Financial Services Commission of Ontario

Neutral Citation: 2007 ONFSCDRS 232 FSCO A06-002469

BETWEEN:

ROLA KAMEL on her own behalf and on behalf of MURTADA ALATTIYA, LAYLA ALATTIYA AND ALI ALATTIYA (Minors) Applicants

and

TD GENERAL INSURANCE COMPANY Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Elizabeth Nastasi Heard: July 9, 2007, in Windsor, Ontario. Appearances: Enzo Timperio for Mrs. Kamel Dwain Burns for TD General Insurance Company

Issues:

On November 19, 2004, Mr. Thualfikar Alattiya, a taxi driver, was assaulted and murdered in his cab in the City of Windsor. At the time of this tragic incident, TD General Insurance Company (“TD”) insured Mr. Alattiya pursuant to a valid motor vehicle insurance policy. Ms. Rola Kamel, Mr. Alattiya’s spouse, submitted an Application for Death and Funeral Benefits on her own behalf and on behalf of the three children of the marriage, Murtada Alattiya, Layla Alattiya and Ali Alattiya. TD denied this claim on the basis that Mr. Alattiya’s death was not the result of an “accident” as defined in subsection 2(1) of the Schedule¹ and therefore his survivors were not entitled to claim benefits under this policy of automobile insurance.

The parties were unable to resolve their disputes through mediation, and Ms. Kamel applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Accordingly, the issues in this preliminary issue hearing are:

1. Was the death of Mr. Alattiya caused by an “accident” as defined in subsection 2(1) of the Schedule?

2. Is either party liable to pay the other’s expenses in respect of the arbitration pursuant to section 282(11) of the Insurance Act?

Result:

1. Mr. Alattiya’s death was not caused by an “accident,” as defined in subsection 2(1) of the Schedule.

2. The decision on expenses is deferred.

EVIDENCE AND ANALYSIS:

The parties filed an Agreed Statement of Facts.² The pertinent facts are:

1. On or about November 19, 2004, Mr. Thualfikar Alattiya was operating cab no. 144 in the City of Windsor when he answered a dispatch call to the 1300 block of Wellington Road at approximately 6:55 a.m. The caller had asked specifically for cab no. 144.

2. When Mr. Alattiya arrived at the destination, three individuals were waiting for him. He was pulled into the back seat and one of the assailants got into the driver’s seat and proceeded to drive the taxi.

3. Mr. Alattiya was assaulted and murdered in his taxi while one of the assailants drove around. He sustained 28 stab wounds to his neck, chest and abdomen.

4. In August 2005, one of the assailants plead guilty to first degree murder and received a life sentence with no chance of parole for 10 years. Another assailant was convicted of second degree murder, and the third has been committed to stand trial for first degree murder. The father of two of the assailants has also been committed to stand trial for manslaughter, as it is alleged he ordered his sons to “rough up” Mr. Alattiya.

5. The motive of the attack was said to be a $1,000.00 donation that Mr. Alattiya had given to the father of two of the assailants in order to help build a religious centre. Apparently there was a dispute following which Mr. Alattiya asked for his contribution back.

6. A claim for funeral and death benefits was made by Ms. Rola Kamel and her three children pursuant to sections 25 and 26 of the Schedule.

7. TD denied the claim by Explanation of Benefits Payable by Insurance Company (OCF-9) and accompanying letters dated February 7 and February 8, 2005.

8. An Application for Mediation was filed by Ms. Rola Kamel on her own behalf and on behalf of her children on June 28, 2005 and mediation took place on November 28, 2005. None of the issues in dispute were resolved at mediation.

9. Ms. Rola Kamel applied for arbitration by way of Application for Arbitration dated October 26, 2006.

The Law

Entitlement to benefits under sections 25 and 26 of the Schedule requires, amongst other things, that an applicant died as a result of an “accident.” The parties dispute whether the cause of Mr. Alattiya’s death was as a result of an “accident,” as defined under the Schedule. The present definition of “accident,” as set out in the 1996 Schedule, subsection 2(1), is as follows:

. . . 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 medical or dental device. [emphasis added]

The definition of “accident” under the previous Schedules included both a direct and indirect causal element.³

The Ontario Court of Appeal in Chisholm v. Liberty Mutual Group⁴ considered the definition of “accident” under the current Schedule. Prior to the current, narrower definition of “accident,” the two part test set out by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia⁵ was regularly applied when determining whether an event was an “accident” covered by automobile insurance. Chisholm stated that although the purpose test may still apply, the causation part of the Amos test has limited relevance and can no longer be used to interpret the definition of “accident.” This approach has been adopted in numerous FSCO decisions.

Black’s Law Dictionary (Revised 4th Edition) defines “direct cause” 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 “efficient cause” definition was first adopted by Arbitrator Novick in Petrosoniak and Security National Insurance Company.⁶ The arbitrator found that this definition implies that a direct cause need not be the only cause or the immediate cause but may be separated by “an unbroken chain of events involving the use or operation of an automobile.” This “efficient cause” definition has been approved in subsequent FSCO decisions as well as by the Court of Appeal in Chisholm.⁷

In examining the meaning of “directly causes,” Justice Laskin, writing for the Court in Chisholm, 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.⁸

In addition, Justice Laskin noted that an intervening act may not absolve an insurer of liability for no fault benefits if it can 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.”⁹

Argument & Reasons for Decision

For the following reasons I do not agree that the incident resulting in Mr. Alattiya’s death was an “accident” within the meaning of the Schedule.

Contrary to the Applicant’s position, I do not accept that the Amos causation test applies given the more stringent causation requirement set out in the 1996 Schedule. In this case, I accept the definition and interpretation of “direct cause” as set out in Chisholm.

The Applicant argues that the premeditated nature of the plan to murder Mr. Alattiya and the specific call for his cab is what set in motion a chain of events that led to his death without the intervention of any new force. The fact that he was held hostage in his cab while being driven around in a remote area and assaulted made the automobile no less an instrument of death than the knife used to stab him.

The Applicant submits that the automobile was a vice which held and entrapped Mr. Alattiya and was not ancillary to the act of assault. Further, the Applicant argues that the specific call for Mr. Alattiya’s cab and the role that the automobile played in his death made the taxi more than merely the site of the crime. The murderers knew that they were going to use Mr. Alattiya’s taxi to drive him around while stabbing him. The Applicant argues that the crime could not have been committed without the use of the vehicle.

The Applicant acknowledges that there have been several court, arbitration and appeal decisions involving the assault of taxi drivers which found that there was no coverage extended for accident benefits.¹⁰ The Applicant submits that the key difference in this case is the premeditated nature of the assault and the use of the automobile in the plot against Mr. Alattiya. Although the cases of Karshe, Kumar, Ekunah and Quraishi have somewhat similar fact scenarios in that they all involve taxi drivers who were assaulted, the Applicant argues that all of those cases involved “random” acts of assault. The Applicant submits that the important difference in this case is that Mr. Alattiya was specifically targeted and sought out by his assailants.

The Applicant argues that the assault cases cited by the Insurer¹¹ involved “random” acts of violence. Whether it was a random shooting, thrown objects or altercations ensuing in an episode of road rage – they all lack the causal connection between the use or operation of an automobile and the claimant’s injuries. In this case, the Applicant argues that the cab being driven and the stabbing cannot be separated as different events and should be viewed equally as direct causes of Mr. Alattiya’s death.

I find however, that the facts of Liu¹² had a similar element of premeditation. Mr. Liu was on a tour bus headed for Casino Rama. While the bus stopped to pick up passengers along the way, three masked gunmen boarded the bus. While the first assailant drove the bus, the other two assailants circulated among the passengers and robbed them of their money, jewellery and credit cards. As Mr. Liu was asleep, one of the assailants smashed a gun into his head and chest to awaken him, whereupon he immediately surrendered his valuables.

Mr. Liu argued that the bus and the gun wielded by the assailants were both direct causes of his injuries and that it was the hijacking that set in motion the chain of events that resulted in his injury. Director Draper found that the focus on the hijackers’ use of the bus in Liu was the “wrong perspective.”¹³ While a hijacking can involve the “use or operation of an automobile,” the hijacking itself is not a “use or operation of an automobile.” I find that this same analysis applies to the case before me.

In this case, the Applicant argues that the attack on Mr. Alattiya was not a random act – there was a specific plan that involved the use of the taxi in the assault. In effect, the Applicant argues that it is the element of premeditation that transforms the use of the taxi into being a direct cause of Mr. Alattiya’s death. However, to accept this approach requires examination and consideration of the assailants’ motive. I am not persuaded that an assailant’s motivation is determinative of whether an event is an “accident” or not.¹⁴

The Applicant argues that Liu can be distinguished by the fact that although the hijacking was planned, the assault against Mr. Liu was not a premeditated part of the crime. Although the relationship between the assailants and Mr. Alattiya and the fact that he was a specific target is a factual distinction I do not find it to be a relevant distinction and I am not persuaded that this changes the outcome.

I find based on the specific facts of this case, that the assault on Mr. Alattiya was an intervening act and the use of the taxi in that assault does not amount to a “direct cause.” I find that the event that set in motion the chain of causation leading to Mr. Alattiya’s death was the assault and not the operation of an automobile. The use of the automobile facilitated the crime and helped the assailants avoid detection – it can be described as both the site and an “instrument” of the crime. Further, I do not find that the intervening act of stabbing in this case was part of the “ordinary course of things” or a normal incident of the risk created by the use or operation of an automobile.¹⁵

I am deeply sympathetic to Ms. Kamel and her children for the loss of a husband and a father. However, for the reasons set out above, I find that the tragic death of Mr. Alattiya was not caused by an “accident” as defined by subsection 2(1) of the Schedule.

Expenses

The Applicant requests her expenses regardless of the outcome. The basis of the Applicant’s request is that this case was substantially factually different from the other assault cases in that it was the only case that involved premeditation of not only the crime but also of a particular victim. The Applicant argues that this difference constitutes a new ground.

The Insurer did not make submissions at the hearing regarding expenses and requested the opportunity to make submissions with respect to expenses at a later date.

I encourage the parties to settle the matter of expenses between themselves. However, if they are unable to reach an agreement, they may request a determination of the issue by writing to the Commission within 30 days of this order, as set out in Rule 79 of the Dispute Resolution Practice Code.

November 23, 2007

Elizabeth Nastasi Arbitrator

ARBITRATION ORDER

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

1. Mr. Alattiya was not involved in an accident within the meaning of subsection 2(1) of the Schedule and accordingly Ms. Kamel’s Application for Arbitration is dismissed.

2. If the parties cannot agree on the issue of entitlement or amount of expenses, they may request a determination of the issue by writing to the Commission within 30 days of this order, as set out in Rule 79 of the Dispute Resolution Practice Code.

November 23, 2007

Elizabeth Nastasi Arbitrator

The 1990 Schedule was similar in that it also contained both an indirect and direct causal element. In the 1990 Schedule “accident” was defined as “… an incident in which the use or operation of an automobile causes, directly or indirectly, physical, psychological or mental injury …” [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 and 303/98.
2. 2Exhibit #1.
3. 3The 1994 Schedule defined “accident” as: “… an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment …” [emphasis added]
4. 4(2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776, (Ont. C.A.).
5. 5In Amos v. Insurance Corp. of British Columbia, (1995) 1995 CanLII 66 (SCC), 127 D.L.R. (4th) 618 (S.C.C.) the insured motorist was driving his van when he was shot and injured during an attack by a gang of six people. The clause at issue in Amos stated that benefits would be paid for injury “…caused by an accident that arises out of the ownership, use or operation of a vehicle…” The Supreme Court of Canada established a two-part test to be applied in interpreting that phrase: 1. The purpose test: Did the accident result from the ordinary and well-known activities to which automobiles are put?; and 2. The causation test: Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellants’ injuries and the ownership, use or operation of the vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incidental or fortuitous?
6. 6(FSCO A98-000198, November 2, 1998).
7. 7Chisholm supra paragraph 30.
8. 8Chisholm supra paragraph 27.
9. 9Chisholm supra paragraph 29.
10. 10Karshe and Non-Marine Underwriters, Mbrs. Of Lloyd's, (FSCO A99-000855, December 15, 2000); Kumar and Coachman Insurance Company, (FSCO A00-000201, April 27, 2001), upheld on appeal, (FSCO P01-00026, August 9, 2002) and aff’d on judicial review June 9, 2004; Ekunah and Simcoe & Erie General Insurance Company, (FSCO A-007550, March 23, 2995); upheld on Appeal (FSCO P-007550, April 22, 1996); Quraishi and Belair Insurance Company Inc. (FSCO A02-000575, November 5, 2002).
11. 11Elensky and Royal & Sun Insurance Company of Canada (FSCO A00-000720, May 31, 2001) confirmed on Appeal (FSCO P01-00030, August 9, 2002); Sarkisian and Co-operators General Insurance Company (FSCO A99-000966, January 17, 2001); Hanlon and Guarantee Company of North America, (FSCO P95-00003, March 18, 1997); Co-operators General Insurance Company and Overley, (FSCO P96-00043, March 20, 1997); Zurich Insurance Company and Lenti (FSCO P98-00030, December 13, 1998); Mahadan and Co-operators General Insurance Company (FSCO A00-000489, March 12, 2001); Kohli and State Farm Mutual Insurance Company, (FSCO A98-000146, March 29, 1999); Chisholm supra; Irving and CGU Insurance Company of Canada (FSCO P03-00022, November 29, 2004); Lafond v. Allstate, 2006 CanLii 4014 (On. S.C.); Liu and Lombard General Insurance Company of Canada (FSCO P02-00030, January 8, 2004); Swaby and Allstate Insurance Company of Canada, (FSCO A02-000926, January 15, 2003), upheld on Appeal (FSCO P03-00004, January 8, 2004).
12. 12Liu supra.
13. 13Liu supra page 6.
14. 14See Director Draper's comments in Liu Appeal supra page 9 and Elensky Appeal supra page 13.
15. 15Chisholm supra paragraph 29