Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2005 ONFSCDRS 61

Appeal P04-00026

OFFICE OF THE DIRECTOR OF ARBITRATIONS

ING INSURANCE COMPANY OF CANADA

Appellant

and

SHIVJINDER SOHI

Respondent

Before:

Nancy Makepeace

Representatives:

Chris Blom for ING

Bassanio Ghose for Mr. Sohi

Hearing Date:

November 24, 2004

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 July 15, 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.

May 5, 2005

Nancy Makepeace

Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

ING appeals from the arbitrator’s decision that it is required to provide psychological treatment for Mr. Sohi, pursuant to s. 14 of the SABS-1996,¹ and to pay for certain examinations pursuant to s. 24. The arbitrator rejected the insurer’s submission that Mr. Sohi’s suicide attempt by fire on June 3, 2001 broke the chain of causation between the automobile accident of May 18, 2001 and his later claim for psychological treatment. ING submits that the arbitrator erred in law in his interpretation and application of the “accident” definition and causation criteria in the SABS-1996, and alternatively, that the arbitrator made unsupported inferences amounting to an error law.

I am not persuaded the arbitrator erred in his legal analysis, but the decision leaves critical factual questions unanswered, and therefore the matter must be reheard.

II. BACKGROUND

D. The Facts and the Arbitration Decision

Mr. Sohi was involved in an automobile accident on May 18, 2001. Though ING challenges the arbitrator’s factual inferences, it does not challenge the main points in the arbitrator’s account of the accident:

From his testimony and other reports, it is clear that Mr. Sohi was standing about at the edge of the parking lot of a plaza in Scarborough with a group of individuals, known to him, when he was hit by a moving vehicle which dragged him along, before the car reversed, letting him fall to the ground. His foot was injured, and there were lacerations on his body from the broken glass of either the car or a bus shelter.²

There was little dispute about Mr. Sohi’s physical injuries resulting from the accident. He was taken by ambulance to Scarborough Centenary Hospital, the reports noting hip and neck pain, lacerations to the left elbow and deep lacerations to the right knee, exposing the kneecap, which required stitches.

Following treatment at Scarborough Centenary Hospital, Mr. Sohi was released to his home. He was walking with crutches and had dressings on his wound.

In the next few days, Mr. Sohi saw his family doctor and attended Etobicoke General Hospital for care of his right knee wound.

The parties disagreed about the psychological consequences of the accident. On June 3, 2001, three weeks after the accident, in his living room, Mr. Sohi poured gasoline over himself and set himself on fire, suffering serious burns to 42 per cent of his body. Hospital reports note that his condition was life-threatening. The arbitrator found that Mr. Sohi’s burn injuries “far exceeded those he had received from the car accident itself.” As related by the arbitrator, Mr. Sohi was initially treated at Joseph Brant Hospital in Burlington, then taken to Sunnybrook and Women’s College Hospital in Toronto, where he remained for many months. He was then discharged to St. John’s Rehabilitation Hospital in Toronto, where he stayed for almost nine months. As the arbitrator stated, referring to the burn injuries, “this was not a minor matter.”³

ING denied Mr. Sohi’s claim for psychological treatment expenses the following year on the basis that the treatment related to his attempted suicide and pre-existing psychological problems that led to it, rather than the accident.

The causation issue was the main dispute at arbitration. Mr. Sohi testified, and called two psychologists who supported his claim – Dr. J. Pilowsky, his treating psychologist, and Dr. Louise Koepfler, a psychologist who assessed him as part of a Medical-Rehabilitation DAC. ING’s position was supported by Dr. Monte Bail, a psychiatrist who assessed Mr. Sohi as part of an Attendant Care DAC. The arbitrator rejected the evidence of Dr. Bail, whom he found to be a partisan witness. He preferred the evidence of the experts Mr. Sohi relied on. Ultimately, the arbitrator concluded:

I accept Dr. Koepfler’s and Dr. Pilowsky’s conclusions and find that Mr. Sohi’s suicide attempt, and the injuries arising from it, was triggered by the motor vehicle accident, which was a direct cause of his burn injuries. The motor vehicle accident was the direct trigger setting a compromised Mr. Sohi on the road to self destruction. . . .

I find that Mr. Sohi has satisfied the burden of proving, on the balance of probabilities, that his burn related injuries were a direct result of the motor vehicle accident.⁴

Accordingly, the arbitrator ordered ING to pay for the psychological treatment described in Dr. Pilowsky’s treatment plan, dated October 8, 2002, pursuant to s. 14 of the SABS-1996, and the s. 24 examinations performed by Dr. Pilowsky and by an occupational therapist for J&K Rehab, as well as interest under s. 46(2) of the SABS-1996.

B. The Parties’ Positions on Appeal

ING argues that the arbitrator misapplied the legal principles governing the definition of “accident” and the causation requirement, and challenges the arbitrator’s factual inferences, which it contends had no basis in the evidence.

Mr. Sohi submits that the appeal asks me to interfere with the arbitrator’s assessment of the evidence, which is beyond my authority because appeals are restricted to questions of law.

He concedes that the fire, considered as a separate incident, was not an “accident,” as defined in the SABS, but contends that the automobile accident and its psychological sequelae led to his self-injury, thereby bringing his claims within the coverage of the SABS.

III. ANALYSIS

A. The Definition of “Accident” and the Causation Requirement

Subsection 2(1) of the SABS-1996, which governs incidents on or after November 1, 1996, defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment . . .” There is no dispute it is narrower than the definitions in the SABS-1990 and SABS-1994, which included incidents in which use or operation of an automobile caused an injury or impairment “directly or indirectly.” The scope of the amended definition has been considered in a number of FSCO and court decisions, which I reviewed most recently in Irving and CGU Insurance Company of Canada, (FSCO P03-00022, November 29, 2004). The leading statements are in the two recent decisions of the Ontario Court of Appeal, Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135, and Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485.⁵ The basic principles are well-settled, and there is no need to revisit them in this case.

Applying the principles to the many varied fact situations continues to generate disputes. I summarized the state of the law in Irving:

Defining “accident” is, to some degree, a line-drawing exercise, and for that reason, the “accident” cases are relatively fact-driven. There are several broad categories, but the assault cases are the most settled. At this point, 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, it was provoked by road rage, it happened in the course of an attempt to steal an automobile or its contents or rob the driver, or an automobile provided a means of escape for the assailant.⁶

ING characterizes Mr. Sohi’s setting himself on fire as “self-assault” and contends it falls within the general rule that assaults are not “accidents” under the SABS-1996. Even if using an automobile to commit suicide by carbon monoxide poisoning is an “accident” under the SABS-1996 definition,⁷ ING submits that Mr. Sohi’s facts are distinguishable because an automobile was not instrumentally involved in the incident, which occurred in his living room.

Clearly, if Mr. Sohi had not been involved in an automobile accident on May 18, 2001, the incident on June 3, 2001 would fall outside the definition of “accident” under the SABS. The only question, therefore, is whether it was so connected to the automobile accident that it is thereby brought into the scope of coverage.

As I stated in Irving, the outer limit of the SABS-1996 “accident” definition has proven more difficult to define outside the assault context. For example, the Commission and the courts have considered a number of cases in which injury occurred after the insured person got out of the automobile in the course of an “interrupted journey,” where the automobile was not the instrument of injury. Greenhalgh is the leading interrupted journey case. Though Mr. Sohi’s case presents a different kind of problem, ING submits that the analysis of the Court of Appeal in that case requires me to reverse the arbitrator’s order in this one.

After her car broke down in the country, Ms. Greenhalgh 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 “accident,” 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.

The decision was overturned on appeal. The arbitrator, who did not have the advantage of the appeal decision, found that he was bound by Justice Kiteley’s decision.⁸ Although the Court of Appeal accepted that use or operation of her car was arguably a cause of Ms. Greenhalgh’s injuries, satisfying the “but for” test, that test was only exclusionary, and insufficient to establish coverage. Labrosse J.A., writing also on behalf of Charron and Goudge JJ.A., concluded that Ms. Greenhalgh failed to satisfy the “directly causes” definition of “accident” on either intervening cause or dominant feature reasoning.

The critical facts for the Court were that use or operation of the car had ended hours before Ms. Greenhalgh suffered her injuries, an automobile was not the instrument of injury, and a number of unrelated factors had intervened: Ms. Greenhalgh’s cell phone battery died, the weather was very cold, it was dark, she became disoriented, she walked a long way, she fell into a river, she lost her boots, she kept walking without boots, she was found miles away from her car. None of these intervening events was considered “a normal incident of the risk created by the use or operation of the car,” such as might bring Ms. Greenhalgh’s injuries within the scope of coverage.⁹

Apart from the “intervening cause” analysis, the Court also considered the “dominant feature” test, adopted by Justice Laskin in Chisholm from Heredi v. Fensom, 2002 SCC 50. Although the statutory language at issue in Heredi v. Fensom was broader than the SABS-1996 “accident” definition, “dominant feature” is a helpful approach because it focuses in a common sense way on the ultimate question: what is the scope of coverage under the statutory contract?¹⁰ Even applying the broader dominant feature test, Justice Laskin held that Mr. Chisholm’s injuries were not caused by an “accident,” since the dominant feature of the incident was the shooting, not use or operation of the automobile. In Greenhalgh, Justice Labrosse held that the “dominant feature of the insured’s injuries could best be characterized as exposure to the elements, and . . . the use of the motor vehicle was ancillary to that injury.” [para. 49] He concluded:

The legislation at issue is automobile legislation, and is specific in its applicability. The injuries suffered by the insured are tragic, but it cannot be said that the injuries were suffered as a “direct” result of an “accident”, within the meaning of the legislation. [para. 52] 2003).

Chisholm and Greenhalgh suggest that Mr. Sohi’s burns were not directly caused by use or operation of an automobile on an intervening cause or dominant feature analysis. An automobile was not the instrument of injury; Mr. Sohi’s burns were caused by his deliberately pouring gasoline over himself and setting it alight. The incident was removed from the accident in time and place; it occurred in his living room, sixteen days later, and Mr. Sohi was not engaged in any activity relating to use or operation of an automobile at the time.

However, it is not clear to me that Chisholm and Greenhalgh apply here. Whether Mr. Chisholm or Ms. Greenhalgh had been in an “accident” was the very issue in those cases, but ING does not dispute that Mr. Sohi was in an accident – on May 18, 2001. This case is about the secondary or downstream consequences of an automobile accident, an issue that I discussed in Correia and TTC Insurance Company Limited, (FSCO A00-000045, October 27, 2000), conf’d on appeal (FSCO P00-00061, July 16, 2001).

Ms. Correia suffered soft tissue injuries to her right hip, leg and ankle when she fell while stepping off a TTC bus. These were resolving when, several weeks later, she suffered disabling soft tissue injuries to her upper body while participating in a functional capacity evaluation (“FCE”) ordered by the physiotherapist who was treating her for her lower body injuries. Ms. Correia claimed income replacement benefits under s. 4 of the SABS-1996, medical benefits under s. 14, and housekeeping benefits under s. 22, all of which entitlement provisions require an impairment “as a result of an accident.”¹¹ The TTC denied the claim on the basis that Ms. Correia’s secondary injuries were not directly caused by the automobile accident. It took the position that the amended “accident” definition requires that use or operation of an automobile “directly causes” each and every impairment that gives rise to a claim. I concluded that the definition of “accident” is a threshold coverage provision and does not limit the benefits available: once the insured person proves that she sustained an impairment in an accident, “the test for entitlement to benefits is whether the impairments giving rise to the claim for benefits were sustained ‘as a result of’ the accident.”¹²

My arbitration decision was confirmed on appeal, though on somewhat narrower grounds. Director’s Delegate Naylor held that the “as a result of” language used in the eligibility provisions of the SABS must be interpreted in light of the “directly causes” language of the “accident” definition on the basis that the definitions of “accident,” “insured person” and “impairment” “are embedded in the eligibility provisions.”¹³ However, this did not mean the “directly caused” requirement precluded recovery for treatment-related injury:

“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. In any event, I conclude, as did the arbitrator, that the position of the TTC that injuries sustained in the course of a rehabilitation assessment are not covered because they are not “directly caused” by the use or operation of the automobile is too narrow a reading of the language of section 4.1. Not only, as pointed out in other cases, is the word “result” suggestive of a more tensile quality than “cause,” but the statutory language must be seen against the historical backdrop of the reach of the principle of proximate cause. Also, the definition of “insured person” specifically contemplates that someone who was not involved in an accident at all but who suffers mental or psychological injury as a result of an accident involving physical trauma to a family member can recover benefits.¹⁴

Correia is consistent with court decisions holding that a tortfeasor is responsible for injuries caused by treatment of the initial injury, at least where there is no finding of medical negligence. It also reflects legislative policy in favour of early active treatment and vocational rehabilitation; Ms. Correia was injured while completing a treatment program, in compliance with her obligations under the SABS, with the intention of returning to work.

Correia endorses the view that benefits may be available for new injuries that result from accident-related impairments – for example, a fall caused by accident-related weakness or dizziness.¹⁵ Mr. Sohi seeks to bring himself within this line of cases, arguing that the accident caused his depression, which caused his suicide attempt in the same way that a knee injury sustained in an automobile accident may cause or contribute to a subsequent fall.

As the SABS-1996 provides coverage for psychological as well as physical impairment,¹⁶ and it has not been suggested that the amended “accident” definition disturbs the well-established material contribution analysis¹⁷ or the “thin-skull” rule,¹⁸ I am not persuaded Mr. Sohi’s claim must fail in law. In any event, even if the “accident” definition requires a direct causal connection between use or operation of an automobile and every impairment that gives rise to a claim for benefits, I am not persuaded this requires a decision in favour of the insurer. I find no error in the arbitrator’s reliance on Cotic v. Gray, in which the Court of Appeal held that the automobile accident did not have to be the sole cause of the plaintiff’s suicide, so long as it was “a direct and substantial cause without which the suicide would not likely have happened.”

In the result, I see no error of law in the proposition that a claimant may be eligible for accident benefits in respect of a suicide attempt due to accident-related depression. The real issue is whether the arbitrator made speculative or unsupported factual inferences in concluding that the accident “was the direct trigger setting a compromised Mr. Sohi on the road to self destruction.”¹⁹ I now turn to that issue.

B. The Arbitrator’s Factual Inferences

ING submits that the arbitrator failed to address critical gaps and contradictions in the evidence presented in support of Mr. Sohi’s claim. I agree. Though the arbitrator recognized some of the weaknesses in Mr. Sohi’s evidence, his decision did not address significant deficiencies in Mr. Sohi’s case or explain why he nevertheless accepted the claim. Because I have concluded the arbitration must be reheard, I will address only the most problematic issues.

To decide the causation issue, the arbitrator had to consider Mr. Sohi’s condition before the automobile accident and in the three weeks between the accident and his attempted suicide. The arbitrator heard evidence about the problems Mr. Sohi was having before his automobile accident:

There is no question that Mr. Sohi had long-standing difficulties prior to the accident. He had a record of substance abuse that had landed him in court for assault and driving offenses. Indeed, he was likely drinking with the “boys” in the plaza parking lot at the time of his accident. Although he had some work experience, economic stability in his family seemed to have been provided for by his wife, and the other family members who lived under the same roof. With functional illiteracy and very limited English language skills, his long-term employment prospects were not promising.

His relations with his spouse and in-laws were strained. In addition to once having been tried and convicted for assaulting his wife, in the period surrounding the accident his marital relations were not a model of felicity. Indeed, his wife may have temporarily ceased to co-habit with him.²⁰

As to the period between the automobile accident and the attempted suicide, the arbitrator described the evidence as follows:

[Mr. Sohi] was reported as being highly distraught post-accident due to pain and difficulty sleeping. His wife reported subsequently to assessors that he began to abuse painkillers and alcohol due to his distress and pain.²¹ Mr. Sohi’s own recollection was that he was distressed and hopeless due to his physical injuries and pain when he attempted to burn himself to death.²²

This statement is at some variance with the following passage, in which the arbitrator recognized the paucity of direct evidence about the events leading up to the suicide attempt:

It is also clear that there are likely numerous contributing factors to the attempt at suicide by fire, one of which, Mr. Sohi asserts, is the psychological sequela to the motor vehicle accident.

In an attempt to link the fire event to the motor vehicle accident, Mr. Sohi testified on his own behalf, as well as producing two psychologists, together with their reports. Mr. Sohi’s evidence suffered from a significant weakness. He had little to no actual recall of the events immediately preceding the attempt at suicide by fire and those thereafter due to the severity of his injuries, and the significant time he remained unconscious following the event. His own version of this period is necessarily coloured by his own attempt to reconstruct events in his own mind.²³

In fact, ING’s submission that Mr. Sohi gave no direct evidence about his reasons for setting himself on fire was not disputed on appeal.²⁴ This did not prevent Mr. Sohi from proving his case, but he bore the burden of filling in the evidentiary gap.

He did this, to the arbitrator’s satisfaction, by relying on the oral evidence and reports prepared by Dr. Pilowsky, the psychologist who prepared the treatment plan at issue in this proceeding, and Dr. Koepfler, the psychologist who performed the Medical Rehabilitation DAC with respect to that plan. In her treatment plan, Dr. Pilowsky recommended 12 sessions of individual counselling for post traumatic stress disorder and major depressive disorder. The insurer referred the matter to a Medical-Rehabilitation DAC. Dr. Koepfler performed the assessment and in her report, dated July 10, 2003, she recommended that the insurer provide a vocational rehabilitation consultant and a functional restoration and pain management program. She did not find Dr. Pilowsky’s treatment plan reasonable or necessary because she concluded Mr. Sohi did not have the insight to benefit from psychotherapy.

Both experts accepted that Mr. Sohi’s suicide attempt was triggered by the automobile accident. In her report, dated October 8, 2002, Dr. Pilowsky stated that after the automobile accident,

Mr. Sohi apparently became so hopeless about his condition that he decided to kill himself by igniting his body on fire.²⁵

Her report indicates that Mr. Sohi and his wife linked the suicide attempt to the accident and its aftermath. According to Dr. Pilowsky, when asked about his state of mind at the time of his suicide attempt, Mr. Sohi told her

he was distressed and hopeless due to his physical injuries and resulting restrictions. At that point, he truly believed that killing himself was his best alternative.²⁶

Given the Arbitratrator’s “little or no recall” finding, Dr. Pilowsky’s report may have been the source of the following statement:

Mr. Sohi’s own recollection was that he was distressed and hopeless due to his physical injuries and pain when he attempted to burn himself to death.²⁷

The contradiction is not discussed in the arbitrator’s reasons. This was an important point. If Mr. Sohi explained his suicide attempt to Dr. Pilowsky in October 2002, some 16 months after his automobile accident and suicide attempt, but testified in April 2004 that he could not recall, an obvious question arises whether his failure to recall during the hearing related to a reluctance to face cross-examination on the point. On the same point, Dr. Koepfler stated, “Mr. Sohi has no explanation for his self-destructive act, but his relatives connect it to his constant pain and distress in the two weeks following his accident.”²⁸ The arbitrator failed to make a clear finding as to whether Mr. Sohi explained to anyone the reasons for his suicide attempt.

Dr. Pilowsky also spoke to Mrs. Sohi, who reportedly said that her husband was upset after the accident because of his pain, poor sleep, and inability to work, and “for this reason, he began to abuse painkillers and alcohol.” Mrs. Sohi had given a similar account in a statement given to an adjuster six months earlier, on May 24, 2002:

The next day [after the automobile accident], he called me. He said he had stitches, many injuries and all of his body was aching. It happened at night time. He was in a Scarborough Hospital. . . . He was home with crutches. He was very upset because he was thinking he could not work. He was medicated. Next day, we took him to Etobicoke Hospital. We asked for the stitching and dressings to be changed. I took the dressing off slowly, as instructed. He got pain when I took off the dressing. When he had pain, the doctor stated he should have tylenol. After that, he was not normal. He always complained of back pain and headach [sic], as well as his whole body. He had scratches all over his arms. They were very visible. His toes and knees were sore because he was dragged with the car. He was very upset and depressed. He was always meditated [sic]. He was always saying, what will I do? I don’t know when I will be able to go back to work? I have pain in my knees and feet and my whole body is aching. He often stated how much pain he was in. I never heard him stating that he wanted to take his own life, but he was always irritated. . . . Two weeks later, he had a fire on Saturday night. He never said anything. . . . He was irritable like before, but nothing different. There was no fight, and no other factors to upset him. His family did not say anything to upset him.

In the same statement, Mrs. Sohi said she spoke to her husband by telephone late that evening, and his behaviour was “normal after the accident behaviour. . . . Before the fire, at no time did Shivinder [sic] mention anything about wanting to burn himself. Everything was O.K. before the accident.”

Mrs. Sohi’s statement also addressed her husband’s marital and employment situation:

I have never been separated from Shivinder. I have a good relationship with my husband. Shivinder was involved in a car accident on May 18, 2001. He was employed at that time, working as a general labourer for a personnel agency, Impact Personnel Services. I do not remember the name of the other company. . . .

On appeal, Mr. Sohi’s counsel did not dispute the insurer’s contention that Mrs. Sohi had been identified as a witness who would be called on her husband’s behalf, but she did not testify.

Mr. Sohi’s counsel said she was not called because she would have had nothing to add. The insurer submits the arbitrator should have drawn an adverse inference from Mr. Sohi’s failure to call his wife and other family members who could testify about his psychological condition and his family and job situation during the period in question.

I do not find it necessary to consider the adverse inference point because I find that the arbitrator erred in failing to address the inconsistencies between what Mr. Sohi’s family members reportedly told Drs. Pilowsky and Koepfler and evidence that Mr. Sohi’s suicide attempt was related to his pre-accident problems and was not related to his automobile accident.

PC Smith, who attended at the scene, reported that he spoke to Mr. Sohi’s wife, his uncle, and other members of his family. His occurrence report relates the statement of Mr. Sohi’s uncle that Mr. Sohi had been intoxicated the night before, and that he “offered no explanation for the fire or his behaviour.” The report also includes the following comments about Mr. Sohi’s life situation:

In the past two years, their marriage has been deteriorating. Currently his wife is staying at her parents’ house . . . . He has been unemployed for the past three years and is a heavy drinker. . . . He has previously stated to family members and reflected upon doing harm to himself as a solution to his problems.²⁹

PC Smith’s report makes no mention of the automobile accident. This could be an inadvertent omission on his part, or perhaps family tensions or the stress of the moment affected the comments of Mr. Sohi’s family members. This was hearsay evidence, and the arbitrator may have had good reasons for disregarding it, but the issue had to be addressed in his decision, and was not.

The ambulance call report also indicated that Mr. Sohi may have had an argument with his family before covering himself with gasoline and setting himself on fire.³⁰

The Sunnybrook Hospital discharge summary, dated August 7, 2001, states: “The patient has a history of alcohol abuse and was in a car accident approximately 15 years ago in which he sustained minor injuries. He was otherwise previously healthy. . . .The patient was reported to be intoxicated at the time [of setting himself on fire] with an Ethanol level of 34.”³¹ Assuming the automobile accident reference relates to the May 18, 2001 accident (which was 16 days, not 15 years, before the suicide attempt) the report falls far short of linking the two.

Dr. Conn, a psychiatrist who assessed Mr. Sohi at St. John’s Rehabilitation Hospital on October 2, 2001, stated the following in his consultation note:

Wife states – no . . . hx [history] prior to getting involved [with] “bad people” - drugs, alcohol. . . . He [Mr. Sohi] relates heavy drinking prior to the fire . . . Has no memory of how fire started. Describes a minor MVA – leg injury prior to the fire.

The hospital’s discharge summary also refers to the automobile accident “about 15 days” before the fire, but again, with no suggestion of a link.³²

These reports – the police occurrence report, ambulance call report, Sunnybrook and St. John’s hospital reports – are, of course, only pieces of the evidentiary picture, and the arbitrator may have had good reasons for giving little weight to their failure to draw a link between the accident and suicide attempt. However, these four early reports, produced in the ordinary course of business, were an important part of ING’s case, and needed to be considered in the decision. They were not mentioned. In addition, the arbitrator failed to explain why he accepted the opinions of Drs. Pilowsky and Koepfler on the causation question despite their reliance on reported statements of family members that contradict the more contemporaneous evidence of the police, ambulance and hospital reports, evidence the arbitrator appears to have accepted, given his recognition of Mr. Sohi’s multiple life problems.³³ Again, it may be that the arbitrator considered the issue, but was satisfied by explanations given by the psychologists in their testimony. However, as he did not address the issue at all, his reasons fall short of the required standard.

In summary, the arbitrator did not explain why he preferred Mr. Sohi’s evidence over that of the insurer. Though I accept ING’s submission that the arbitration order cannot stand, I am not persuaded it would be appropriate for me to substitute my own order. 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.

May 5, 2005

Nancy Makepeace

Director’s Delegate

Date

As I said in Irving, at p. 14:

This definition implies that a direct cause need not be the only cause or the immediate cause (the causal event immediately preceding the injuring incident) but may be separated from it by “an unbroken chain of events involving the use or operation of an automobile.” To use a common causation metaphor: use or operation of an automobile must be what “started the ball rolling,” but other factors may influence where and when it stops. Thus, the arbitrator in Petrosoniak found that the cyclist’s injuries resulted from use or operation of an automobile – the truck that had released the oily fluid on which the cyclist lost control – without any other causal agency.

The “efficient cause” definition was approved in Chisholm v. Liberty Mutual, a drive-by shooting case, where Laskin J.A., writing for the court, stated:

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. [para. 27]

On intervening cause, Justice Laskin 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”. See J.G. Fleming, The Law of Torts, 9th ed. (North Ryde, NSW: LBC Information Services, 1988) at p.247. Gun shots from an unknown assailant can hardly be considered an intervening act in the “ordinary course of things”. The gun shots were the direct cause of his impairment, not his use of his car.” [para. 29]

Applying Justice Laskin’s analysis in Greenhalgh, Justice Labrosse concluded, “None of these intervening acts can be considered ‘a normal incident of the risk created by the use or operation of the car’ or, in other words, the use or operation of the car cannot be said to be a “direct cause” of the injuries. Taken together, these intervening acts support the conclusion that the use of the car here was not a direct cause of the impairments.” [para. 46]

The “normal incident of risk” analysis has also been adopted in FSCO decisions. See, for example, Seale and Belair Insurance Company Inc., (FSCO P02-00005, January 28, 2003), Souchuk and State Farm Mutual Automobile Insurance Company, (FSCO P02-00039, January 8, 2004), Liu and Lombard General Insurance Company of Canada, (FSCO P02-00030, January 8, 2004), and Irving and CGU Insurance Company of Canada, (FSCO P03-00022, November 29, 2004).

Footnotes

1. 1The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Arbitration decision, p. 8.
3. 3Arbitration decision, p. 3.
4. 4Arbitration decision, p. 13.
5. 5The Supreme Court of Canada denied leave to appeal with costs (without reasons) on March 3, 2005, [2004] S.C.C.A. No. 461. See also the statement of the Divisional Court in its decision dismissing an application for judicial review of Kumar and Coachman Insurance Company, (FSCO P01-00026, August 9, 2002): “We are all of the view that the decision of the Director’s Delegate is not patently unreasonable and indeed reflects a correct interpretation of the law.” 2004 CanLII 11702 (ON SCDC), [2004] O.J. No. 2494. The Ontario Court of Appeal denied leave to appeal without reasons, with costs to the respondents: [2004] O.J. No. 4421.
6. 6At pages 12-13, footnotes omitted.
7. 7That it is an “accident” under the “direct or indirect” definiton was established in Vijeyekumar v. State Farm Mutual Automobile Insurance Company, (1999), 1999 CanLII 1640 (ON CA), 44 O.R. (3d) 545 (Ont.C.A.), affg 1998 CanLII 14669 (ON CTGD), [1998] O.J. No. 426 (Ont.Gen.Div.), leave to appeal to the Supreme Court of Canada denied [1999] S.C.C.A. No. 438.
8. 8Arbitration decision, p. 7.
9. 9FSCO adjudicators have adopted an “efficient cause” definition of “direct cause” first set out in Petrosoniak and Security National Insurance Company: “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.”
10. 10See p. 10 of Seale and Belair Insurance Company Inc., (FSCO P02-00005, January 28,
11. 11Subsection 4(1), read together with paragraph 1, states, AThe insurer shall pay an insured person who sustains an impairment as a result of an accident an income replacement benefit if . . . the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.” Subsection 14(1), which is at issue in Mr. Sohi’s case, states, “The insurer shall pay an insured person who sustains an impairment as a result of an accident a medical benefit.” Subsection 14(2), which describes the specific benefits that are available, states, “The medical benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for, . . .” Subsection 22(1) requires the insurer to “pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.”
12. 12At pp. 25-26.
13. 13(FSCO P00-00061, July 16, 2001), p. 8.
14. 14Ibid., pp. 12-13.
15. 15See the discussion of the authorities at pp. 26-30 of the arbitration decision and pp. decision. 13-15 of the appeal
16. 16Subsection 2(1): “‘impairment’ means a loss or abnormality of a psychological, physiological or anatomical structure or function;”
17. 17Conversely, the material contribution test does not assist in determining coverage questions. See Irving and CGU Insurance Company of Canada, (FSCO P03-00022, November 29, 2004). p. 13.
18. 18Mr. Sohi relies on Cotic v. Gray, (1981), 1981 CanLII 76 (ON CA), 33 O.R. (2d) 356 (Ont.C.A.), appeal to the Supreme Court of Canada dismissed, 1983 CanLII 57 (SCC), [1983] 2 S.C.R. 2, Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, Alderson v. Callaghan (1998), 1998 CanLII 895 (ON CA), 40 O.R. (3d) 136 (Ont.C.A.), and Mizzi v. Hopkins et al., 2003 CanLII 52145 (ON CA), [2003] O.J. No. 1671 (Ont.C.A.).
19. 19Arbitration decision, p. 13.
20. 20Arbitration decision, p. 9.
21. 21In her report of October 8, 2002, Dr. Pilowsky reported comments by both Mr. Sohi and his wife, relating to this period.
22. 22Arbitration decision, p. 9.
23. 23Arbitration decision, p. 8, emphasis added.
24. 24A transcript is not available.
25. 25Arbitration exhibits, Tab 7, p. 8.
26. 26Arbitration exhibits, Tab 7, p. 4.
27. 27Arbitration decision, p. 9.
28. 28Arbitration exhibits, Tab 5, p. 1.
29. 29Arbitration Exhibit 14.
30. 30Arbitration Exhibits, Tab 12G.
31. 31Arbitration Exhibits, Tab 12G.
32. 32Arbitration exhibits, Tab 12I.
33. 33See p. 9 of the arbitration decision: “He [Mr. Sohi] had a record of substance abuse that had landed him in court for assault and driving offenses. Indeed, he was likely drinking with the “boys” in the plaza parking lot at the time of his accident.” Later in the same passage, the arbitrator noted that the insurer, “in its evidence, and in the cross-examination of Mr. Sohi, . . . drew out information indicating that Mr. Sohi’s social and relational problems were long-standing.”```