Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2015 ONFSCDRS 172
Appeal P14-00025
OFFICE OF THE DIRECTOR OF ARBITRATIONS
PRIMMUM INSURANCE CO.
Appellant
and
AMJID ALI SHAH
Respondent
BEFORE:
David Evans
REPRESENTATIVES:
Kevin Griffiths for Primmum Insurance Co.
Samia Alam for Mr. Amjid Ali Shah
HEARING DATE:
February 11, 2015
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
The appeal of the Arbitrator’s order dated June 24, 2014 is allowed. Paragraph 1 of the Arbitrator’s order is revoked, and the following substituted:
- Mr. Shah was not injured in an accident within the meaning of s. 2(1) of The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996.
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 45 days of the date of this decision.
August 26, 2015
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
On July 22, 2009, Mr. Amjid Ali Shah fell and injured himself while running down the stairs in his house to get to where his son Omar lay in the street. Mr. Shah had just been awoken by his eldest son, who, after seeing his brother struck by a car in front of the family home, had alerted his sleeping father.
Mr. Shah claimed accident benefits from Primmum under the SABS–19961 on the basis that he suffered impairments in the fall and that these were as a result of an accident.
While insured persons who are not involved in an accident may receive benefits for psychological or mental injury resulting from physical injury to a child in an accident, benefits for physical injury or mental impairments arising from physical injury are only payable to insureds involved in an accident themselves. Primmum appeals Arbitrator Kelly’s order that Mr. Shah was involved in an accident when he fell on the stairs.
II. BACKGROUND
The SABS in s. 2(1) defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment,” meaning “a loss or abnormality of a psychological, physiological or anatomical structure or function.” The definition of “insured person” in turn required that Mr. Shah had to have been involved in an accident to claim benefits for physical and mental impairments arising from the fall.
The definition of “accident” contains two tests, the first being that there has to be a use or operation of an automobile, known as the “purpose” test, and the second being that the use or operation directly caused an impairment, known as the “causation” test.
Primmum relied on Hanlon and Guarantee Company of North America, (OIC A‑011977, October 30, 1995), upheld (OIC P95-00003, March 18, 1997), for the proposition that the incident failed the purpose test to be an accident, as at the time Mr. Shah fell the vehicle was no longer in use or operation. The Arbitrator rejected that proposition, finding that Hanlon was really focused on causation and not the purpose test. Rather, he found the issue is whether or not the purpose test was met at the beginning of the chain of causation, so the purpose test would be met by proving causation:
If I find that the striking of Omar Shah by the motor vehicle was the first link in an unbroken (i.e. not broken by an intervening act) chain of connected events leading directly to Mr. Shah’s fall on the stairs, then not only has Mr. Shah’s claim passed the causation test, but also it has passed the purpose test, because the first link in the chain was the operation of the vehicle in the ordinary and well-known activity to which automobiles are put.
The Arbitrator then reviewed the applicable case law, in particular Grewal and Dominion of Canada General Insurance Company, (FSCO A03–000750, December 2, 2003). This was the case where the insured felt his house being struck by a car, and he fell and injured himself rushing to see whether his children were injured. Arbitrator Blackman in that case concluded that causation was established. Arbitrator Kelly found that Mr. Shah was in essentially the same situation as Mr. Grewal. Ultimately, he concluded that causation had been established:
In the Shah case, the use of the motor vehicle set in motion a chain of connected events beginning with the striking of Omar, followed by the witnessing of the accident by the eldest son, leading to his run to his father’s bedroom, leading to Mr. Shah’s immediate panicked response, leading to Mr. Shah’s fall on the stairs. This sequence of events was a natural and reasonable consequence to the use or operation of the motor vehicle.
III. ANALYSIS
As described above, the purpose and causation tests arise out of the term “accident,” defined in s. 2(1) of the SABS as meaning “an incident in which the use or operation of an automobile directly causes an impairment.” The use-or-operation purpose test set out in Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 SCR 405, requires that the incident result from the “ordinary and well-known activities to which automobiles are put.” The causation test set out in Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 OR (3d) 776 (CA), requires that the use or operation must in turn directly cause the impairment, meaning that the incident was “part of the ordinary course of things.”
Primmum submits that the Arbitrator paid too little attention to the purpose test. However, as Delegate Blackman stated in Wawanesa Mutual Insurance Company and Webb, (FSCO P11‑00015, July 18, 2012), “the case law is clear that even under the present definition of ‘accident,’ the use or operation of a motor vehicle does not automatically end when one leaves a car.” Furthermore, unlike in Hanlon or in Webb, the use or operation of the vehicle had definitely caused an injury before the use or operation stopped, albeit the injury was to Mr. Shah’s son.
Accordingly, I prefer to focus on the causation test. The Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 OR (3d) 338 set out the three guiding tests regarding causation: “but for,” intervening act, and dominant feature.
First, the Court in Greenhalgh noted that the “but for” test can act as a useful screen, although it is not sufficient in itself. Primmum agrees that this case satisfies the “but for” test.
Second, the Court 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”? Third, the Court noted that in some cases “it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident.”
I will focus on the second test, as I find it determinative. In discussing intervening acts, the Arbitrator drew the closest analogy to the Grewal case, finding that “The fact that Mr. Grewal heard the impact himself, whereas Mr. Shah only learned of the accident less than a minute after it occurred is a distinction without a difference.” However, I find the Arbitrator erred in failing to draw this crucial distinction.
Mr. Shah did not see or hear or feel the impact. He knew nothing of the accident until he heard about it from his son. I find that this fact alone makes the causal connection indirect, as Mr. Shah had no direct knowledge of the incident, but rather that knowledge was mediated through his son.
As noted by Primmum, “The result might well be different if, for example, it had been the brother making the claim (say) because he tripped and fell, after observing the accident happen, and while rushing to his brother’s side.” However, that direct causation is missing in the case of Mr. Shah.
Therefore, Mr. Shah was not injured in an “accident” as defined in the SABS.
The appeal is accordingly allowed.
IV. EXPENSES
If the parties are unable to agree on the legal expenses of this appeal, an expense hearing shall be requested within forty-five days 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 or the quantum of these expenses, or both, as are in dispute.
August 26, 2015
David Evans Director’s Delegate
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.