Neutral Citation: 2008 ONFSCDRS 70

FSCO A07-000279

BETWEEN:

JASWINDER SINGH BRAR Applicant

and

ING INSURANCE COMPANY OF CANADA Insurer

DECISION ON PRELIMINARY ISSUES

Before: Maggy Murray

Heard: February 11, 2008, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Paul Caprani for Mr. Brar David Dinner for ING Insurance Company of Canada

Issues:

The Applicant, Jaswinder Singh Brar, was injured in an incident on September 6, 2005. He applied for statutory accident benefits from ING Insurance Company of Canada (“ING”), payable under the Schedule.¹ ING refused to pay Mr. Brar accident benefits on the basis that he was not injured as a result of an “accident” as defined in section 2 of the Schedule. Mr. Brar disagreed. The parties were unable to resolve their disputes through mediation, and Mr. Brar 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 issues are:

Did Mr. Brar sustain an impairment within the meaning of section 2 of the Schedule as a result of an accident?
Is ING required to pay Mr. Brar benefits pursuant to subsection 59(5) of the Schedule?
Is ING liable to pay Mr. Brar’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?
Is Mr. Brar liable to pay ING’s expenses in respect of the arbitration under section 282(11) of the Insurance Act?

Result:

Mr. Brar did not sustain an impairment within the meaning of section 2 of the Schedule as a result of an accident.
ING is not required to pay Mr. Brar benefits pursuant to subsection 59(5) of the Schedule.
The issue of expenses is deferred.

Evidence:

At the time of the incident, Mr. Brar worked as a truck driver for Solda Pools. He arrived at work at 7:00 a.m. on September 6, 2005. He needed to fill his truck with water and tried to drive to the filling station. The route to the filling station was blocked by a truck driven by Mr. Sheridan, another employee of Solda Pools. The Applicant stopped his truck and honked at Mr. Sheridan, who looked in his rear view mirror but did not move his truck. The Applicant drove around Mr. Sheridan’s truck to get to the water tank and thought he may have clipped the right side view mirror of Mr. Sheridan’s truck. The Applicant turned off his truck, opened the truck door and was dragged out by Mr. Sheridan, who then threw the Applicant against the truck’s fender.

Frank Solda, one of the owners of Solda Pools, broke up the fight. According to the Applicant, when he tried to get into his truck after the fight, he did so through the passenger side door because the driver’s side door would not open. The Applicant then continued working. Later that day, the Applicant was in pain and the following day, he went to see his family doctor.

Analysis:

i) Did Mr. Brar sustain an impairment within the meaning of section 2 of the Schedule as a result of an accident?

If the above events are an “accident” within the meaning of section 2 of the Schedule, Mr. Brar is entitled to statutory accident benefits. If the above events are not an “accident” within the meaning of section 2 of the Schedule, then Mr. Brar is not entitled to statutory accident benefits.

The Applicant argued that his body was used as a weapon and slammed into his truck and consequently, he was injured. ING does not dispute that there was an altercation between the Applicant and Mr. Sheridan. However, ING believes that the incident between the Applicant and Mr. Sheridan was an assault,² not an “accident” as defined in section 2 of the Schedule.

The relevant portion of section 2 of the Schedule states:

“accident” means an incident in which the use or operation of an automobile directly causes an impairment …

Whereas the definition of “accident” in the Statutory Accident Benefits Schedule - Accidents after December 31, 1993 and before November 1, 1996 (Bill 164) included incidents that were both “directly or indirectly” caused by the use or operation of an automobile, the current Schedule³ (Bill 59) narrowed the scope of coverage to incidents caused “directly” by the use or operation of an automobile.⁴ The requirement that the incident is “directly” caused by the use or operation of the automobile means that the causation test in Amos⁵ is no longer applicable to cases under the current Schedule.

The Schedule’s definition of “accident” requires answers to the two questions: (1) Did the incident involve the use or operation of an automobile? Stated differently, did the incident result from the ordinary and well-known activities to which automobiles are put? This is also known as the “purpose” test in Amos.⁶ (2) If so, was such use a direct cause of the Applicant’s injuries?⁷ The Applicant must demonstrate that the use of the vehicle or its operation directly caused his injuries.

1. Purpose Test:

The Applicant’s evidence was that he turned off his truck, opened the truck door and was dragged out of the truck by Mr. Sheridan, who then threw the Applicant against the truck’s fender. Turning off the truck ended the Applicant’s use and operation of the truck prior to the Applicant’s injuries. Therefore, the purpose test is not satisfied.

2. Direct Cause Test:

Further, even if the purpose test applied, which it does not, the Applicant submitted that it was the truck that caused his injuries, as evidenced by the dent in the truck’s driver side door.⁸

I disagree with that submission. In my view, the Applicant’s injuries were caused by Mr. Sheridan. The force that propelled the Applicant into the door originated from Mr. Sheridan. The truck was merely an inanimate object that was not in operation. Stated differently, if the Applicant was standing beside the truck and Mr. Sheridan didn’t throw him into the truck, the Applicant would not have injured himself. Even if it could be said that the truck played a role in causing the Applicant’s injuries, I find that the truck was not a direct cause of those injuries.

The only role played by the use or operation of the truck was to create an “atmosphere of hostility”⁹ between the Applicant and Mr. Sheridan. Although the truck was at the location¹⁰ of the assault on the Applicant, it was not the cause of his injuries and therefore the incident is not an “accident” within the meaning of section 2 of the Schedule.

The answers to both of the above questions, then, are no. Consequently, the connection between the use or operation of the truck and the Applicant’s injuries is not sufficient to be covered by automobile insurance.

ii) Is ING required to pay Mr. Brar benefits pursuant to subsection 59(5) of the Schedule?

The Applicant claimed he was entitled to receive benefits pursuant to subsection 59(5) of the Schedule. ING claimed that Mr. Brar was precluded from receiving benefits under the Schedule because he was not involved in an “accident.” The relevant portions of section 59 of the Schedule state:

(1) The insurer is not required to pay benefits under this Regulation in respect of any insured person who, as a result of an accident (emphasis added), is entitled to receive benefits under any workers’ compensation law or plan.

(2) Subsection (1) does not apply in respect of an insured person who elects (emphasis added) to bring an action referred to in section 30 of the Workplace Safety and Insurance Act, 1997 so long as the election is not made primarily for the purpose of claiming benefits under this Regulation.

(5) Despite subsection (1), if there is a dispute about whether subsection (1) applies to a person, the insurer shall pay full benefits to the person under this Regulation pending resolution of the dispute if,

(a) the person makes an assignment to the insurer of any benefits under any workers’ compensation law or plan to which he or she is or may become entitled as a result of the accident (emphasis added) …

Analysis:

The benefits set out in the Schedule are payable for “accidents.”¹¹ Because Mr. Brar was not involved in an “accident” as defined in section 2 of the Schedule, ING is not required to pay him benefits pursuant to subsection 59(5) of the Schedule. No valid election as to whether to receive benefits under the Schedule or Workplace Safety and Insurance Board Benefits was made by Mr. Brar because he was not injured as a result of an “accident” within the meaning of section 2 of the Schedule.

EXPENSES:

I exercise my discretion to award ING its expenses in this preliminary issues hearing. If the parties are unable to agree on the issue of quantum, they may make submissions in accordance with Rule 79 of the Dispute Resolution Practice Code – Fourth Edition.

May 1, 2008

Maggy Murray Arbitrator

Date

Financial Services Commission of Ontario