Ezra Clarke v. TTC Insurance Company Limited, 2014 ONFSCDRS 62

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2014 ONFSCDRS 62

Appeal P13-00012

OFFICE OF THE DIRECTOR OF ARBITRATIONS

EZRA CLARKE Appellant

and

TTC INSURANCE COMPANY LIMITED Respondent

BEFORE: David Evans

REPRESENTATIVES: Murray Tkatch and Kwaku Bona for Mr. Ezra Clarke Karen McGuire for TTC Insurance Company Limited

HEARING DATE: December 9, 2013

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Arbitrator’s order of February 28, 2013 is confirmed and this appeal is dismissed.

2. If the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested pursuant to the Dispute Resolution Practice Code (Fourth Edition, Updated – January 2014), but as set out below and within sixty days of the date of this decision.

April 11, 2014

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Ezra Clarke appeals the preliminary issue decision of Arbitrator Pressman that he was not injured as a result of an “accident,” namely “an incident in which the use or operation of an automobile directly causes an impairment.”¹ Mr. Clarke submits that his fight on a bus was an accident and that the injuries arising from it entitle him to statutory accident benefits.

II. BACKGROUND

Mr. Clarke got into a fight with a fellow passenger on a TTC bus on October 23, 2009. At some point he lost his balance and fell down. The incident was videotaped, which, as the Arbitrator noted, “clearly depicts the incident from several angles. The fall itself is not shown on the video because the crowd of passengers standing in the aisle blocks the camera angle and view of the floor where Mr. Clarke falls down.” Based on the video and Mr. Clarke’s evidence, she described the incident as follows:

On the afternoon of October 23, 2009, Mr. Clarke boarded a crowded TTC bus in the neighbourhood of Keele Street and Wilson Avenue. Unable to find a seat, he was compelled to stand in the aisle. An unknown passenger, in his 50’s, also boarded the bus while carrying 2 grocery bags. He bumped into Mr. Clarke as he was making his way to the rear of the bus. Mr. Clarke, believing this brief physical contact was intentional, instigated an unfriendly verbal exchange.

During the verbal exchange, the other passenger threw his crumbled bus transfer at Mr. Clarke and gestured him with a kiss. Mr. Clarke felt provoked and he pushed the unknown passenger several times escalating the confrontation to a violent fight. At one point, the unknown passenger attempted to walk away from the fight but regrettably, on his way to the front door, he touched Mr. Clarke’s neck. Mr. Clarke then chased him, grabbed him and did not allow him to get off the bus. The fight continued with the two punching each other until Mr. Clarke stumbled backward and fell down… Mr. Clarke claimed that after his fall his toe came into physical contact with the under seat of the bus.

Mr. Clarke alleged that the bus was moving when he fell. He also alleged that the stubbing of his toe when he fell led to the amputation of his lower leg several months later. However, the Arbitrator found

• there was a fight on the bus between Mr. Clarke and another passenger
• the bus was not moving at the time of Mr. Clarke’s fall
• if he was injured it was because of the fight
• whatever injury he suffered was not on account of anything that happened on the bus

The Arbitrator reached this conclusion “because Mr. Clarke’s testimony was inconsistent with the cogent evidence provided by the video surveillance, the police report, TTC’s investigation and the clinical notes and records of his treating practitioners.” She found that the incident did not arise out of the use or operation of the bus because it was the mere location of the fall, and the alleged contact with the interior of the bus was ancillary to Mr. Clarke being knocked down by the other passenger. The Arbitrator further found that the use or operation of the bus did not directly cause Mr. Clarke’s injury because the dominant feature of Mr. Clarke’s claim was the assault, the aspect that most directly caused his alleged injury, and not the use or operation of the bus. She found that an assault on a bus cannot be said to be a normal incident of risk created by the use or operation of a bus. Finally, she found that while Mr. Clarke contended that the assault on the TTC bus caused his impairment, he was not able to establish an evidential link between this incident and the amputation on December 26, 2009. Accordingly, Mr. Clarke was not in an “accident,” as defined.

III. ANALYSIS

Mr. Clarke appeals on both substantive and procedural fairness grounds. I will deal with the substantive grounds first.

Mr. Clarke submits that the Arbitrator failed to apply the two-part test for considering whether the incident was an “accident”:

(i) the use or operation purpose test set out in Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405; and

(ii) the causation test set out in Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (C.A.).

The Amos use or operation purpose test can be expressed as: Did the accident result from the ordinary and well-known activities to which automobiles are put? Mr. Clarke submits that the purpose test was answered by his simply being on the bus, that the Arbitrator conflated the purpose and causation tests, and that “the taint from the analysis of the purpose test carries through to the causation analysis.” I agree that the cases cited by the Arbitrator regarding the purpose test instead deal almost exclusively with the Chisholm causation test. However, I do not agree that any problems in the purpose analysis affect the Arbitrator’s causation analysis. I note that in Greenhalgh, the court concluded that “while the insured in this case could possibly meet the Amos purpose test, she cannot meet the Chisholm causation test”: the same applies here.

Chisholm modified the causation test in Amos due to the specific SABS wording: to be an “accident,” the use or operation of the motor vehicle must directly cause the impairment. The Court of Appeal in Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485, set out the two branches of the Chisholm test as follows:

1. Was the use or operation of the vehicle a cause of the injuries?

2. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?

The court in Greenhalgh then set out three further considerations, namely the “but for,” “dominant feature” and “intervening act” considerations.

The Court in Greenhalgh noted that the “but for” test can act as a useful screen. The Arbitrator did not directly address the “but for” test. However, as stated in Greenhalgh, it “only serves to eliminate from consideration factually irrelevant causes, but does not conclusively establish legal causation.” It is self-evident that this incident passes the “but for” test, since but for being on the bus Mr. Clarke would not have gotten into a fight. It does not, however, establish legal causation.

The Arbitrator addressed the other parts of the causation test as follows:

I find that the use or operation of the bus did not directly cause Mr. Clarke’s injury because the bus was not a dominant feature in this incident. Mr. Clarke’s impairment was caused by a fight, an intervening act which breaks the chain of causation. In addition, Mr. Clarke was unable to link his amputation to the incident on the bus.

As discussed in Greenhalgh, in some cases “it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident.” The dominant purpose test comes into play where the very operation of the vehicle itself is a factor, that is, “a factor is a ‘dominant feature’ where it is the aspect of the situation that most directly caused the injuries.” Of course, in this case, by the time Mr. Clarke fell, the bus was stopped.

Furthermore, the Arbitrator found the use or operation of the vehicle was not a cause of the injuries because the bus “merely provided the opportunity and the location for a fight between Mr. Clarke and the other passenger.” She noted the many Commission cases holding that an assault on a vehicle does not fit within the definition of “accident” where the vehicle played no more than a passive role. She noted that the jurisprudence on assault cases was cited extensively in Kumar and Coachman Insurance Company (FSCO P01-00026, August 9, 2002) and in Lombard General Insurance Company of Canada and Liu, (FSCO P02-00030, January 8, 2004).

I find no error in the Arbitrator’s conclusion on that point.

Regarding the “intervening act” consideration, the Court in Greenhalgh asked: if the use or operation of the vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? The Arbitrator found the fight was not part of the “ordinary course of things”:

In addition, an assault on a bus cannot be said to be within a normal incident of risk created by the use or operation of a bus. In fact, road rage, typical in situations involving two motorists, has not been found to be within the normal incident of the risk created by the use or operation of a vehicle.² Likewise, an overcrowded bus that causes some passengers to become frustrated or aggressive and assault other passengers is not part of the ordinary course of things. The case law on road rage does not lend support to Mr. Clarke’s submissions that bus rage is within a normal incident of the risk created by the use or operation of the bus. In this case, there was no peril or added risk related to the use or operation of the bus.³

I agree with the Arbitrator that a fight between two people is analogous to an assault and that just because passengers may be packed into buses does not mean that close quarters cause fights in the ordinary course of things.

Two recent Court of Appeal cases support the Arbitrator’s conclusion, Downer v. The Personal Insurance Company, 2012 ONCA 302 and Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19. Both were assault cases where the vehicle was found to be merely the location for the assault, subject to limited exceptions. In Downer, the plaintiff was physically assaulted by unidentified assailants while sitting in his car at a gas station. He managed to escape and drive away, but thought he may have run over one of the assailants. The court found that “the assault on the plaintiff as he sat in his car sorting his money cannot fairly be considered as a normal incident of the risk created by the use or operation of the car.” However, the plaintiff's alleged psychological injuries, allegedly caused by his belief that he may have run over one of his assailants while fleeing, may have been caused by an “accident.”

In Martin, the insured was assaulted in a parking lot by two men who attempted to rob him and steal his vehicle. They had trouble driving its manual transmission, so they forced him into the vehicle, assaulted him in it, forced him out of it in another parking lot, and drove over his right foot while driving off. Cronk J.A. said she had “considerable reservations as to whether even the first branch of this modified causation test is met… [T]here is a strong argument that Mr. Martin’s car was nothing more than the venue where many of the assaults occurred. For this reason, I doubt whether the use or operation of his vehicle was ‘a cause’ of Mr. Martin's injuries.” Nonetheless, she preferred to rest the disposition of the appeal on the second, intervening act branch of the Chisholm causation test:

All these senseless acts, except for the injury to Mr. Martin’s foot, had nothing to do with the use or operation of Mr. Martin’s car. These assaults, in my opinion, constituted intervening acts that cannot reasonably be said to be part of the “ordinary course of things” associated with the use or operation of Mr. Martin’s vehicle. In this sense, the use or operation of the vehicle was not, as a matter of law, “a direct cause” of the injuries suffered by Mr. Martin in the second parking lot.

I will now mention the limited exceptions regarding the vehicles as only the venue for the assaults. In Downer, the plaintiff’s claim of psychological injuries was based on his belief that he drove over one of his assailants as he left the scene of the incident. These injuries, therefore, arguably were directly caused by the use or operation of his car, so a trial was required on that issue. Similarly, there was a genuine issue requiring a trial to determine whether the injury to Mr. Martin’s right foot was sustained in an “accident,” in the sense contemplated by s. 2(1) of the 1996 SABS. However, the court in Martin noted that the causation requirement of the definition of “accident” is focused on the specific impairment at issue, so only claims arising out of that impairment could be payable. Furthermore, unlike in Downer, where the alleged psychological injuries were arguably caused by the use or operation of Mr. Downer’s car, the psychological injuries asserted by Mr. Martin allegedly resulted from the overall constellation of assaults that he was forced to endure and not from the specific use or operation of the vehicle.

Accordingly, the Court drew no distinction between Mr. Martin’s physical and psychological injuries. I mention this only because Mr. Clarke submits that the Arbitrator failed to take account of his alleged psychological injuries in determining the issue before her. However, as with Mr. Martin, any psychological injury arose out of the assault and not the use or operation of the bus.

At the appeal hearing, Mr. Clarke essentially conceded the point that the Downer and Martin cases are decisive, and that if we look at those cases, it is difficult to find any error in the Arbitrator’s decision. However, he submits that Downer and Martin are not good law any more as a result of Westmount (City) v. Rossy, 2012 SCC 30. In that case, Mr. Rossy was killed when a tree fell on the vehicle he was driving in the City of Westmount. His relatives filed an action in damages against the City on the basis of civil liability under the Civil Code of Québec. Westmount was ultimately successful in moving to dismiss the action on the basis that the injury resulted from an accident caused by an automobile and, therefore, any compensation for personal injury was governed by the Automobile Insurance Act, R.S.Q., c.A-25. The motions judge found for the city but was overturned by the Quebec Court of Appeal. The further appeal before the Supreme Court turned on the following question: Were Mr. Rossy’s injuries “caused by an automobile, by the use thereof or by the load carried in or on an automobile”? The Supreme Court agreed with the motions judge and found for Westmount.

Mr. Clarke submits that the only difference between the Quebec and Ontario provisions is that the former does not use the word “directly.”

However, that difference is key. Furthermore, the Supreme Court noted that the provisions at issue in Amos were worded differently from the one in Rossy and that while Amos might be of interest from a comparative perspective, it did not resolve the issue of statutory interpretation that the Court had to deal with. Accordingly, I find that Rossy did not change the law in Ontario as set out in Downer and Martin. I find no error of law in the Arbitrator’s conclusion that a fight on a bus, however crowded, is not part of the ordinary course of things.

This is sufficient to dispose of the appeal, except for the procedural issues mentioned above.

The first relates to the Arbitrator’s finding that “Mr. Clarke was unable to link his amputation to the incident on the bus.” After reviewing the evidence, she found it “not unreasonable to assume that the cause of Mr. Clarke’s unfortunate amputation related to his diabetes” and that she could not “find that the bus played any significant or contributing role in Mr. Clarke’s impairment.”

Mr. Clarke submits that the TTC in its closing arguments “made unfounded allegations about, among other things, the medical evidence that appears to have swayed Arbitrator Pressman in her decision.” However, the Arbitrator set out the evidence she relied on, including that “none of the reports authored by the police, the TTC, or the medical practitioners that attended to Mr. Clarke at the scene or shortly after make any mention of an injury to the toe or contact with the under seat,” that “two doctors that physically examined Mr. Clarke’s feet just days after the bus incident do not note any issues related to his toe and do not mention the assault on the bus,” and that another doctor noted “a history of diabetic foot ulcers.” I do not find that the Arbitrator made findings of fact in the absence of evidence.

Mr. Clarke provided an affidavit for the appeal hearing, in which he asserts he was denied the right to reply to the TTC’s closing argument. Whatever the merits of this argument, it makes no difference, considering that the Arbitrator had already found that there was no accident even before she dealt with the medical evidence. As was stated in FL Receivables Trust 2002-A v. Cobrand Foods Ltd. 2007 ONCA 425, “Not every error by a trial judge entitles an aggrieved party to a new trial.” Mr. Clarke was able to present his case over two days, and I am not persuaded that if he had been given an opportunity to make further arguments, the result would have been any different.

Mr. Clarke submits that he was denied the right to have a court reporter at the hearing. He asserts in his affidavit that, although Arbitrator Pressman did not mention it in the pre-hearing letter, the TTC had advised it would be providing a court reporter at the preliminary issue hearing. Mr. Clarke submits that it was only a few minutes before the hearing that he learned the TTC would not be doing so because it had the surveillance evidence. Accordingly, he requested an adjournment of the hearing so that he could have a hearing with a court reporter present. However, as R. 74.1 of the Dispute Resolution Practice Code states, “Parties who want a record of the proceedings must make their own arrangements for the attendance of a reporting service, and must pay for this service.” Furthermore, pursuant to R. 74.2(a), the party doing so must “inform the other parties and the adjudicator,” and there is no record of the TTC having done that. The lack of a court reporter is not one of the grounds for granting an adjournment pursuant to Practice Note 9. Furthermore, the attendance of a court reporter at the Commission is optional, as “The expense of a court reporter is entirely unnecessary to the effective presentation of an arbitration.”⁴ Finally, as the hearing lasted a couple of days, Mr. Clarke had time to call his own court reporter if he so wished. I do not find this argument persuasive and, again, I find the lack of a court reporter made no difference.

Finally, Mr. Clarke submits that the TTC as the moving party had the onus of proof, so the Arbitrator erred in law when she required Mr. Clarke to first present his case and prove that he was in an accident. However, the onus of proof was always on Mr. Clarke to prove he was in an accident. All that the preliminary issue hearing did was move the issue up before the hearing on the merits, in order to avoid additional expense. It is no different than a preliminary issue hearing on whether or not an insured suffered a catastrophic impairment: even if an insurer asks for a preliminary issue hearing on that point, it is not thereby required to prove that the insured did not suffer a catastrophic impairment. The same principle applies here. Again, I find no error in law in the Arbitrator’s having required Mr. Clarke to present his case the same way as at a main hearing.

Accordingly, I find there was no error in law. The Arbitrator’s order of February 28, 2013 is confirmed, and this appeal is dismissed.

IV. EXPENSES

If the parties are unable to agree on the legal expenses of this appeal, applying the procedure set out in Rule 79.2 of the Dispute Resolution Practice Code, an expense hearing shall be requested, within sixty days of the date of this decision. The request shall be accompanied by a Bill of Costs describing the expenses claimed, the services received and the costs, as well as written submissions regarding entitlement to and/or the quantum of legal expenses, as are in dispute.

April 11, 2014

David Evans Director’s Delegate

Date

Footnotes

1. 1As defined in s. 2(1) of the SABS-1996, The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2The suggestion that road rage should be viewed as a normal incident of use or operation of a vehicle was soundly rejected in Lafond, supra at 10, Conners v. Kingsway General Insurance Company [2005] O.J. No. 4294 (Ont. S.C.J.), Greenhalgh, supra, at 4, Chisholm, supra at 9, Brar, supra at 9, Kamel and TD General Insurance Company (FSCO A06-002469, November 23, 2007) [Footnote in the original.]
3. 3Lombard General Insurance Company of Canada and Webb (FSCO P06-00038, October 5, 2007), Appeal and Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003), Appeal [Footnote in the original.]
4. 4Mazumder and Security National Insurance Co./Monnex Insurance Mgmt. Inc., (FSCO A05-001642, December 5, 2007)