervening acts supported the conclusion that the use of the car was not a direct cause of the impairments.

With respect to causation, the arbitrator found that there was no separate intervening force breaking the chain of events. He dealt mostly with the issue of the panic attack itself:

Certas presented no arbitration or court decisions to support its argument that Mr. Gill's fear was a separate intervening force, that is, something that interferes, prevents or modifies the result or course of events. Mr. Gill's intrinsic psychological makeup and personal characteristics are easy to distinguish, in my view, from the intervention of a robber who boards a bus to pistol whip a passenger.

Arbitration decisions recognize the tort principle that insureds may be prone to suffer exceptional adverse reactions, the so-called "thin skull" principle. I see no distinction between Mr. Gill's response, whether rational or not, to the danger of driving his automobile, and another driver's heart attack or other physical problem that precip-itates an otherwise avoidable collision or causes unexpected delays in recovery. Measuring the "normalcy" of a response is simply impractical, and likewise under-mines the "thin skull" principle that an insurer underwrites the risk of an insured driver's inherent characteristics. [Footnotes omitted.]

The analogy does not hold, since there was no collision here nor any evidence of an unexpected delay in recovery. Furthermore, the "thin skull" principle has no application to the initial coverage question – whether use or operation of an automobile directly caused an impairment. Similarly, the arbitrator's choice of examples do not fully address the issues. For instance, there are some similarities between an attack — that is, a panic attack or a heart attack — and an assault. As Director's Delegate Makepeace stated in Irving,

it is fair to say that an assault committed on or by a driver or occupant of an automobile is not an "accident," as defined in the SABS-1996, unless the automobile was the instrument of injury (for example, the driver intentionally ran down the claimant), or the assault caused an automobile to lose control and the claimant was injured in the subsequent collision. It is now clear that an assault is not an "accident" under the SABS-1996 just because it occurred in or near an automobile. . . .¹²

It would be equally fair to say that a heart attack is not an "accident" unless it caused the driver to lose control and the claimant was injured in the subsequent collision. In Waters and Royal & SunAlliance Insurance Company of Canada, (FSCO A00-001143, October 18, 2001), the arbitrator found that the fatal heart attack Mr. Waters suffered while driving represented the intervention of a force that emanated from "a new and independent source." She found that the fact he experienced it while operating his vehicle was not enough to bring the circumstances within the meaning of the term "accident."

In this case, on very weak evidence, the arbitrator found that Mr. Gill suffered a panic attack while driving that was induced by other automobiles. In light of that weak evidence, this case is difficult to distinguish from Waters, where it was simply unknown whether the applicant's heart attack was triggered by the condition of the road or the actions of another driver. I find little support for the arbitrator's finding that Mr. Gill's panic attack was not an intervening event.

The arbitrator also did not deal at any length with Mr. Gill's steps from the middle of the 401 to its side other than to note that Mr. Gill avoided being hit by the oncoming cars. Instead, he skipped to Certas Direct's submission that Mr. Gill had paused on the fence before jumping and rejected it.

Certas Direct submits that the intervening acts after Mr. Gill left his car support a reversal of the arbitrator's findings. The arbitrator made no findings on Mr. Gill's testimony on the situation he found himself in after leaving the car, despite the evidence before him. As the arbitrator did not address the issue, his reasons fall short of the required standard. However, as discussed below, there was evidence to place those actions in the context of use or operation of an automobile. That evidence needed to be considered in the decision, but it is not my place to make those factual findings.

The remaining analysis is to see if the use or operation of the automobile was the dominant feature of the accident — the aspect of the situation that most directly caused the injuries. As Director's Delegate Makepeace stated in Irving:

The concept of intervening cause reflects the need to define the extent of liability for the consequences of a negligent act. It makes an awkward fit in a "no-fault" accident benefit scheme based on a statutory contract. In contrast, the strength of the dominant feature analysis is that it focuses directly on the scope of coverage under the claimant's policy, and asks a common sense question about the reasonable expectations of insurers and insured persons. In [Seale and Belair Insurance Company Inc., (FSCO P02-00005, January 28, 2003)], I identified four factors as important in defining the nature of the incident – time, proximity, activity and risk.¹³

The arbitrator found that Mr. Gill opened the car door as a result of "his own fears that the other cars were trying to kill him," and "that Mr. Gill suffered a panic attack while driving his automobile . . . which directly caused him to exit his car, run to the edge of the highway and leap onto Bayview Avenue." [Emphasis added.] The arbitrator also found that the leap occurred in "time and space proximity" with the attack, thereby referencing two of the factors identified in Seale for determining the dominant feature of an incident.

The arbitrator did not specifically consider this principle. Applying the facts as found by the arbitrator, I find that, on the face of it, the dominant feature of the incident was the panic attack: the arbitrator referred to it as the direct cause of the leap, and he relied on its time and space proximity with the leap. However, to pass this test, the use or operation of an automobile has to be the dominant feature of the incident that led to the impairment. If it is not, the link between use or operation and the impairment may be too remote to be called "direct."¹⁴ The question then is whether or not the use or operation of an automobile played a direct enough role in the incident to be considered a direct cause of the impairment.

It may be that Mr. Gill's own automobile meets that test to the point where he landed on the pavement of the 401. However, I am not persuaded that the use or operation of Mr. Gill's automobile can be seen as the dominant feature through to the jump off the bridge. Instead, the situation, on the facts as found by the arbitrator, is more analogous to that in Waters. To paraphrase Arbitrator Novick, the fact that Mr. Gill experienced his panic 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 SABS. I am not satisfied that a finding on very weak evidence that Mr. Gill suffered a panic attack while driving that directly caused him to leap onto Bayview Avenue — a panic attack that Mr. Gill himself denies — is sufficient to distinguish this case from Waters.

However, the evidence I referred to above supports the idea that the other automobiles on the 401 could have been a dominant feature after Mr. Gill left his car. Thus, Mr. Gill submits that his situation was similar to that in Eccleston and Guarantee Company of North America, (FSCO A04-000759, November 3, 2004). In that case, the use or operation of a bus moving towards Ms. Eccleston caused her to step onto snow and ice, resulting in a slip and fall leading to an impairment. The arbitrator accepted that this was an "accident" on the basis that the use or operation of the bus was the dominant feature in the incident and a direct cause of the applicant's injuries. Mr. Gill submits that, similarly, after he fell out, he saw the oncoming vehicles and in response he tried to get out of the way by jumping over the fence, not realizing he was on a bridge. However, as Certas Direct correctly points out, the arbitrator made no finding that Mr. Gill jumped off the bridge to avoid the oncoming vehicles. Instead, he related it all to the initial panic attack.

It is possible that, in applying the principles noted above, an arbitrator could accept evidence showing that the leap occurred near in time and place to the oncoming vehicles, and the activity was a normal one to take in light of the high risk. In that case, Mr. Gill might pass the dominant feature test. That analysis was not carried out in this case.

In conclusion, I find the arbitrator failed to properly explain his preference for the evidence of Mr. Gill's brother regarding the panic attack. He also failed to consider the evidence on what happened after Mr. Gill left his car, which was relevant to both the intervening act and the dominant feature analyses. On their own, the arbitrator's reasons do not support his conclusions. However, though I accept Certas Direct's submission that the arbitration order cannot stand, I am not persuaded it would be appropriate for me to substitute my own order. Accordingly, the matter will be remitted to arbitration for a new hearing.

IV. EXPENSES

If the parties are unable to agree on appeal expenses, the matter may be resolved in accordance with Rule 79 of the Dispute Resolution Practice Code.

April 27, 2005

David Evans

Director's Delegate

Date

Footnotes

1. 1The report of Dr. Earl R. Bogoch, orthopaedic surgeon, of March 8, 2004, indicates that Mr. Gill suffered severe injuries, some of which required surgery. He was hospitalized in Sunnybrook Health Sciences Centre and then St. John's Rehabilitation Hospital for a total of six months: Arbitration exhibit 2.
2. 2Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
3. 3Page 2
4. 4Page 3.
5. 5Arbitration transcript of Balvir Gill.
6. 6Arbitration transcript of Jaswant Gill.
7. 7Arbitration exhibit 1.
8. 8Arbitration transcript of Jaswant Gill, question 114.
9. 9Reversing [2003] O.J. No. 2740 (S.C.J.), leave to appeal refused [2004] S.C.C.A. No. 461.
10. 10Paragraph 24.
11. 11Page 10.
12. 12Page 11; references omitted.
13. 13Page 20; references omitted. Director Draper in Souchuk and State Farm Mutual Automobile Insurance Company, (FSCO P02-00039, January 8, 2004) agreed with this analysis.
14. 14Greenhalgh, para. 47.