Sheldon Kasman v. Security National Insurance Co./ Monnex Insurance Mgmt. Inc., 2014 ONFSCDRS 160

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2014 ONFSCDRS 160

FSCO A12-007175

BETWEEN:

SHELDON KASMAN

Applicant

and

SECURITY NATIONAL INSURANCE CO./

MONNEX INSURANCE MGMT. INC.

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Arbitrator Jeffrey Rogers

Heard: By Written submissions and oral submissions on August 20, 2014, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Jason Singer, solicitor for Mr. Kasman

Ms. Linda Matthews, solicitor for Security National Insurance Co./ Monnex Insurance Mgmt. Inc.

Issues:

The Applicant, Sheldon Kasman, alleges that he was injured in a motor vehicle accident on July 15, 2010. He applied for statutory accident benefits from Security National Insurance Co./ Monnex Insurance Mgmt. Inc. (“Security National”), payable under the Schedule.¹ Security National refused to pay benefits on the grounds that Mr. Kasman was not injured in an “accident”. The parties were unable to resolve their dispute through mediation, and Mr. Kasman 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:

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

Result:

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

EVIDENCE AND ANALYSIS:

On July 15, 2010 the arm that regulates entry into an underground parking garage struck Mr. Kasman on the head. He was on his way into the garage to retrieve his parked car and he walked under the arm, following a car that triggered the arm to lift. The arm came down because the car Mr. Kasman was following continued into the garage, triggering the sensor that causes the arm to lower. These facts are not in dispute.

What is in dispute is whether Mr. Kasman’s injury was directly caused by the use or operation of an automobile, as required by the definition of “accident” in section 2(1) of the Schedule. For the reasons that follow, I conclude that the use or operation of the car that Mr. Kasman followed into the parking garage set into motion a chain of events that directly led to his injury. He was therefore injured in an “accident” as defined.

The arm that struck Mr. Kasman regulates entry by vehicles into the parking garage. The car or the driver of the car that Mr. Kasman followed into the garage caused the arm to elevate. Sensors in the floor detect the presence of a vehicle. The arm descends when the vehicle entering the garage clears those sensors.

Surveillance footage on the day of the incident shows a car entering the garage at 9:13:08 a.m. Mr. Kasman is not in the image at that time. The arm is up. Two seconds later, at 9:13:10 a.m., Mr. Kasman and a companion are seen following the car on foot. They are in the vicinity of the arm at that time. The arm is still up. Two seconds later, at 9:13:12 a.m., the footage shows the arm striking Mr. Kasman on the head. The car is still in the picture, some distance ahead.

Two questions must be answered in order to satisfy the definition of “accident” in subsection 2(1) Schedule:

Did the incident arise out of the use or operation of an automobile? (the purpose test) and
Did such use or operation of an automobile directly cause the impairment? (the causation test)²

Security National incorrectly describes the test in arguing that this incident fails both prongs. Security National relies on the test as restated in LaFond v. Allstate Insurance Co. of Canada³.

In that case the test is stated as follows:

Was the use or operation of the vehicle a cause of the injuries?
If the use or operation of the vehicle was the cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of “the ordinary course of things”?⁴

This is a rough misstatement of the causation test, with no mention of the purpose test. As a result, although submitting that both prongs are not met, Security National’s submissions focus on causation and do not address the purpose test.

It cannot be argued that the purpose test is not satisfied in this case. The purpose test is applied by determining whether the incident arose out of the ordinary and well-known activities to which automobiles are put. There is no doubt that the car entering the parking garage was engaged in an ordinary and well-known activity to which automobiles are put.

The remaining question is whether the causation test is met. In Chisholm v. Liberty Mutual Group the Court of Appeal described the approach to applying the causation test as follows:

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.⁵

What the Court describes is the “domino effect”. To meet the test the automobile must knock over the first domino and the dominoes must continue to fall, without intervening action, until the injury occurs.

Security National argues the incident in which Mr. Kasman was injured fails the causation test because the lowering of the control arm breaks the chain of events between the use or operation of the car and the injury. Security National relies on jurisprudence that has found that causation is not established when an assault takes place in an automobile.⁶ In my view, the logic of the assault cases does not apply here. Those cases turn on the fact that the automobile is merely the location in which a criminal act takes place.

Security National also relies on several cases where it has been found that an intervening act between the injury and the use or operation of the automobile effectively broke the chain of causation. For instance, in Greenhalgh the plaintiff was found not to have met the causation test when she suffered frostbite after the car she was driving became lodged on a rock. She could not dislodge the car and then it stalled and would not start again. She tried calling for help but the battery on her phone died. She decided to leave the car to seek shelter but got lost in the darkness. She walked through the night for nine or ten hours. Along the way she fell into a river and lost her boots. The frostbite was the result of exposure to the extreme cold during the night. There are numerous events between the use or operation of the plaintiff’s car and the frostbite. That distinguishes Greenhalgh from the present case.

In Mahadan and Co-operators General Insurance Co.⁷ the claimant parked his vehicle, got out and went to the trunk, took out some bags of groceries and closed the trunk. As he turned away from the trunk, he twisted his foot in a groove cut in the pavement during construction in the parking lot. He fell and his arm struck the trunk. It was found that while the claimant’s vehicle led him to the location of his injury, the cause of the trip and fall was a new and independent source, being the groove in the pavement.

Mahadan differs from the present case because here the source of Mr. Kasman’s injury is neither new nor independent of the use or operation of the automobile. Here the arm was part of the sequence of events at all times. It lifted because of the car and it descended because the car triggered it to do so.

In Wong and St. Paul Fire & Marine Insurance Co.⁸ a claimant who slipped and fell on black ice in a parking lot after exiting a bus and taking several steps, was found not to meet the causation test. In reaching that conclusion, the Arbitrator considered the claimant’s separation from the bus in distance and time. The Arbitrator did not set a proximity requirement of two meters, as Security National suggested.

Wong also differs from the present case for reasons similar to Mahadan. In Wong the claimant’s injury is separated from the use or operation of the bus both by the independent act of walking away from the bus and by the new and independent source of danger, being the black ice. As noted above, that was not the case here. In addition, although distance from the automobile is a useful tool in the causation analysis, I would give it little weight in circumstances such as these where the automobile remotely triggers the mechanism of injury.

I find that the entry of the car that Mr. Kasman followed into the parking garage directly caused his injury. I find no act between the use or operation of the car and his injury. I reject Security National’s submission that the lowering of the arm is an independent act because the arm is operated by a mechanism separate from the car. Had the car hit the arm, which in turn hit Mr. Kasman causing injury, there would be no doubt regarding causation. I see no qualitative difference because the arm is remotely triggered.

Although the arm is separate from the car, it was not independent of the car in the circumstances of this case. While it may be true that the arm could be triggered by something other than an automobile and that it could cause injury in those circumstances, that was not the case here. Here, Mr. Kasman has established the direct connection between the lowering of the arm and the car he followed into the garage. I conclude that he was injured as a result of an “accident” as defined in section 2(1) of the Schedule.

EXPENSES:

I reserve the issue of expenses to the hearing arbitrator. If the parties resolve the dispute without a further hearing, but are unable to agree on the issue of expenses, either party may request that I reconvene this hearing to resolve the issue, no later than 30 days after all other issues have been resolved.

October 2, 2014

Jeffrey Rogers

Arbitrator

Date