Financial Services Commission of Ontario

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

Neutral Citation: 2015 ONFSCDRS 201

FSCO A12-007526

BETWEEN:

SHEILA MCALPINE

Applicant

and

NORTHBRIDGE PERSONAL INSURANCE CORPORATION

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Jessica Kowalski

Heard: July 15 and 16 and November 4 and 5, 2014 and January 26, 2015, in Lindsay, Oshawa, and Toronto, respectively.

Appearances: Ian W.F. Furlong for Ms. McAlpine Kadey B.J. Schultz for Northbridge Insurance Services

The Applicant, Sheila McAlpine, was injured in an incident on March 31, 2012 while horseback riding. She applied for accident benefits from Northbridge Insurance Company (“Northbridge”), under the Schedule.¹ Although Northbridge paid her benefits on a without prejudice basis, they have disputed that she was involved in an “accident” as defined in the Schedule. The parties were unable to resolve this issue through mediation, and Ms. McAlpine applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issue

1. Was Ms. McAlpine injured as a result of an “accident” as defined in section 3(1) of the Schedule?

Result

1. Ms. McAlpine was injured as a result of an “accident” as defined in section 3(1) of the Schedule.

Ms. McAlpine fell from and was trampled by her horse as the horse tried to extricate himself from mud in a shallow ditch at the side of a concession road in rural Ontario.

The issue in this hearing is whether an oncoming all-terrain vehicle (“ATV”) operated by Jordan Musclow that passed Ms. McAlpine within seconds before her fall was a direct cause of her fall from her horse and of her resulting injuries.²

For the reasons that follow, I find that the use and operation of the ATV was a direct cause of Ms. McAlpine’s fall from and trampling by her horse and that her impairments resulted from an accident within the meaning of the Schedule.

Background

On March 31, 2012, Ms. McAlpine and her sister, Brenda Prentice, set out on horseback from the Prentice farm near Maynooth, Ontario. They left the farm and made their way to McAlpine Road, a municipal concession road.

The narrow hard top road runs north/south, with one lane in each direction. On either side of the road there is a narrow gravelled shoulder, which is then abutted by a shallow ditch.³

There was a warm spell in March 2012 and there is no dispute that, on the day of the incident, the mud in the ditch was thick and tacky. Ms. Prentice called it “loon muck”. She described it as the kind of mud that, “if you were wearing rubber boots, it would suck them off you.”

Ms. McAlpine and Ms. Prentice were riding on the east side of McAlpine Road, travelling northbound. The ditch was to their immediate right.

Ms. McAlpine was riding Indigo⁴, a seven year old gelding she had purchased in February 2012. Ms. Prentice was on her usual horse, Rebel. Ms. Prentice and Rebel were in the lead, with Ms. McAlpine and Indigo behind them and slightly to the right and, therefore, closer to the ditch.

Around the same time that the horses and their riders were travelling northbound on the east side of McAlpine Road, Mr. Musclow was driving his ATV southbound, on the opposite (west) side of the road, travelling toward the horses. His then-girlfriend, Sarah Nichols, was seated directly behind him on the ATV. The ATV was a racing ATV, faster, smaller and – arguably – louder than a conventional four-wheel ATV.

Within seconds of the ATV passing the horses, Ms. McAlpine would fall from her horse and be trampled as her horse tried to extricate himself from the muddy ditch. In what can best be described as a desperate struggle to regain solid footing and get out of the sticky mud, Indigo would kick Ms. McAlpine’s head and trample her back, before breaking free and running back home.

Insurer’s Position

Northbridge submits that Ms. McAlpine’s impairments were caused by an assault by her horse, not an accident as defined by the Schedule. Northbridge says that Ms. McAlpine’s horse did not panic until he was in the mud, and that it is therefore the mud, the dominant feature of the accident, that caused the trampling and injury.

Northbridge also submits that the presence of the ATV with its clutch disengaged is too remote to be called a direct cause and that, if the ATV did start a chain of causation, that chain was broken by one or more intervening events such as a collision between the two horses, the mud in the ditch, the warm weather that spring, the “assault” by the horse, and Ms. McAlpine’s inexperience with the horse she was riding.

Applicant’s Position

Ms. McAlpine submits that use or operation of the ATV directly caused her impairments and that the entire sequence of events was one incident. She submits that the ATV spooked the horses, the horses immediately reacted to the sound of the ATV, and that she fell from her horse within seconds of the ATV passing them.

EVIDENCE

The Witnesses

The only (human) witnesses to the actual incident were Ms. McAlpine, Ms. Prentice, Mr. Musclow and Ms. Nichols. Because of her head injury, Ms. McAlpine has no memory of the incident itself. She testified that she recalled hearing what she thought may have been dirt bikes coming toward them, but does not remember anything after that, so that only Ms. Prentice, Mr. Musclow and Ms. Nichols testified as to what happened from the time that the ATV approached and passed the horses, and the seconds that followed.⁵

Brenda Prentice

Ms. Prentice testified that she was riding in the lead, with Ms. McAlpine on Indigo behind and just to the right. She testified that they had passed three other vehicles before the ATV, one of which was pulling a rickety trailer, without incident. According to Ms. Prentice, the last vehicle passed some five to seven minutes before Mr. Musclow’s ATV.

Ms. Prentice says she heard Mr. Musclow’s ATV before she saw it crest over a hill in the distance, moving quickly toward them.

When Ms. Prentice saw the ATV, she says she alerted Ms. McAlpine behind her. Ms. Prentice testified that the ATV came down the hill fast and loud. She testified that Mr. Musclow’s ATV was modified with a so-called header off the exhaust, making it louder and throatier sounding than a conventional ATV. Ms. Prentice says that Mr. Musclow stood up on his ATV and, when he was about 25 feet ahead, pulled the clutch in to quiet the vehicle and slow down. As the ATV passed, it was approximately six to eight feet across the road from the horses.

Ms. Prentice says that Mr. Musclow had just passed her when the muffler came up loud and the ATV’s tires spun up gravel and dust. She says that as it passed, the ATV spooked Indigo, whom she then felt bump Rebel’s rump. She turned Rebel to the east, right, down toward the shallow ditch. Indigo also turned. As Ms. Prentice turned Rebel, she saw Indigo struggling in the mud and Ms. McAlpine in the throes of being thrown off before she fell and was trampled in what Ms. Prentice says took seconds but felt like slow motion.

Jordan Musclow

Mr. Musclow was driving his Honda TRX 450R along the shoulder of the road when he saw the horses ahead in the distance. His ATV is built for racing and is smaller and faster than conventional ATVs.⁶ He testified that he was driving below the 50kph speed limit, although his ATV did not have a speedometer. Ms. Nichols was sitting on the back of the ATV.

Mr. Musclow did not have experience with passing horses on the road. He had never before passed a horse on a road while on his ATV, and only once before on a trail. Although this was the first time he had encountered a horse on a road while on his ATV, his father had taught him over the years to be quiet around horses, and so he knew to pull his clutch in to quiet the sound of the ATV when approaching horses to avoid startling the animals.

Mr. Musclow testified that, as he approached the horses, he saw them trotting along with Ms. Prentice slightly ahead of Ms. McAlpine. When he was about 15-20 seconds away, he testified that he pulled in his clutch and downshifted once to reduce the speed and sound of the ATV. He did not turn off the ATV or pull over farther to his right to let the horses pass. He testified that he quietly and slowly rolled by the horses (at 15-20kph) and that he was riding as close to the shoulder on his side of the road as he could.⁷ He testified that the only noise from the ATV as it passed the horses would have been the sound of the tires rolling on the gravel. He testified that there was already trouble when he turned back over his shoulder to look, and that he was 100-150 yards past the horses before he turned back, saw that the horses were disturbed, and put his clutch back in to drive back to help.

Sarah Nichols

Ms. Nichols was on the back of the ATV. She testified that she was concerned when she saw the horses ahead. As the ATV approached, she communicated her concern to Mr. Musclow by squeezing him because they were both wearing helmets and Mr. Musclow would not have heard a verbal warning.

According to Ms. Nichols, Mr. Musclow pulled in the clutch to quiet the ATV. Although not good with estimating speed, Ms. Nichols testified that as it passed the horses, the ATV was coasting along at approximately 5kph with the tires slowly rolling past to avoid spooking the horses. After about four to six car lengths after the ATV passed them, Ms. Nichols says she looked back to check that the horses had not been disturbed. When she looked back, she says she saw that Ms. Prentice’s horse Rebel had spooked and was turned in the opposite direction (now facing toward the ATV). Specifically, Ms. Nichols says it was Rebel she saw spook and abruptly turn backwards. When Rebel spooked, Indigo attempted to turn at the same time, causing Rebel to knock into Indigo, in turn causing Indigo (with Ms. McAlpine still on top) to move into the ditch.

Ms. Nichols testified that the ATV was four to six car lengths past the horses when she and Mr. Musclow looked back over their shoulders.

Ms. Nichols also testified that, because of the limited space, Indigo had nowhere to go but into the muddy ditch.

She testified that she believes the ATV did not spook the horses because a car had passed the horses earlier and they were fine.

ANALYSIS and CONCLUSIONS

The Law

Legal entitlement to accident benefits requires not just that the use or operation of an automobile be a cause of a person’s injuries, but that it be a direct cause.⁸ In subsection 3(1) of the Schedule:

“accident” means an incident in which the use of operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.⁹

Direct cause has been defined as 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.”¹⁰ What amounts to a direct cause will turn on the facts and circumstances of each case.¹¹

The Court of Appeal considered this stricter definition of “accident” requiring direct causation in the 2002 decision of Chisholm v. Liberty Mutual Group¹² and again, two years later, in the case of Greenhalgh v. ING Halifax.¹³

In Chisholm, the insured was operating his car when an unknown assailant fired gunshots at him.¹⁴ The Court of Appeal set forth a two-part causation test to determine whether there is a direct relationship between the use or operation of an automobile and an impairment:

1. The purpose test: Did the incident arise out the use or operation of an automobile? and,

2. The causation test: Did such use or operation of an automobile directly cause the impairment?

In Greenhalgh v ING¹⁵, the Court of Appeal gave further direction on the application of the Chisholm test. The Court affirmed that the purpose test set out in Amos still applied.¹⁶ Among the relevant considerations, the Court concluded that:

• there can be more than one direct cause of injury

• an intervening act will not necessarily absolve an insurer of liability if that intervening act can fairly be considered a normal incident of the risk created by the use or operation of a vehicle

• an intervening act outside of the normal incident of the risk created by the use and operation of the vehicle will break the chain of causation.

In applying the Chisholm test to the facts in Greenhalgh¹⁷, the Court restated the causation test in the following two questions:

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

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?

With its refinements in Greenhalgh, the Court of Appeal’s test in Chisholm provides the framework for analyzing the question of causation.

The courts have also considered the following factors:

i. the “but for" test. The fact that an injury would not have occurred but for the use or operation of a vehicle, while it does not end an inquiry, allows a decision maker to consider the intervening cause and dominant feature tests.

ii. the “intervening cause” test. The intervening cause test can be likened to a series of dominos falling. Did the fall of the first domino create a perfect chain of causation, or was there an intervening cause that broke the chain and resulted in the injuries?

iii. the “dominant feature” test, which asks whether the use or operation of the motor vehicle is the dominant feature of the incident or not.

Finally, the factors considered by Director’s Delegate Makepeace in the appeal decision of Seale and Belair Insurance Company Inc.¹⁸ and in which she applied the Chisholm two-part causation test also provide guidance on direct causation. From her analysis, I find the following principles relevant to this case:

• the relationship between the use or operation of the vehicle and the impairment must involve the vehicle in more than an incidental or fortuitous way and provide more than the location, or situs, of the accident

• it may be appropriate to consider whether the injury was a normal risk associated with motoring

• physical contact with an automobile is not required

• factors of time, proximity, activity and risk are important in defining the incident that resulted in the injury.¹⁹

Analysis:

When applied to the facts of this case, I find that the two-part Chisholm test can be answered in the affirmative and that, on balance, this was an accident as defined by the Schedule in which the ATV directly caused Ms. McAlpine’s impairments.

On all of the evidence before me, I find that the ATV was the active, efficient cause that set into motion a chain of events which brought about Ms. McAlpine’s injuries without the intervention of any force started and working actively from a new and independent source, and that the involvement of the ATV was not merely fortuitous or incidental.²⁰

In terms of time, the witnesses agree that the entire incident, from the time that the ATV passed the horses until the time that Ms. McAlpine lay injured in the ditch took a matter of seconds. Ms. Nichols testified that the entire incident took only a “couple of seconds.” Mr. Musclow’s own testimony supports a single, unbroken chain of causation, beginning with the ATV that was over in a “couple of seconds”.

In chief, Mr. Musclow testified as follows:

Q: Did you see the horse do anything?

A: When we went past, the front one got spooked.

And on cross examination:

Q: Would you agree with me that when you passed Brenda’s and Sheila’s horse, Brenda’s horse got spooked?

A: Yes.

Q: Would you agree with me that when Brenda’s horse got spooked it knocked into Sheila’s horse?

A: Yes.

Q: Would you agree with me that when Brenda’s horse knocked into Sheila – knocked in Sheila’s horse, that horse spooked?

A: Okay, can you read that again?

Q: Would you agree with me when Brenda’s horse knocked into Sheila’s horse that horse got spooked?

A: Yes.

Q: Would you agree with me, that as a result, Sheila’s horse went into the ditch?

A: Yes.

Q: Would you agree with me that the next – that next Sheila fell off the horse?

A: Yes.

Q: Would you agree with me that all that happened in a couple of seconds?

A: Yes.

And later:

Q: And you’d agree with me that Brenda’s horse was spooked by the ATV?

A: Yes.

Even if the ATV spooked the horses, Northbridge argues that intervening factors broke the chain of causation.

I will first deal with the issue of the noise and proximity of the ATV to the horses before considering intervening factors.

With respect to noise, Mr. Musclow and Ms. Nichols deny that the ATV made a loud noise around the horses. They testified that the only noise of the ATV coasting past the horses would have been the sound of its tires on gravel.

I find that this evidence is unreliable. Their ability to hear was impaired by their helmets. Ms. Nichols testified that she squeezed Mr. Musclow to signal the oncoming horses because she was concerned and knew that horses could be spooked. Mr. Musclow squeezed her hands back with his arms to acknowledge that he was aware of the horses. She says she gave no verbal warning because, “No, you can’t hear each other when you have helmets on.”

Even though they may have honestly reported what they heard, I find that Ms. Nichols and Mr. Musclow were not able to judge or report the noise generated by the ATV at the moment it passed the horses because of their helmets. Their helmets left them unable to hear one another sitting very close to each other and I find that they were therefore not in a position to testify reliably about the noise. The ATV was still running (i.e. Mr. Musclow did not turn it off) and Ms. Prentice testified that the trees along the road created a tunnel effect that amplified noise. Because of the barrier created by the helmets I give no weight to their evidence that the ATV was essentially stealth but for the sound of tires rolling on gravel.

In terms of distance, or proximity, there is no dispute that the ATV was between six and eight feet across the road when it passed the horses. The case law is clear that physical contact is not required for there to be an accident.

On the question of how far the ATV travelled before the horses were disturbed, I also find Mr. Musclow and Ms. Nichols’ evidence to be unreliable. Their evidence is inconsistent and Mr. Musclow’s is also contradictory.

Both of them looked back out of concern once they passed the horses to check that the horses had not been spooked. Ms. Nichols said that the ATV had rolled passed the horses by four to six car lengths when she looked over her shoulder and saw that there was trouble. Mr. Musclow testified that it was approximately 100-150 yards that he looked over his shoulder and saw that the horses were disturbed.²¹

Considering that the incident took no more than a couple of seconds, Mr. Musclow’s testimony that he saw the horses spook as he passed, and given the ATV’s low rate of speed, I find it improbable that the ATV coasted along for 100-150 yards before Mr. Musclow looked over his shoulder and observed that the horses were disturbed and likely not as far as Ms. Nichols says if it was simply rolling or coasting. If the ATV had travelled as far as Mr. Musclow says before he looked back and saw Rebel bump Indigo, I question how he could see with such detail which horse did what from 100-150 yards away while his ATV was moving forward and he was looking back or why, if both Mr. Musclow and Ms. Nichols were concerned about passing the horses, they would travel so far before first looking over their shoulders.

There are also inconsistencies within Mr. Musclow’s evidence. The witnesses signed statements prepared after the accident by an investigator hired by Ms. McAlpine’s counsel. Although they each testified that they were satisfied with the final, signed statements, they took issue with the investigator, who they testified tried to “put words in their mouths” in preparing the drafts. I have given no weight to the draft statements except to the extent that Mr. Musclow endorsed a portion of an unsigned draft of his statement during his testimony and which is consistent with his testimony.

Specifically, an unsigned draft of Mr. Musclow’s statement contained the following sentences: “As I passed, out of the corner of my eye I could almost see that it looked like they were trying to turn around, so I looked behind me and that’s when I saw everything happen. It looked like one horse hit the other horse and that’s when it all started.” Although omitted from his signed statement, during his re-direct examination, Mr. Musclow testified that this was not wrong. It is also consistent with his earlier testimony (noted above) that, as he passed, he saw the front horse (Rebel) spook.

In other words, while Mr. Musclow testified that he was 100-150 yards away before he looked back over his shoulder and saw that the horses were disturbed, he also testified that he could see trouble from the corner of his eye as he passed the horses. His evidence about travelling 100-150 yards before looking back, pulling in his clutch and returning to help is inconsistent with his evidence that he saw the horses spook as he passed.

While not necessarily deliberate, the inconsistencies between Mr. Musclow and Ms. Nichols’ evidence leave questions in my mind regarding the accuracy of their accounts of the distance they travelled past the horses before they looked over their shoulders to see that the horses had spooked.

Because of the inconsistencies between the two of them and the inconsistency within Mr. Musclow’s own evidence, I prefer the evidence of Ms. Prentice regarding the ATV’s proximity to the horses when the horses spooked.

Ms. Prentice testified that Mr. Musclow had just passed them when he let the clutch back in, causing more noise and stirring up dust and gravel, at which point Indigo spooked and knocked Rebel’s rump. This is consistent with Mr. Musclow’s testimony that as he passed the horses he saw Rebel spook. I find that Mr. Musclow and Ms. Nichols’ testimony that when they looked over their shoulders, they saw the front horse (Rebel) spook is in line with Ms. Prentice’s evidence that it was actually Indigo who reacted first and knocked into Rebel’s rump. Given the mere seconds involved, it is highly probable that by the time both Mr. Musclow and Ms. Nichols looked over their shoulders, what they saw was a chain that was set in motion as they passed; they would not have seen Indigo bump Rebel, but turned in time to see Rebel turning around and knocking back into Indigo. I also find that Ms. Prentice’s evidence makes sense that, as an experienced lifelong rider she had an intuitive relationship with her horse, and that she could feel one horse bumping into the other and sense the horses as they moved in relation to each other.

A spooked horse and a muddy ditch

Northbridge argues that the mud broke the chain because the mud caused Indigo to panic which directly caused Ms. McAlpine’s fall. Put differently, but for the mud, Indigo would not have been stuck, would not have panicked and would not have thrown and trampled Ms. McAlpine.

Although it can be speculated that that Ms. McAlpine would not have been hurt but for the mud, I find that the mud was a normal risk associated with motoring along a narrow concession road in the spring. Even Ms. Nichols testified that there was little room to manoeuvre and, with nowhere else to go, Indigo went into the muddy ditch. Further, just as roads can become icy in winter, in spring there is thaw and a narrow country roadside can become muddy. Even if the mud and the trampling were also a direct cause of Ms. McAlpine’s injuries, the ATV need not be the only cause.

I also find that spooking or frightening a horse on a narrow road is an ordinary risk associated with travel on a road in a rural area used by horses and that a spooked horse is not too incidental or remote a consequence of a passing ATV. Both Ms. Nichols and Mr. Musclow testified that they were aware of the risks associated with passing horses on the road. Mr. Musclow’s father taught him a protocol regarding passing horses: to be careful around horses, to be quiet, to pull as far to the side as possible and to let them pass. He and Ms. Nichols knew it was a risk and each had sufficient concern to look back once they passed the horses to check whether the horses had spooked. Indeed, they had.

The risk is sufficiently ordinary that it has required legislation to protect against. Section 167 of the Highway Traffic Act contemplates that a horse can be frightened and has put the onus on motorists to exercise caution when passing horses on a road. Specifically, section 167 states:

Approaching ridden or driven horses, etc.

Every person having the control or charge of a motor vehicle or motor assisted bicycle on a highway, when approaching a horse or other animal that is drawing a vehicle or being driven, led or ridden, shall operate, manage and control the motor vehicle or motor assisted bicycle so as to exercise every reasonable precaution to prevent the frightening of the horse or other animal and to ensure the safety and protection of any person driving, leading or riding upon the horse or other animal or being in any vehicle drawn by the horse or other animal.²²

It follows that a rider of a frightened horse is not safe and can fall and sustain injury.

No assault

Finally, Northbridge argues that the use or operation of the ATV did not directly cause Ms. McAlpine’s injury because the dominant feature of the accident was an assault by her horse. Northbridge submits that the facts in this matter are on point with the Court of Appeal decisions in Downer v. The Personal Insurance Company²³ and Martin v. 2064324 Ontario Inc. (Freeze Night Club)²⁴ and argues that the assault by the horse was the direct cause of the trampling.²⁵

I reject the insurer’s submission that the accident was caused by an assault by the horse. An assault involves an intentional use of force or infliction of harm. Black’s Law Dictionary defines assault, in part, as follows:

Any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability to do so, and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm, constitutes assault.

I am not remotely persuaded that there was a willful attempt by one horse to inflict harm on the other, or on Ms. McAlpine. By the accounts of those that know him, Indigo is not an anxious horse but a slow and gentle one. Even Mr. Musclow testified that Indigo stepped on Ms. McAlpine’s back because he was struggling to get out of the mud. Ignoring for a moment the lack of any evidence that a horse could be capable of an assault as that term is defined, all of the evidence is that Indigo was “spooked”, “scared” or “flustered” and that his response was nothing more than a fearful panicked attempt to extricate himself from the mud without any willful attempt to inflict harm or injury on his rider.

The horse’s reaction to the ATV and to the mud was not an assault but part of the ordinary risk associated with the ATV’s passing the horses and their riders on the road. I find that the horses’ actions were a foreseeable response to having been frightened by the ATV and the panic and struggle of getting stuck in the mud were caused by having been spooked, and not an assault or attack on Ms. McAlpine.

Conclusion

For the above reasons, I find that the ATV was the active, efficient cause that set into motion a single, unbroken chain of events that left Ms. McAlpine injured within seconds of its passing.

I find that the horses getting spooked, bumping into each other, Indigo moving into the ditch, getting stuck in the mud, throwing Ms. McAlpine and trampling her as he struggled to get out of the mud were not active forces started and working efficiently from a new and independent source, but reactions that flowed from the passing of the ATV when it spooked the horses, and which were part of the ordinary course of things.

Even if the mud could be said to be a cause of the injury, a direct cause need not be the only cause. A subsequent cause, such as the horses knocking into each other, or the mud, may not break a chain of causation if it is part of the ordinary course of things. Ditches are muddy in spring, and horses can be spooked by ATVs. Unlike in the assault cases, the horse being spooked by the ATV and ending up in the mud alongside a narrow roadway was part of the ordinary course of things and a foreseeable risk that requires legislation to protect against.

On all of the evidence before me, I find that the use and operation of the ATV was a dominant feature of the incident and that the horse’s panic in the mud did not break the chain of causation because they were normal, ordinary risks associated with the use and operation of the ATV. Mr. Musclow’s own evidence was that the horses were spooked by the ATV and I find that everything in the immediate seconds that followed was part of an unbroken chain of events set in motion by the ATV. I find that the ATV was a direct cause of Ms. McAlpine’s impairments and that she has met her burden of proving that she was involved in an accident as defined by the Schedule.

EXPENSES

The parties made no submissions on expenses. If they are unable to resolve the issue of expenses, they may bring the issue before me in accordance with Rule 79 of the Dispute Resolution Practice Code.

October 2, 2015

Jessica Kowalski Arbitrator

Date

Financial Services Commission of Ontario

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

Neutral Citation: 2015 ONFSCDRS 201

FSCO A12-007526

BETWEEN:

SHEILA MCALPINE

Applicant

and

ZENITH INSURANCE SERVICES

Insurer

ARBITRATION ORDER

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

1. Ms. McAlpine was injured as a result of an “accident” as defined in section 3(1) of the Schedule.

October 2, 2015

Jessica Kowalski Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
2. 2Ms. McAlpine’s impairments are not the subject of this preliminary issue hearing. In summary, she was diagnosed in the ER with a closed right distal radius fracture, thoracic spine compression fracture and was examined for a head injury; she is able to walk, still has her horse, which she boards at a friend’s farm and wants to ride again.
3. 3There is no dispute that the ditch is shallow or that the mud was sticky. According to Ms. Prentice, the ditch has no significant drop or elevation and is only about four to six inches lower than the road. Photographs of the area taken by Sarah Nichols show the ditch to be a shallow depression alongside the shoulder. Throughout this decision, I refer to that area as a ditch, in keeping with the language used by the parties.
4. 4For simplicity, I refer to the horse as Indigo, which is his barn name and the name used by Ms. McAlpine. His registered name with the American Quarter Horse Association is Holme Kookin’.
5. 5Some 800 yards behind Jordan Musclow were his parents, Robert and Michelle Musclow, following on another ATV operated by Jordan’s father. They were far enough behind Jordan that they did not see what happened in the incident at issue here. Mr. Robert Musclow did testify, but his evidence was limited to what he saw in the aftermath, to the nature of his son’s ATV, and to the instruction he had given to Jordan about precautions to take when passing horses while on an ATV.
6. 6Mr. Musclow testified that although his bike was built smaller and faster, he denied that it was louder than a non-racing ATV. He did not dispute Ms. Prentice’s evidence that the ATV was modified with a header to make the muffler louder, testifying that he did not modify the ATV but bought it the way it was.
7. 7Mr. Musclow testified that he took reasonable steps to avoid frightening the horses. I make no finding or comment on this point, which I find is outside the jurisdiction of this tribunal to decide. Similarly, with respect to Northbridge’s submission that Ms. McAlpine’s relative inexperience with Indigo was a factor in causation, I make no comment except to say that this would not disqualify her from claiming accident benefits in the event of an accident.
8. 8Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (ONCA)
9. 9Predecessor versions of the Schedule, before 1996, provided access to first party statutory benefits where the use or operation of an automobile directly or indirectly caused an impairment. Under these prior regimes, the question of whether or not a person was involved in an “accident” involved a two-part test set out by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405 (S.C.C.). The two-part test set out the following questions: 1) The purpose test: Did the accident result from the ordinary and well-known activities to which automobiles are put? And 2) The chain of causation test: Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the appellant’s injuries and the ownership, use or operation of his vehicle, or is the connection between the injuries and the ownership, use or operation of the vehicle merely incident or fortuitous? Under the more restrictive definition of accident, the Amos test has limited relevance and the causation part can no longer be used to interpret the definition of “accident”.
10. 10See Black’s Law Dictionary.
11. 11Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338 (ONCA)
12. 12Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (ONCA)
13. 13Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ON CA), [2004] 72 O.R. (3d) 338 ONCA
14. 14Resulting in catastrophic injury.
15. 15Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ON CA), [2004] 72 O.R. (3d) 338 ONCA
16. 16See footnote 9, supra, re Amos test.
17. 17Greenhalgh was an “uninterrupted journey” case. In Greenhalgh, the insured took a wrong turn on a country road and became stuck on ice when she tried to turn her car around. She tried to use her cell phone to call for help but the battery died, so she and her companion began to walk to get help. They became disoriented and walked for hours before they were found. As a result of exposure to cold, the insured suffered frostbite which in turn resulted in the amputation of her fingers and of her legs below the knees. In overturning the trial judge’s finding of an accident within the Schedule, the Court of Appeal concluded that, while the Amos test had been met, the facts of the case did not satisfy the more stringent test set out in Chisholm. Specifically, the Court of Appeal concluded that there were numerous intervening events between the time the insured’s car became stuck and the time that she was found that were not “a normal incident of the risk crated by the use or operation of the car” and that as such the “dominant feature” of her injuries was her exposure to the elements, rather that the use and operation of a vehicle.
18. 18Seale and Belair Insurance Company Inc. (FSCO A01-000635 January 31, 2002), appealed as Belair Insurance Company Inc. and Seale (FSCO P02-00005, January 28, 2003)
19. 19See Seale. See also Shantz and Dominion of Canada General insurance Company (FSCO A01-001147, May 13, 2002) State Farm Mutual Insurance Company and Souchuk (FSCO A01-000309, November 27, 2002) affirmed on appeal (FSCO P02-00039, January 8, 2004). See also Webb (overturned on appeal but analysis of causation upheld).
20. 20There is no dispute that the ATV is an automobile which was engaged in what is perhaps the most ordinary use to which vehicles are put: driving.
21. 21To put this distance into perspective, one American (NFL) football field is 100 yards long, and 100-150 yards is substantially longer than four to six cars.
22. 22The Highway Traffic Act defines “highway” as follows: “ highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof.
23. 23[2012] ONCA 302. In Downer, the plaintiff was assaulted by unidentified assailants while sitting in his car at a gas station.
24. 24[2013] ONCA 19. In Martin, the plaintiff was loading his car after leaving his work at a night club when he was attacked by unknown assailants in a parking lot who pepper sprayed him, forced him into the trunk and then forced him to help them drive his car away as they continued hitting him in the head. In both Downer and Martin, the Court of Appeal concluded that it is not enough to show that an automobile is the location of an injury inflicted by tortfeasors or somehow involved, but that the automobile must have directly caused the injury and that an intervening act in the form of an assault could not be said to have been part of the ordinary course of things.
25. 25And that, but for the panic brought on by getting stuck in the mud, the horse would not have assaulted Ms. McAlpine.