North Waterloo Farmers Mutual Insurance Company v. Khuram Samad, 2017 ONFSCDRS 66

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 66

Appeal P16-00037

Appellant

and

Respondent

BEFORE:

David Evans

Nicholaus de Koning for North Waterloo Farmers Mutual Insurance Company

Samia Alam for Mr. Khuram Samad

November 25, 2016 in Hamilton, Ontario

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

The Arbitrator’s Order of April 1, 2016 is confirmed and this appeal is dismissed.
If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

March 2, 2017

David Evans Director’s Delegate

Date

I. NATURE OF THE APPEAL

North Waterloo Farmers Mutual Insurance Company¹ appeals the decision of Arbitrator Arbus dated April 1, 2016, wherein the Arbitrator found Mr. Samad, North Waterloo’s insured, was in an “accident” despite being the victim of an assault.

I find that the Arbitrator did not err because, in the particular circumstances of this case, the assault was not a dominant feature of the incident leading to Mr. Samad’s impairment.

II. BACKGROUND

Mr. Khuram Samad, a taxi driver, was assaulted by a passenger on December 31, 2012. The issue before the Arbitrator was whether the incident was an “accident” as defined by s. 3(1) of the 2010 SABS,² namely “an incident in which the use or operation of an automobile directly causes an impairment…” The parties agree that Mr. Samad suffered an impairment (a fractured leg) directly caused by the incident, but not that the use or operation of his van was part of it.

The incident happened after Mr. Samad picked up three teenagers on Yonge Street in Newmarket. The Arbitrator noted that, after one passenger punched Mr. Samad harmlessly in the face, Mr. Samad stopped the van and the passengers left it, leaving a rear door ajar:

Mr. Samad exited the van from the driver’s side, went around to the other side of the van to close the rear door and was shoved once by one of the passengers, whereupon he fell into the ditch and was injured. The passengers then fled on foot. Mr. Samad climbed out of the ditch, re-entered the van and attempted to drive further north on Yonge Street, with the pain intensifying, at which time he pulled over and called the police and was taken by ambulance to the hospital.

Critical also to the Arbitrator’s conclusion was Mr. Samad’s testimony that there was ice underfoot when he was pushed. The Arbitrator discussed this when dealing with the intervening act and dominant feature tests of causation, referred to below.

Mr. Samad’s insurer submitted that the assault was not an ordinary and well-known activity to which an automobile is put, that it was an intervening act that directly caused Mr. Samad’s impairment, and that it was the dominant feature of the incident. Mr. Samad submitted that the assault was only one direct cause of his injuries, the other being the use or operation of his motor vehicle.

First, the Arbitrator considered the purpose test, the starting point in determining if an incident was an accident, as set out by the Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 OR (3d) 338. The Arbitrator noted that the purpose test asks whether the incident arose out of the ordinary and well-known activities to which automobiles are put. He found the purpose test was satisfied because the taxi was being used for its ordinary purpose of picking up and transporting passengers.

Next, the Arbitrator considered the causation test, which asks whether the use and operation of the automobile directly caused the impairment. The Court of Appeal in Greenhalgh provided three bases or prongs for meeting causation.

The first Greenhalgh prong is the “but for” test, which as the Arbitrator noted is an exclusionary test to rule out irrelevant causes without establishing legal causation on its own. He found that but for Mr. Samad’s use or operation of his van he would not have suffered an impairment, so the van’s use or operation was not an irrelevant cause.

The second Greenhalgh prong asks if there was any intervening act. The Arbitrator referred to Wawanesa and Webb (FSCO P11-00015, July 18, 2012) for the proposition that there can be more than one direct cause of an impairment, as long as one of the direct causes is the use or operation of a motor vehicle. The Arbitrator found that Mr. Samad met this second test because he did not find the intervening acts of the assault by one of the passengers or the slipping on the ice were enough to disentitle Mr. Samad from his claim.

The third prong is the dominant feature enquiry. The Arbitrator found there was not one dominant feature. He found he could not isolate either the assault or the slipping on the ice from the entire chain of events that tied into the use or operation of the automobile.

Accordingly, the Arbitrator found that Mr. Samad satisfied the purpose test and the three prongs of the causation test, so he was in an accident as defined in the SABS.

III. ANALYSIS

The two main tests to determine if an incident was an accident are the purpose and causation tests.

The Supreme Court stated in Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, that the purpose test asks: Did the accident occur in the course of the ordinary and well-known activities to which automobiles are put? The question is meant to simply exclude aberrant situations. As discussed in a moment, I agree that the use or operation of the van as a taxi was an ordinary and well-known activity that continued throughout the incident leading to the impairment.

Regarding the causation test and its three prongs, the Court in Greenhalgh noted that the first but for test can act as a useful screen. I agree with the Arbitrator that the but for test was met in this case. The overall focus of the submissions regarding causation was on the second and third prongs, the intervening act and dominant purpose tests. The intervening act question asks if there was 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 dominant purpose test asks if the use or operation of the automobile was the dominant feature of the incident.

On the intervening act test, the Arbitrator provided very little analysis, simply finding that the intervening act of the assault by one of the passengers or the Applicant slipping on the ice was insufficient to disentitle Mr. Samad.

North Waterloo’s submissions relate to both the use or operation and intervening act tests. It submits that the use or operation of the taxi had stopped at the point Mr. Samad was closing the van door, and that slipping on ice itself was an intervening act that was not part of the “ordinary course of things.” However, prior to the hearing in this matter, I advised the parties of a couple of decisions dealing with slipping on ice around the use or operation of an automobile:

There has been extensive discussion of the cases, but I don’t see reference to two “interrupted journey” cases that may be relevant and that went to appeal.

In one case, the Applicant was found to have been involved in an accident when he fell on ice as he approached his car after filling tires with air: Federation Insurance Company of Canada and Saad, (FSCO P03-00017, January 8, 2004).

Another case described as even “closer to the line” than Saad was one where the Applicant was found to be involved in an accident when running to check on her friends in another car: State Farm Mutual Insurance Company and Souchuk, (FSCO P02-00039, January 8, 2004).

I find that these cases support both the proposition that the use or operation of the van continued during the course of the incident, and that slipping on the ice while so engaged was not an intervening event. I note that in this case, Mr. Samad not only planned to continue operating the van as he was closing the sliding van door, he did continue operating the van, despite his broken leg. Further, cases like Saad show slipping on ice while using or operating a vehicle is also part of the “ordinary course of things.” In that regard I distinguish Webb, upon which North Waterloo relies, because it dealt with the situation where the insured slipped on ice after leaving the vehicle and with no intention of returning to it, so her use or operation of it was over.

That leaves the matter of the assault. As the Arbitrator noted, Webb does reiterate the proposition that there can be more than one direct cause of an impairment.

North Waterloo’s essential argument is that slip and fall cases like Saad fall on one side of this line-drawing exercise, and assaults on the other. It submits that an assault with an element of slipping is still on the not-accident side of the line. Therefore, it submits that whether you consider the intervening act or the dominant characteristic criteria, it is still an assault scenario.

I agree that in the vast majority of cases, whether at FSCO or before the courts, assaults are seen as intervening acts, so the vehicle is only the location of the assault and not a direct cause of any impairment resulting from the assault: see, for instance, the discussion in Clarke and TTC Insurance Company Limited, (FSCO P13-00012, April 11, 2014), involving a fight on a bus. Similarly, Downer v. The Personal Insurance Company, 2012 ONCA 302 and Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19 were assault cases where the vehicle was found to be merely the location for the assault, subject to limited exceptions.

However, I find that the Arbitrator was correct in finding that the use or operation of the vehicle was not simply incidental to the assault but contributed to the impairment. I find this case resembles the scenarios discussed in Lombard General Insurance Company of Canada and Liu, (FSCO P02-00030, January 8, 2004) and CGU Insurance Company of Canada and Irving, (FSCO P03‑00022, November 29, 2004). These cases suggested that if an assault occurs while an automobile is being operated that causes the vehicle to crash and the insured is injured in the subsequent collision, then the insurer would be liable to pay. I find little difference in principle between those scenarios and what happened in this case, where Mr. Samad was still in the process of using or operating his vehicle when the combination of the assault and the slippery ice contributed to his slip and fall.

As to the dominant purpose test, the Arbitrator found no one dominant feature between the assault and slipping on the ice:

I am satisfied in this case that there is not one dominant feature that is the cause of the Applicant’s impairment. I do accept the argument of the Applicant that it is the entire series of events that started with the use or operation of the automobile and ended in an injury because of the use and operation of the vehicle which caused the impairment. I do not feel that you can isolate either the assault by one of the passengers or the slipping on the ice by the Applicant from the entire chain of events which was tied into the use and operation of the automobile.

I take the Arbitrator to be saying that the dominant feature throughout was the use or operation of the van, and neither the assault nor the slipping on the ice detracted from it. Further, there was evidence before the Arbitrator that the assault and slipping on the ice could not be separated from each other. Mr. Samad testified to that effect regarding those factors as well as his attempt to close the van door:

It’s very hard to describe, it’s like there was like three factors there which I can see that one was like the push is for sure there and I was holding the hand[le] and it’s a sliding door. There’s – but there’s ice too on the floor, on the thing also like, so it was too instant, like I was closing the door because that sliding door is when you have it, it’s stick a little bit on your body like to just close it. I don’t know it’s – I was middle of there, so I don’t know what to – like there was three things at a time, I don’t see it. ³

Shortly thereafter, he was specifically asked if he felt the push caused him to fall into the ditch:

I can’t like say the push was there, that’s for – that’s for sure, he did push me and I was closing the gates, and icy conditions was there too, so I – it’s like all of everything I can say that, like…⁴

Finally, when asked if he felt that the assault was the main factor that caused his injuries, he replied: “It was one of the factors, yes.”⁵

In conclusion, the Arbitrator found that the incident started with the use or operation of the van. He found that Mr. Samad was still using or operating his van when the combination of the assault and the slippery ice led to his impairment. He found the assault itself was not a dominant feature of the incident, and as already noted, slipping on ice is part of the ordinary course when one is using or operating an automobile. There was evidence before the Arbitrator to support these conclusions. Accordingly, I do not find that he erred in concluding that Mr. Samad was involved in an accident on December 31, 2012.

The appeal is therefore dismissed, and the Arbitrator’s order is affirmed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

March 2, 2017

David Evans Director’s Delegate

Date

Footnotes

Now known as Heartland Farm Mutual Insurance Inc.
The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
Transcript of the arbitration, p. 32, Q. 102.
Transcript of the arbitration, p. 33, Q. 104.
Transcript of the arbitration, p. 34, Q. 112.