Ignazio Salamone v. Aviva Canada Inc., 2015 ONFSCDRS 260

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2015 ONFSCDRS 260

FSCO A14-006236

BETWEEN:

IGNAZIO SALAMONE

Applicant

and

AVIVA CANADA INC.

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Arbitrator Barry S. Arbus, Q.C.

Heard:

In person at ADR Chambers on June 15, 16, 17 and August 17, 2015

Appearances:

Mr. Alexander Voudouris for Mr. Ignazio Salamone

Mr. Robert H. Rogers for Aviva Canada Inc.

Issues:

The Applicant, Mr. Ignazio Salamone, was involved in an incident (“the Incident”) on February 2, 2013 that gives rise to the dispute between the parties. The Applicant applied for statutory accident benefits from Aviva Canada Inc. (“Aviva”) payable under the Schedule.¹ An issue arose between the parties as to whether the Applicant was involved in an accident as defined by Section 3(1) of the Schedule. The parties were unable to resolve their dispute through mediation and Mr. Salamone, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended. The parties requested that this Hearing be restricted to one preliminary issue and the Hearing of all other issues be postponed until determination of the preliminary issue.

The issue in this Preliminary Issue Hearing is:

Was the Applicant involved in an accident as defined by Section 3(1) of the Schedule?

Result:

The Applicant was not involved in an accident as defined by Section 3(1) of the Schedule.

EVIDENCE AND ANALYSIS:

Background

On February 2, 2013, the Applicant was driving his 2002 Chevrolet van on Gardiners Road in Kingston, Ontario. At the time of the Incident, the Applicant was 56 years of age, married with three grown-up children. The Applicant was the sole occupant of the motor vehicle, the front seats of which were comprised of two bucket seats with a space console between them. The Applicant had a cardiac event causing him to lose consciousness, resulting in him slumping over the driver’s seat and losing control of the vehicle. The vehicle slid along a guardrail, across oncoming traffic to the other side of the road, hit another guardrail, ricocheted back to the first side of the road, eventually leaving the roadway, crossing over a ditch and ending with the van straddling the ditch, whereupon the van came to a stop at an angle. The Applicant was seat belted at all times.

Within one minute of seeing the van sliding along a guardrail, Mike Grey, who was a 29-year-old tow truck driver and former part-time junior paramedic in British Columbia and certified in First Aid and CPR, was at the scene attempting to render assistance to the Applicant. Because the driver’s door was damaged as a result of the collision, Mr. Grey was only able to enter the van through the passenger door. He was unable to perform CPR for several reasons, including the instability of the van, its location, his inability to extricate the Applicant safely from the van, and his concern about possible spinal cord injury. Ultimately, it was a further eleven minutes until EMS personnel arrived, after which time it took additional time and at least three EMS personnel to extricate the Applicant from the van, by which time it was determined that the Applicant had sustained a severe neurological impairment.

The Applicant’s Position

Section 3(1) of the Schedule reads as follows:

(1) In this Regulation,

“accident” means an incident in which the use or 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.

Relying on Smith v. Co-operators,² the Applicant states that the Schedule is to be read liberally and in favour of Insureds whenever possible, keeping in mind the Insurer’s duty of utmost good faith. The Court of Appeal, in Greenhalgh v. ING Halifax,³ stated that the test involves a consideration of the following two questions: (1) did the incident arise out of the use or operation of an automobile; and (2) did such use or operation directly cause the impairment.

The first question addresses what has been referred to as the “purpose test”, in other words: for what purpose was the automobile used or operated at the relevant time and did the incident arise out of the ordinary and well-known activities to which automobiles are put.

The second question concerns direct causation and the legislation requires a direct link of causation that will often depend on the circumstances in each case. Mr. Voudouris proposes that the Applicant meets the purpose test in that he was driving his van which struck a pole, two guardrails and a ditch. Mr. Voudouris analogizes the Applicant’s actions to the facts in the Greenhalgh case as having met the purpose test and states that in his opinion, there is no difference in losing control of one’s car, whether it be due to inattention, falling asleep, intoxication or a heart attack. The Applicant’s Counsel also points out that in the Greenhalgh case, there are two questions that must be answered in order to determine the “causation test” and they are as follows: (1) the “but for” consideration; and (2) the “intervening act” consideration. The Applicant’s Counsel submits that but for the Applicant driving his van, resulting in a collision, being stuck over a five foot ditch and the van’s instability, the Applicant would not have been denied CPR for a total of twenty minutes, therefore he would not have had delayed defibrillation and sustained the neurological brain impairment that he did, nor would the severity have been as materially substantial. The Applicant’s witnesses, Dr. Michael Rathbone and Dr. Martin Myers, testified that in their expert opinion, it was probable that the Applicant would have had a good neurological outcome had CPR been initiated by Mike Grey when he first arrived on the scene within one minute of the onset of the Applicant’s heart attack.

The Applicant’s Counsel argues that there can be more than one direct cause for the impairment and feels that the Applicant’s inability to get timely CPR and being trapped in a car clearly constituted regular and ordinary use and operation of a motor vehicle and the Applicant’s becoming unconscious is no different than an individual falling asleep or being intoxicated and the reason for one’s inability to maintain control of the vehicle is immaterial.

The Applicant’s Counsel states that the chain of events clearly constituted regular and ordinary use of a motor vehicle and thus, “an accident” resulting in the Applicant’s poor neurological outcome.

The Court of Appeal in Greenhalgh also dealt with what is referred to as the “dominant feature” of the injuries. By analogy, Mr. Voudouris argued that the dominant feature in this case squarely was the motor vehicle accident which delayed the Applicant’s treatment intervention, resulting in his severe neurological outcome. The Applicant’s Counsel further points out that Section 3 of the Schedule defines impairment to mean a loss or abnormality of a psychological, physiological or anatomical structure or function. He, therefore, states that the Applicant sustained an impairment as a direct result of the use or operation of an automobile. Mr. Voudouris states in summary that the Applicant would have had a good neurological outcome but for his use or operation of his motor vehicle.

The Insurer’s Position

Mr. Rogers, as Counsel for the Insurer, points out that in 1997, the definition of “accident” was changed by deleting the word “indirectly”, leaving a much narrower and more stringent causation requirement for an Applicant to meet. This change reflects a government policy decision to hold insurance companies responsible only for injuries directly caused by the use or operation of an automobile. Mr. Rogers argues that the “material contribution” test has no application in determining whether an incident qualifies as an accident; it applies only when there are multiple causes of impairment but has no application in deciding the additional coverage question whether use or operation of an automobile directly caused an impairment.

The Insurer argues that the causation test can be met if it can be shown that some event subsequent to the heart attack led to an increase in the level of impairment. The Insurer argues that the heart attack was not caused by the driving of a vehicle or the crashing of a van; it was caused by blockage of an artery. The Insurer argues that even if the Applicant had not been trapped in the van, it was highly unlikely that any resuscitation by the paramedics would have been successful to the point of allowing him to have enjoyed a significantly better neurological outcome. The Insurer points out that Dr. Myers’ report states that when CPR is not administered at once in an out-of-hospital cardiac arrest situation, survival with reasonably normal neurological function would occur in less than 10% of cases.

Dr. Yufi, who was the medical expert for the Insurer, stated that one could only speculate whether earlier resuscitation efforts would have resulted in a more favourable neurological outcome. He states that the severe neurological impairment had more to do with the eleven-minute delay in the arrival of the EMS than the inability of Mike Grey, the tow truck driver, to render CPR.

The Insurer agrees that the two tests to apply are: (1) the purpose test: did the incident arise out of the use and operation of an automobile and, if so, (2) the causation test: did the use and operation of the automobile directly cause the impairment. The Insurer relies on Chisholm v. Liberty Mutual Group⁴ as refined in the Greenhalgh case. The Insurer concedes that the purpose test is satisfied by the circumstances in this case in that the Applicant was driving his van down the highway. The Insurer relies on the Waters and Royal & Sunalliance Insurance Company of Canada⁵ case where the Applicant suffered a heart attack while driving his vehicle, collided with a large planter and pole and died. Arbitrator Novak found the incident did not meet the definition of an accident stating that the fact that Mr. Waters experienced his fatal heart attack while operating a vehicle as opposed to while walking down the street is not enough to bring the circumstances within the meaning of the term “accident” as defined.

The Insurer then examines the “but for” test. Applying the “but for” test, the Insurer argues, is an exclusionary test rather than a causation on its own. The Insurer argues that the use and operation of the vehicle was irrelevant to the direct cause of the brain impairment; it was the heart attack. The Insurer claims that to satisfy the “but for” test, the Applicant would have to demonstrate that had he suffered the heart attack without the use of the van, he would have received more timely and beneficial resuscitation assistance. That would require him establishing that had the Incident occurred in a different place, he would have had the benefit of a CPR-trained bystander at hand and the likelihood of this was not established. Similarly, the Applicant would have to prove that but for driving his van, the paramedics would have arrived at the scene more quickly. There is no evidence to support that either, according to the arguments of the Insurer.

The Insurer argues that effective CPR applied on a timely basis cannot be assumed and accordingly the Applicant does not satisfy the “but for” test.

The Law

Tests to Apply

In Amos v. Insurance Corporation of British Columbia,⁶ the Supreme Court held that the British Columbia legislature intended a broad coverage for incidents arising from the “operation” of a vehicle.

In Chisholm v. Liberty Mutual Group, the Ontario Court of Appeal reviewed the Amos test and stated that the Amos test no longer applied. The Court held that the more stringent causation requirement, “directly causes”, which was introduced in Ontario’s 1996 version of the Schedule,⁷ means that the Amos test, or at least the causation part of that test, can no longer be used to interpret the definition. The Court in Chisholm states:

The 1996 Schedule reflects a government policy decision. The government decided to circumscribe the insurance industry’s liability to pay no-fault benefits by holding it responsible only for injuries directly caused by the use or operation of a car. Like almost any statutory standard, the direct causation requirement will, at the margins, produce hard cases, perhaps even sympathetic cases and seemingly arbitrary results.

It is clear that the first three or four minutes following the Applicant’s heart attack were critical. Had Mr. Grey been able to start CPR immediately, would the outcome have been different? There is no conclusive evidence to support this conclusion. It is possible that Mr. Salamone’s result could have been more favourable had Mr. Grey been able to extricate him from the van and start CPR immediately. I think too much emphasis has been placed on this possibility. Had Mr. Salamone been walking on the street rather than in his van, the possibility of someone being nearby to immediately start CPR is very remote. The evidence of all witnesses seems to be that unless the person suffering the heart attack can get immediate assistance, the longer the delay in medical assistance, the less positive the outcome.

The Applicant’s Counsel cites the Greenhalgh v. ING Halifax case where the Court of Appeal utilized two tests: the purpose test and the causation test, both of which must be satisfied for the Applicant to succeed. The purpose test asks whether the incident arose out of the ordinary and well-known activities to which automobiles are put. There is no question that in this case, in fact both parties agree, that the purpose test has been satisfied in that the Applicant was driving his van down the highway when the heart attack occurred.

The second test, which is the causation test, asks whether the use and operation of the automobile directly caused the impairment. In Greenhalgh, the Court of Appeal analyzed this causation test by stating that the legislation requires a direct link of causation which they stated will depend on the circumstances of each case. Greenhalgh provided three bases or prongs under which the causation could be met.

A. The “But For” Test

Chisholm made it clear that the “but for” test is an exclusionary test to rule out irrelevant causes without establishing the legal causation on its own. Clearly, in our case, the heart attack was the cause of the impairment and not the driving of the van. I am not satisfied that the Applicant would satisfy that “but for” driving his van, CPR would have been available any more quickly than the 14 minutes that it took from the time of the incident for EMS to arrive. Had the Applicant been walking on the street, there is no evidence to suggest that EMS would have been available any sooner than it arrived.

B. Intervening Act

The “intervening act” test is stated in Greenhalgh. The delay of 11 minutes, by all accounts, clearly took the impairment suffered by the Applicant from being possibly a good result to the serious impairment that resulted. Although there was some contradictory evidence that earlier CPR would have made a difference, I accept the fact that earlier intervention would likely have resulted in a more positive result. However, I am not satisfied that under the current legislation this is relevant. As pointed out above, since 1996, the change of the definition of an “accident” has become a crucial part of the case law. At that time, the definition of an accident was changed to remove the word “indirectly”, leaving a much more restrictive definition of accident.

The “intervening act” concept will not absolve an Insurer of liability if it can be considered a normal incident of the risk created by the use or operation of the car; i.e., if it is part of an ordinary course of things. In our case, the Applicant’s heart attack cannot be considered an intervening act in the ordinary course of things; it was the direct cause of the brain injury. The operation of the car was not the direct cause of the injury. For the Applicant to succeed, he would have to establish that there was another, later intervening act that brought the use and operation of the vehicle back into play. I do not find this to be the case. In fact, the heart attack is an intervening act. There is no subsequent intervening force to break this chain of causation.

The Applicant has not met the burden of establishing that the use and operation of the vehicle caused the impairment. The evidence clearly shows that the heart attack resulted in a lack of oxygen to the Applicant’s brain, causing the Applicant’s brain injury and impairment. I accept the Insurer’s argument that the heart attack was an intervening event that started the chain of events that led to the Applicant’s current impaired state. It was not the operation of the van.

C. Dominant Feature Enquiry

In Chisholm, the Court of Appeal examined the dominant feature of the accident. The case clearly states that the “dominant feature” is that aspect of the situation that most directly caused the injuries. A number of cases examined what the dominant feature of each injury was. It is clear that in the Applicant’s case, the dominant feature of his brain injury and impairment was the heart attack. It was the triggering event. The heart attack caused the crash which led to the vehicle ending up in the ditch. In Waters and Royal & Sunalliance, where the Applicant experienced a fatal heart attack, the Arbitrator states, “The fact that Mr. Waters experienced a fatal heart attack while he was operating his vehicle, as opposed to while walking down the street, is simply not enough to bring these circumstances within the meaning of the term “accident” as defined in the Regulation”. I feel that this is analogous to our situation which demonstrates that the heart attack was the dominant feature of the Applicant’s brain injury and impairment. Although it might be a material contribution, this is not sufficient to make any of the other injuries, other than the heart attack, the dominant feature.

Conclusion

In conclusion, I am satisfied that the Applicant was able to satisfy the purpose test as set out in Greenhalgh. He has fallen short on each of the three prongs of the causation test.

EXPENSES:

The parties made no submission on expenses. They are encouraged to resolve this issue. If they are unable to do so, they may schedule an Expense Hearing before me according to the provisions of Section 79 of the Dispute Resolution Practice Code.

November 30, 2015

Barry S. Arbus, Q.C.

Arbitrator

Date