Daniel Whipple v. Economical Mutual Insurance Company, 2010 ONFSCDRS 131

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 131

FSCO A09-002745

BETWEEN:

DANIEL WHIPPLE

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Susan Sapin

Heard: May 11, 2010, St. Catharines

Appearances: Martin Tiidus for Mr. Whipple

Christopher Schnarr for Economical Mutual Insurance Company

Issues:

The Applicant, Daniel Whipple, was catastrophically injured on June 26, 2009, while returning home in a luxury limousine coach (the “limo bus”) from a day of golfing and partying in the company of eleven other (male) golfers, when he attempted to do a headstand against a pole in the centre of the limo bus. He fractured his neck, resulting in incomplete quadriplegia, and will spend the rest of his life in a wheelchair. Economical Mutual Insurance Company (“Economical”) refused to pay statutory accident benefits under the Schedule,¹ on the basis that Mr. Whipple’s injuries did not result from an “accident” within the meaning of the Schedule.

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

The preliminary issue is:

1. Was Mr. Whipple injured as a result of an “accident” as defined in section 2(1) of the Schedule?

2. Is either party entitled to its expenses of this preliminary issue hearing?

Result:

1. Mr. Whipple was injured as a result of an “accident” as defined in the Schedule.

2. If the parties are unable to agree on the matter of expenses of this preliminary issue hearing, either party may request, in writing and within 30 days of the issuing of this decision, an appointment before me to determine expenses, as per Rule 79 of the Dispute Resolution Practice Code.

ISSUE:

Under subsection 2(1) of the Schedule, “‘accident’ means an incident in which the use or operation of an automobile directly causes an impairment . . . .”

The parties agree that the applicable test of whether an incident is an “accident” in the context of no-fault motor vehicle insurance is the two-part test articulated in numerous court and arbitration decisions:

1. Did the incident result from the ordinary and well-known activities to which automobiles are put? [The “purpose” test.]

2. Did the use or operation of an automobile directly cause an impairment? [The “causation” test.]

Economical submits Mr. Whipple does not meet either test, because an attempted handstand² in the back of a moving vehicle by an inebriated 62-year-old man cannot be considered among the normal, ordinary or well-known activities to which automobiles are put, nor can it be said that in this case, the use or operation of the limo bus was a direct cause of Mr. Whipple’s injuries. Mr. Whipple, for his part, maintains that his “antic,” as he put it, was within the context of the use of the limo bus as a “party vehicle,” and as such fell within the normal use and operation of the limo bus as part of a private limousine service. He further submits that the vehicle itself was a direct cause of his impairment.

For the reasons set out below, I agree, and find that Mr. Whipple has met his onus, on a balance of probabilities, of proving that his impairment was the result of an accident under the Schedule.

EVIDENCE:

Background and findings

The parties submitted statements from Mr. Whipple and some of the passengers, photographs of the group’s activities in the bus taken by Mr. Whipple just before he attempted his headstand, and a printout of the website of Premier Limousine, the company that rented out the limo bus to Mr. Whipple and his group. Mr. Whipple testified, as did David Ripley, a fellow passenger; Robert Dick, the owner of Premier Limousine; and Richard Berry, the driver provided by Premier for the trip in question. Their testimony was straightforward and credible, and, for the most part, the facts are not in dispute.

Mr. Whipple retired from banking after 35 years and spent a further six years selling real estate. He served as a Catholic school board chairman and at the time of the accident consulted to the board on community use of schools. He was an avid golfer and skier. He had organised yearly golf trips for his bank colleagues for 35 years, and this particular golf trip with fellow members of the Lookout Golf Club, a private club in Fonthill, Ontario, for the past five years. He described the group as respectable business and professional men over the age of 50. The club had membership privileges at a golf club in New York State, about a two-hour drive from Fonthill, and the men were returning via Interstate 90 from a day of golfing at that club when Mr. Whipple was injured at about 10:30 in the evening.

I accept the following facts as true.

The group had rented limo buses several times from Premiere in the past without incident. Photographs provided by the Applicant and from the company’s website indicate the company operates a fleet of eleven vehicles of different types, including town cars, stretch limousines, sedans, at least one Hummer, and “Limo Coaches” holding up to 24 and 30 passengers. The limousines and coaches come equipped with various amenities, depending on the vehicle. These include large-screen televisions, DVD and CD players and sound systems, mirrored ceilings, fibre optic mood lighting, laser or strobe lights, insulated ice buckets and champagne buckets, champagne and rock glasses, crystal decanters. Some vehicles, including the limo bus in question, have “privacy partitions” or “black-out sliders” between the driver and passenger compartments, such that the driver cannot see into the passenger compartment when the divider is closed. The 24-passenger bus rented by Mr. Whipple is advertised as a “Party Bus,” and the website advertises “we can provide service and transportation needs to fit the client requests.”

The limo bus rented by Mr. Whipple’s group differs from the more familiar “stretch” limousines in three key respects: it has wrap-around seating down both sides and the back, instead of bench seating down one side only; it is taller, like a regular coach bus or truck (which it most resembles), and passengers can stand up in it, with headroom to spare; and it has a pole with a light above it in the center of the wrap-around seating in the rear of the vehicle, referred to by all of the witnesses, including the owner and driver of the vehicle, as a “stripper pole.” All the witnesses agreed, and I find, that the pole was an amenity of the vehicle, was intended to be used as one, and was so used by various members of the group on the evening of the incident. I heard no evidence that the pole was there for either safety or stability purposes.

Mr. Whipple organised the golf trip and requested the limo bus for his group, rather than a regular coach or a “stretch” limousine, so the men could move around freely, talk to each other, bring their own alcohol on the bus and drink beer, wine and other alcoholic and non-alcoholic beverages, sit down together to plan the details of their golf game, and generally “party” as they had done on previous trips.

Mr. Whipple and Mr. Ripley both described the day’s events, which began around 8:00 a.m. when the group began to gather at Mr. Whipple’s house, where the limo bus picked them up for the two-hour trip to the Stafford Golf and Country Club in New York State. The men brought a cooler of caesars and four cases of beer onto the bus with them. Some started off with alcoholic drinks, but Mr. Whipple stuck with coffee until they reached the border, after which he “may have had one or two beers.” Mr. Whipple stated the driver stopped at the duty-free store at the Rainbow Bridge, where some of the men bought a small quantity of alcohol and cigarettes. Mr. Ripley could not recall if they stopped at the duty-free store, but stated the group had done so on past trips, to buy alcohol and cigars, even though smoking was not allowed on the bus. Premier’s owner, Mr. Dick, confirmed that the company did not actually supply alcohol as part of its service, but did not discourage clients from bringing their own alcohol on the bus and the drivers were instructed to accommodate clients’ wishes “within reason,” which included stops to pick up duty-free alcohol and drinking alcohol on the bus. I find the ability to consume alcohol on the bus while in transit was an ordinary and expected use of the vehicle, was part of the service provided by the company, had been chosen for that reason by the group in the past, and was one of the reasons Mr. Whipple chose it on behalf of his group on this occasion.

Mr. Whipple testified the group continued to consume alcohol in varying, but not excessive, amounts throughout the afternoon. They had hamburgers at the 9th tee; Mr. Whipple had only a beer, as he found drinking alcohol in the hot sun too dehydrating. The game ended about 3:00 p.m., and the men gathered on the club patio for drinks and nibbles, followed by dinner with more beer and wine. There is no dispute that by the time they were ready to board the bus some time after 8:00 p.m., they were “fairly inebriated.” Mr. Berry, the driver, who was necessarily sober and the most likely to have the most reliable opinion about the condition of the group, stated that they were “intoxicated but not belligerent or disrespectful, they were mannerly but having a good time,” which is how Mr. Whipple and Mr. Ripley remember it. Mr. Berry had re-packed the beer remaining on the bus on fresh ice. Some of the group boarded the bus with drinks in hand, and the partying continued. As Premier’s website suggests and Mr. Dick, the owner, stated, “that’s why we are hired.” I find the level of intoxication of the group members on this occasion was neither unreasonable, unexpected, or cause for concern within the context of the type of business operated by Premier Limousine.

According to Mr. Ripley, who was drinking less than the others because his leg was in a walking cast (which did not prevent him playing golf that day) due to a broken ankle three months before, Mr. Whipple attempted his headstand about a half hour into the return trip. It was dark out, the bus was on the highway, there was a movie playing, the mood lighting was on, and up until that point, some of the men had been amusing themselves and the others with a rudimentary form of “pole dancing,” i.e., cavorting around the pole at the rear of the bus, mimicking the antics of strippers, and generally acting silly. Photographs taken by Mr. Whipple just before he tried his headstand show the various activities. Mr. Ripley testified that one gentleman wrapped his leg around the pole and swung down the pole, and another went upside down and rotated down, to the amusement of his companions.

Mr. Whipple testified each one was trying to “out-do” or one-up the others, raising the ante so to speak, and this is likely what prompted him to attempt a headstand and one-up them all. He testified, and I accept, that he has done headstands before. He cited as an example a successful headstand performed against the wall of a condominium in Mont-Tremblant during a ski trip the year before. Mr. Whipple is a tall, slim man. He considered himself a fairly athletic (and adventurous) golfer and skier and stated he was confident he could do a headstand, did not think it would be dangerous to attempt it, and would not have done it if he had thought it was a dangerous thing to do.

Unfortunately for Mr. Whipple, his attempt ended badly.

Mr. Ripley described the headstand. Mr. Whipple walked normally up to the pole, placed his head on the floor, braced himself with his hands and flipped his legs in the air, caught one foot on the pole, missed it, his arms gave out, his forehead hit the floor and his neck snapped. He lay there with his legs straddling the pole. Mr. Whipple stated he intended to brace his legs against the pole and expected someone would catch him if he missed, which did not happen. He recalled he felt his neck “go” and that his head caught under the seat. At that point he knew he was seriously injured because he could not feel his legs. His friends stabilized his body and instructed Mr. Berry to keep driving and get Mr. Whipple to a hospital across the border in Canada.

I accept the facts narrated above as true and base the analysis below on those facts.

ANALYSIS:

The jurisprudence on the issue of what constitutes an “accident” under the Schedule is fairly well settled, and the parties agree that for Mr. Whipple to succeed he must establish, on a balance of probabilities, that the use or operation of the motor vehicle directly caused his impairment, according to the two-part “purpose” and “causation” test set out in the jurisprudence and referred to above. The parties relied on a number of leading and other Court and arbitration decisions in support of their respective positions.

The “purpose” test: Did the incident result from the ordinary and well-known activities to which automobiles are put?

As noted, Economical disputes that Mr. Whipple’s headstand was an ordinary or well-known use of an automobile. It characterized Mr. Whipple’s headstand as an “abnormal,” “extreme,” “high risk,” “unanticipated” and “unexpected . . . gymnastics manoeuvre” that was so “offbeat” it could not possibly be considered within the ordinary use of a motor vehicle, even acknowledging the limo bus as a mobile party vehicle. It submitted that being upside down in a moving vehicle should rarely, if ever, be acknowledged as a common and ordinary use, and use of the pole in that manner was “dangerous and excessive.” It suggested that although an injury sustained while swinging around the pole in the luxury coach might be covered, thus implicitly acknowledging the key role of that particular amenity, an injury sustained while attempting a headstand should not.

The question then, is, what is it about the headstand, exactly, that takes it out of the “ordinary or well-known use” category? Or does not?

According to Economical, the answer is the unexpectedness of the activity, and the severity of the risk. Economical submitted the dramatic increase in Premier’s insurance premiums after the accident by Aviva³, Premier’s insurer, indicates Aviva did not anticipate such an unusual use of the vehicle when it insured it. The particular activity was outside the reasonable expectation of the parties. This, suggests Economical, is evidence the vehicle was not being used “in a manner that would be covered by the insurance at all.”

This is an important point. Economical’s characterisation of Mr. Whipple’s headstand as “high-risk,” even dangerous, raises an important aspect of the purpose test that must be examined − whether the vehicle was being used in a manner that would be covered by no-fault insurance in the first place.

As stated by the Director’s Delegate in CGU Insurance Company of Canada and Irving,⁴ “The purpose test is important because it focuses on the ultimate coverage question: was this the sort of loss the legislature intended the SABS to cover?” In Greenhalgh v. ING Halifax Insurance Co.,⁵ the Supreme Court stated the test remains relevant to the SABS because it is consistent with the expectations of the parties and it circumscribes the proper scope of the legislation: “neither insurance companies nor the insured would expect coverage to extend to any and every use to which a car may be put, no matter how unforeseen or unprecedented . . . before determining [causation], it has to be determined whether the car was being used in a manner that would be covered by the insurance at all.”

I find the question must be answered in the affirmative in Mr. Whipple’s case, for two reasons. Firstly, I heard no evidence about Aviva’s expectations, or what activities it thought it was insuring under its policy with Premier.

Secondly, I do not agree with Economical’s position that the risk associated with the headstand is a factor that takes it out of the ordinary use of the vehicle in this case, or outside of the parties’ expectations. Counsel for Economical raised the issue of risk when it pointedly asked Mr. Whipple on cross-examination, if he did not agree that it was “dangerous for a 60-year-old man” to attempt a headstand on a bus. Mr. Whipple did not agree and replied that if he had thought it was dangerous, he would not have done it, adding, “I am not a stupid person. I did it because I thought I could do it.”

Economical’s characterization of Mr. Whipple’s headstand as high risk (a “dangerous” activity for a “60-year-old-man”), comes dangerously close to importing tort concepts of risk and foreseeability − negligence, in fact − into the purpose test, concepts which do not belong in a first-party no-fault system. In the no-fault benefits scheme under the Schedule, the parties’ expectations about what is covered, and a first-party insurer’s liability for statutory benefits, are governed by what qualifies as an “accident” under the Schedule – the negligence of the insured person is not a factor.

As stated in Bush v. State Farm Mutual Automobile Insurance Co.,⁶ an accident is an “unlooked for mishap or an untoward event which is not expected or designed.” In determining that “foreseeability of the reasonable man as employed in the law of negligence, is not the test to be adopted in determining whether there was an accident,” Kealey J. relied on the reasoning of the Supreme Court in Stats v. Mutual of Omaha Insurance Co.: ⁷

Negligence is a finding made whereby the conduct of a person is judged by the concept of a reasonable man under certain circumstances. A person may be found to have been negligent or even grossly negligent but at the time that that person performed the acts in question he might never have thought himself to be negligent. If, on the other hand, the person realized the danger of his actions and deliberately assumed the risk of it then . . . his actions could not be characterized as accidental.

These decisions taken together emphasise the importance of interpreting the meaning of “accident” within the no-fault context. Whether a particular activity associated with a motor vehicle is or is not itself inherently dangerous is not determinative. The test is whether the activity could reasonably be expected to fall within the “use or operation” of the vehicle, as set out in the Schedule and interpreted by the Courts and this tribunal to mean the ordinary or well-know use.⁸ And that depends on context.

I find Mr. Whipple’s headstand, in the circumstances of this case, was within the ordinary use and operation of Premier’s limo bus as a “party vehicle,” for the reasons set out below.

Since the Supreme Court of Canada’s decision in Stevenson v. Reliance Petroleum Ltd.,⁹ judges and arbitrators have confirmed that the term “use or operation” of a motor vehicle must be broadly interpreted to mean ordinary and well-known uses:

The expression “use or operation” would, or should, in my opinion, convey to one reading it all accidents resulting from the ordinary and well-known activities to which automobiles are put, all accidents which the common judgment in ordinary language would attribute to the utilization of an automobile as a means of different forms of accommodation or service.

In specifying the damage done by the motor vehicle in that case (an oil tanker truck, which set a gas station on fire due to the negligent transfer of gas from truck to station reservoir), Rand J. further added: “That phrase contemplates the damage done by such a vehicle in use or operation within the scope and course of its ordinary features.” [emphasis added].

Rand J.’s statements and reasoning support the proposition that, in order to determine the ordinary and well-known use or operation of a motor vehicle for purposes of the Schedule, one must take into account, not only motor vehicles or “motoring purposes” in general, but the ordinary and expected use of vehicles legitimately outfitted for particular purposes, as a number of commercial, utility and other vehicles commonly are. In this case, I find Premier’s limo bus was designed to be used and operated as a “mobile party vehicle,” and Mr. Whipple’s attempted headstand was “within [its] scope and ordinary features.” Although Mr. Whipple’s use of the limo bus was unprecedented, I find it was in the context of the group’s activities in the vehicle that evening and within the scope of its function as a mobile party vehicle, for the following reasons.

I find the vehicle itself was marketed as a “party vehicle” with a fairly generous scope. As noted above, the company’s website advertised the vehicle as a “Party Bus” and stated the company would provide “service and transportation needs to fit the client requests.” In addition to his evidence noted above, Mr. Dick, the owner, who has operated the company for eleven years, confirmed the vehicle was advertised as a “party bus” because that is what it would be “labelled as in the industry;” that it functioned as a “mobile party room;” and that a wide range of clients were willing to pay more for the “party atmosphere” and safety it afforded. Alcohol was permitted, and the bus contained amenities similar to those found in nightclubs or dance clubs, including the “stripper pole.” Mr. Dick confirmed that what constituted a “party” was “in the eye of the beholder,” meaning the client. He acknowledged that “serious boisterous play for sure happens with alcohol.” He considered the use made of the pole by members of Mr. Whipple’s group to be an “expected use” that was not prohibited, as did the driver, Mr. Berry, although neither had ever heard of anyone attempting a headstand before. Their testimony was not challenged on cross-examination, nor did Economical provide any independent evidence to challenge the testimony of the witnesses about what would be considered “ordinary” use of a “party bus.”

The few restrictions on the use of the limo bus are further evidence that the activities of Mr. Whipple’s group, including Mr. Whipple’s headstand, were not outside the scope of its use and operation. Mr. Dick and Mr. Berry confirmed there was no written policy or contract dictating how the vehicle could be used, nor were any rules or policies communicated to Mr. Whipple when he rented the vehicle. There was no evidence of any waiver − express or implied. The only rules appear to have been that illegal activity (such as drugs, and presumably, underage drinking) and smoking were not allowed, and if the driver became aware of any inappropriate or unsafe conduct (overly boisterous horseplay, for example), it was within his discretion to stop the vehicle and either warn the clients, or terminate the ride if necessary, which would involve leaving the clients to find their own way home, actions Mr. Berry testified he had taken on occasion in the past with other groups.

I find the group’s partying activities were integral to the ordinary use of the limo bus. They made full use of the vehicle and all of its amenities, including the stripper pole, as the vehicle and its amenities were intended to be used. I accept Mr. Whipple’s evidence, supported by photographs of the activity around the pole, that there was a sort of competition going on, that each successive person was trying to out-do or “one-up” the previous one in coming up with antics using the pole. I accept Mr. Ripley’s evidence that by the time Mr. Whipple took his turn, someone had already swung down the pole upside down. I find Mr. Whipple’s headstand was the culminating activity in a series of antics involving the use of the pole.

In determining whether a particular incident directly caused an impairment and so qualifies as an accident under the Schedule, judicial and FSCO decisions distinguish between incidents involving the ordinary use or purpose of a motor vehicle, which count as accidents; and indirect, incidental, ancillary, or “offbeat” uses, which do not. Some examples where incidents were found not to qualify as accidents are:

The vehicle is used for a “non-motoring purpose,” for example:

• a drunk person jumping off the roof of her car into shallow water, and breaking her neck (example cited by the Supreme Court in Vytlingham;¹⁰

• a person using the hook of a disabled tow truck in a scrapyard to prop up a truck flatbed which fell on him and killed him as he was breaking it up for scrap;¹¹

• a non-roadworthy vehicle used to store dynamite, which then blows up;¹²

• A car bomb remotely detonated by a third party when the driver enters the vehicle, seriously injuring the driver;¹³

The vehicle serves simply as the locus, opportunity or motive for the incident, e.g.,

• a passenger in a bus bound for Casino Rama assaulted and injured by a person who hijacked the bus;¹⁴

• cases where drivers (often taxi drivers) or occupants of motor vehicles have been the victims of assaults or gunshots, or objects thrown by other drivers or occupants of moving vehicles.¹⁵

Unlike in the examples above, I do not find Mr. Whipple’s use of the limo bus to be ancillary to its purpose as a party bus, or sufficiently “offbeat” or extreme to be excluded from the purpose test in the particular circumstances of this case. I find his headstand, though unusual, was within the scope of activities one could expect to take place in the back of a party bus, among a group of men with a mind to “party,” with the freedom, privacy and amenities provided, permitted or tolerated by the company – amenities which included lights, music, alcohol, and, most importantly, a stripper pole. That the pole would be, and was used as a “stripper pole” by members of this particular group was a key factor, and no surprise to anyone. In that context, I find the presence of the “stripper pole” was itself an invitation to precisely the type of activity that took place. I find the headstand, coming as it did at the tail end of a series of antics involving the stripper pole, was within the context of the evening’s activities and within the scope of the ordinary use of the pole and the party bus itself.

In an effort to characterize the headstand as well beyond the scope of what could be considered “ordinary” or “expected” behaviour, counsel for Economical compared the headstand to other examples of “party behaviour”, suggesting no one in the group would have engaged in “mooning,” or shaking up bottles of beer and spraying each other for example. The point being, if I understand it correctly, that not all aspects of partying, even in a “party bus,” would be considered reasonable or acceptable and therefore “ordinary” behaviour. I did not find this argument compelling. Rather, I find the combination of like-minded people out for a good time, alcohol, a venue equipped with a wide variety of party amenities and few restrictions, and a corporate philosophy that what is a party “is in the eye of the beholder,” is a set-up for a very wide range of behaviour, including behaviour that is unpredictable and might seem unreasonable outside of that particular context.

What was unforeseeable in this particular case was not the headstand itself, but the catastrophic injury that resulted. The incident itself was an accident in every sense of the meaning, an “unlooked for mishap or an untoward event which is not expected or designed.”

For all of these reasons, I find Mr. Whipple meets the purpose test.

The “causation” test: Did the use or operation of an automobile directly cause an impairment?

Since the decision in Petrosoniak and Security National Insurance Company¹⁶, the starting point for answering this second question posed by the two-pronged test has been the definition of direct cause found in Black’s Law Dictionary relied on by Arbitrator Novick: “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.”

The simplest analogy, drawn by Laskin J. in Chisholm v. Liberty Mutual Group¹⁷, is of “something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act.” As reality is never that simple, a more helpful image of causation is that of a net, as drawn by the judge in Leyland Shipping Company Limited v. Norwich Union Fire Insurance Society, Limited:

Causes are spoken of as if they were as distinct from one another as beads in a row or links in a chain, but – if this metaphysical topic has to be referred to – it is not wholly so. The chain of causation is a handy expression, but the figure is inadequate. Causation is not a chain, but a net. At each point influences, forces, events, precedent and simultaneous, meet; and the radiation from each point extends infinitely . . . Where various factors or causes are concurrent, and one has to be selected, the matter is determined as one of fact, and the choice falls upon the one to which may be variously ascribed the qualities of reality, predominance, efficiency. ¹⁸

Imagining causation as a net rather than a linear concept is consistent with Laskin J.’s acknowledgment in Chisholm that “road accidents may occur where there is more than one direct cause of a victim’s injuries and one of the direct causes is the use or operation of an automobile.”¹⁹ In other words, the use or operation of the automobile need not be the only cause for an insured person to be entitled to statutory accident benefits.

A number of leading court and arbitration cases offer additional guiding principles for determining direct causation. Two particularly useful principles, “intervening cause” and “dominant feature,” were suggested by the Court of Appeal in Greenhalgh:

1. In some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be considered a normal incident of the risk created by the use or operation of the automobile; and

2. In other cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct.”²⁰

In Seale, Arbitrator Makepeace held other factors connecting the use or operation of the motor vehicle to an impairment would be time, proximity, and activity.²¹ She further reaffirmed the principles that direct cause need not be the only cause, that physical contact with an automobile was not required, and that a subsequent contributing cause might not break the chain of causation if it was part of “the ordinary course of things.”²²

With respect to direct causation, Economical argued that the headstand directly caused the impairment. The headstand was an intervening act, not part of the normal entertainment or amenities provided by the luxury coach, and not a common and well-known use of an automobile. Economical submitted that, “applying the test in Greenhalgh, the aspect of the situation that most directly caused Mr. Whipple’s injuries was his misjudgement of the pole when attempting the headstand. This was not a routine, customary, ordinary or well-known use of a vehicle, and the chain of causation was broken when he made the decision to do a headstand. He was not walking in the vehicle or swinging around the pole when he fell and hurt himself; his decision to do a very unusual action was a break in the chain.”

I reject this argument. I do not believe Mr. Whipple’s decision to attempt a headstand, or the headstand itself, can be said to be intervening acts in the sense of “any force started and working actively from a new and independent source,” according to the definition accepted since Petrosoniak. To my mind, the more accurate view of the headstand, as stated above²³, was that it was the culminating activity in a series of antics where the participants, all occupants of a motor vehicle, were entertaining each other by using an obvious amenity in the vehicle, while the vehicle was in use on a highway, exactly as the vehicle was intended to be used. In this particular case, that was the “motoring purpose” of that particular type of vehicle. Furthermore, in using the pole to entertain themselves, I accept Mr. Whipple’s evidence that members of the group were attempting to out-do or one-up each other in their creative use of the pole. As noted above, in this context, the headstand, though unusual, flowed naturally from the increasingly creative activities around the pole, which was an integral part of the vehicle. There was no break in the chain of causation.

Economical also argued that the headstand, or Mr. Whipple’s misjudgement in missing the pole, and not the use or operation of the motor vehicle, were the dominant features of the incident leading to Mr. Whipple’s impairment. I do not accept this argument. I find the dominant feature was the party bus itself and its integral stripper pole, in operation and used for the purpose it was designed. The use of the pole by the occupants, including Mr. Whipple, was not incidental to the use and operation of the vehicle − it was a key element, and meets the dominant feature test. On the same reasoning, I reject Economical’s argument that the vehicle was merely the location or opportunity for the headstand. That might have been the case had there been no stripper pole. Again, however, that particular amenity was integral to the vehicle and to the group’s activities that evening.

I find the circumstances of this case to be most similar to those in Seale, and that the same logic and reasoning should apply. In that case, the Director’s Delegate upheld the decision of the arbitrator that an accident occurred when Mrs. Seale slipped and fell on an icy road after leaving her van, which had stalled in a snowbank. The van started to slide downhill, and she was chasing after it to try and regain control of it when she slipped on the ice and broke her arm. The Director’s Delegate found that going after the van to prevent it from sliding into an intersection, and slipping on the ice, were not intervening causes but “part of the ordinary course of things.” The entire sequence of events was one incident, and there was a “perfect chain” between losing control of the van on the icy road and slipping on it while trying to retrieve her vehicle, and that use or operation of the vehicle was the dominant feature.²⁴ Similarly, in Mr. Whipple’s case, I find the activities around the “stripper pole” were “part of the ordinary course of things” for the party bus, and that once the activities around the pole began, they continued in an unbroken chain, the last link being Mr. Whipple’s headstand.

One final point needs to be addressed. In its argument, Economical suggested that, because Mr. Whipple testified that he did not know why he fell, there was no evidence that “anything the vehicle did” contributed to his injuries. I take this to mean, that Economical’s position is that there was nothing in the manner of driving that directly contributed to Mr. Whipple’s injuries, i.e., the vehicle did not hit any obstacle (pothole, debris etc.) or accelerate or decelerate suddenly, swerve or brake. This accords with the testimony of Mr. Berry, the driver, who described the trip as a “smooth, clean ride.” Were there anything in the manner of driving to cause a jarring which would cause Mr. Whipple to miss his headstand, then the situation would be akin to that in Heredi v. Fensom²⁵, and there would be no dispute. In that case, the driver of a Paratransit bus placed one end of a passenger’s crutches under her arm and braced the other end against the interior wheel well. The parties agreed the driver then “operated the bus in such a manner so as to cause the plaintiff’s crutches to jar her right shoulder, thereby causing injury.”²⁶

However, although Mr. Whipple agreed there was no unusual movement of the vehicle that could have caused him to miss the pole when he attempted his headstand, neither he nor Mr. Ripley agreed the ride was “smooth.” Mr. Ripley, who was wearing a walking cast that did not prevent him from golfing and stated he drank little because of it, stated the normal motion of the bus on the highway was sufficient that he did not feel he could get up and move around safely, so he remained seated. Mr. Whipple testified the normal motion of the bus was akin to the swaying motion one would find on a train.

I accept the testimony of both men on this point. I find, on the basis of ordinary driving experience, informed common sense and basic physics, that there is an appreciable difference between a stationary surface, including a stationary vehicle, and one in motion on a highway, regardless of how “smooth” the characterization of the driving experience. By appreciable, I mean the motion, however slight, can be transmitted to the occupant of a moving vehicle, regardless of whether or to what extent they may be aware of it. To the extent the parties still dispute whether the motion of the party bus itself directly contributed to Mr. Whipple’s injuries, I reject Economical’s argument that it would not have played any role.

EXPENSES:

If the parties are unable to agree on the matter of expenses of this preliminary issue hearing, either party may request, in writing and within 30 days of the issuing of this decision, an appointment before me to determine expenses, as per Rule 79 of the Dispute Resolution Practice Code.

November 15, 2010

Susan Sapin Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2010 ONFSCDRS 131

FSCO A09-002745

BETWEEN:

DANIEL WHIPPLE

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

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

1. Mr. Whipple was injured as a result of an “accident” as defined in subsection 2(1) of the Schedule.

November 15, 2010

Susan Sapin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Economical described the activity as a “handstand” throughout, although it appears from the testimony of Mr. Whipple and Mr. Ripley that what was actually attempted was a headstand, as Mr. Whipple did place his head on the floor, as well as his hands, before swinging his legs up.
3. 3Testimony of Mr. Dick, Premier’s owner
4. 4(FSCO P03-00022, November 29, 2004) p.10
5. 5(2004) 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338
6. 61996 CanLII 8241 (ON CTGD), [1966], 31 O.R. (3d) 312 (Ont. Crt. Gen. Div). That case dealt with whether collision coverage could be denied on grounds of public policy, where the insured had crashed an automobile while evading police, on the basis that the loss was not accidental.
7. 71978 CanLII 38 (SCC), [1978] 2 S.C.R. 1153
8. 8In any event, I find Mr. Whipple’s testimony that if he had thought his headstand was a dangerous thing to do, he would not have done it, is a complete answer to any suggestion of Economical’s that negligence on Mr. Whipple’s part was or should be a factor in excluding his actions from the definition of accident in the Schedule.
9. 91956 CanLII 27 (SCC), [1956] S.C.R 936
10. 10Citadel General Insurance Co. v. Vytlingham 2007 SCC 46, [2007] 3 S.C.R. 373
11. 11Clause and Montour et al. and RBC General Insurance Company, (FSCO A08-000962, A08-000964, A08-000965 and A08-000966, August 31, 2010)
12. 12Another example from Vytlingham
13. 13Zurich Insurance Company and Lenti (FSCO P98-00030, December 18, 1998). The result may have been different if the bomb had in fact been detonated when the key was turned in the ignition, as opposed to being detonated remotely.
14. 14Lombard General Insurance Company of Canada and Liu (FSCO P02-00030, January 8, 2004)
15. 15CGU Insurance Company of Canada and Irving (FSCO P03-00022, November 29, 2004); Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776; and Kennedy and Gore Mutual Insurance Company (FSCO A07-002444, March 26, 2009).
16. 16(FSCO A98-000198, November 2, 1998)
17. 172002 CanLII 45020 (ON CA), 60 O.R. (3d) 776
18. 18[1918] H.L. (E.) 350
19. 19Chisholm at p.9
20. 20(2004) 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338
21. 21Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003, approved in Federation Insurance Company of Canada and Saad (FSCO P03-00017, January 8, 2004)
22. 22CGU Insurance Company of Canada and Irving (FSCO P03-00022, November 29, 2004), p.12
23. 23at pp. 12 & 13 of this decision
24. 24Seale at p.17
25. 25[2002] 2. S.C.R.741
26. 26p.2