G.S. v. Wawanesa Mutual Insurance Company, 2017 CanLII 148391

Between:

G.S.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

Adjudicator: Deborah Neilson

Appearances:

For the Applicant: Seema Passi, Paralegal

For the Respondent: Sonya Katrycz, Counsel

Heard in Writing: April 20, 2017

OVERVIEW

The applicant, G.S., sustained injuries on September 1, 2016, when he was assaulted in a parking lot. He applied to his automobile insurer, the respondent Wawanesa Mutual Insurance Company (“Wawanesa”), for statutory accident benefits. Wawanesa denied his claim for benefits. The applicant appeals to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
This is a preliminary issue hearing. The respondent claims the applicant’s injuries were not sustained in an automobile accident within the definition of “accident” set out in s.3 (1) of the Statutory Accident Benefit Schedule - Effective September 1, 2010 (the “Schedule”).
The parties agreed at the case conference that the sole issue to be decided is as follows:

Is the applicant precluded from applying for benefits under the Schedule as the injuries sustained are alleged to have not occurred as a result of an “accident” as defined in section 3(1) of the Schedule?

In order for the applicant to claim any accident benefits from the respondent and continue with his application at the Tribunal on the substantive issues, I must find that the use or operation of an automobile directly caused the impairments he sustained from the incident that occurred on September 1, 2016.
Both parties, in their written submissions, raised a new issue of whether each party is entitled to their costs of the preliminary issue hearing. The applicant also raised a further issue of whether he is entitled to an award pursuant to O/Reg 664.

RESULT

I find that the applicant is not entitled to benefits under the Schedule because the injuries that he sustained on September 1, 2016 were not from an “accident” as defined in section 3(1) of the Schedule. The direct cause of the applicant’s injuries was the assault made against him, and not the use or operation of his automobile.
Neither the applicant nor the respondent provided any evidence or submissions to support their claims for costs or for the applicant’s claim for an award under O/Reg 664. Neither party is entitled to their costs of the preliminary issue hearing because neither party has provided any evidence that the other party in the proceeding acted unreasonably, frivolously, vexatiously or in bad faith.
The applicant is not entitled to an award under O/Reg 664 as there is no evidence to support that the respondent unreasonably withheld or delayed payments.

FACTS

The parties relied on the examination under oath of the applicant taken on October 17, 2016. The applicant also relied on the affidavit evidence of A.S., who was a passenger in G.S.’s vehicle on the evening of the assault and witnessed the incident.
According to the evidence of G.S. and A.S., on September 1, 2016, at about 11:15 p.m., G.S. drove his 2009 Honda CRV to a pizza restaurant. The plan was for A.S., his passenger, to obtain something to eat from the pizzeria, and then they would proceed to the downtown area.
The applicant parked his Honda in the parking lot in front of the pizzeria beside a car with its windows rolled down. There were four male passengers in the neighboring car. As the applicant exited his Honda and started to walk to the pizzeria, one of the men in the neighboring car stated to the applicant “yo, guys, do you have any problem.” The applicant responded “no, we don’t have any problem, what’s going on.” The man then got out of the neighboring car with a two to three foot long sword or machete and started swinging it at the applicant. A.S. also got out of the Honda and started running to the applicant to help him. The other three men remaining in the neighboring car jumped out and surrounded A.S. and attacked him. Two more men from another car in the parking lot joined in to attack A.S. and G.S.
The applicant was struck two or three times with the sword on the forearms and hands when he put his arms up to try to protect himself. He was pushed into the Honda, causing a dent in the fender. He was struck on the back of the head by the sword. When A.S. came over to protect the applicant, the sword wielder started to go after A.S. At that point, the applicant managed to get back into his car, put his seatbelt on and turn on the engine. He either hit his left knee on the car door as he was entering the Honda or it was hit by the sword.
When A.S. saw that the sword wielder was coming after him, he managed to get into the Honda as well, after which all the attackers surrounded the Honda. The sword wielder then struck the driver’s side window with the sword until it broke. The glass from the window hit the applicant’s face and hands. The sword wielder tried to hit the applicant inside the Honda with the sword while the applicant tried to hold the sword away. As a result, G.S. received a cut to his right hand requiring 9 stiches and his elbow was struck by the sword. The applicant had other cuts to his hands and arms. He was not sure whether they were caused by the sword, the glass from the broken driver’s side window, or from striking other items within the Honda while he was trying to protect himself from the sword.
As the sword wielder was trying to break the front windshield and the Honda was surrounded by the other assailants, a man from the pizzeria came outside to help G.S and A.S. He, along with a second man from the pizzeria, managed to chase away the assailants, but not before the first man from the pizzeria was struck by one of them. The assailants ran away to their cars and drove off.

ANALYSIS

According to the definition in s.3(1) of the Schedule, “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.
There is no dispute about whether G.S. sustained a physical impairment from the assault. He also suffers from a psychological impairment because of his fear of being assaulted again. As a security guard, G.S. is required to conduct night patrols from a vehicle. His fear of being assaulted again affects his ability to work as a security guard. The issue is whether those impairments were directly caused by the use or operation of the applicant’s Honda.
Both parties referred me to the Supreme Court of Canada decision of Amos v. Insurance Corp. of British Columbia¹. Mr. Amos was shot while driving his vehicle. The applicant submits that the relevant test from Amos for interpreting the definition of “accident” in s.3(1) of the Schedule is as follows:

i. Did the accident result from the ordinary and well-known activities to which automobiles are put, or was the car used for an "ordinary and well-known" motoring activity?

ii. 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 incidental or fortuitous?

The first part of the two part test, the ordinary and well known activities to which vehicles are put, is described as the purpose test. The second part of the test, the nexus or causal relationship, is the causation test.

The Amos purpose test has been found by the Ontario Court of Appeal to apply to the definition of “accident” in s.3 (1) of the Schedule². This means that before determining whether the accident was causally connected to the use of the car, it has to be determined whether the car was being used in a manner that would be covered by the insurance at all.
The parties agree that the purpose test from Amos applies to the definition of “accident.” Where they disagree is with the causation test. The applicant submits that the causation test in Amos applies to the interpretation of “accident” in s.3 (1) of the Schedule. I disagree with this submission. Amos dealt with British Columbia legislation that required insurers to provide benefits for death or injury caused by an accident that “arose out of the ownership, use or operation of a vehicle.” The term “arose” in the B.C. legislation is much broader than the “direct cause” requirement in the definition of “accident” in s.3 (1) of the Schedule. Further, ownership of the automobile was part of the definition of “accident” that Supreme Court of Canada was dealing with in Amos. Ownership of a vehicle has no relationship to the definition of “accident” in s.3 (1) of the Schedule.
The applicant relies on the Supreme Court of Canada decision of Lumbermens Mutual Casualty Co. v. Herbison³ to support the proposition that the broad causation test in Amos applies to the definition of “accident in s.3(1) of the Schedule. The Lumbermens v. Herbison decision did not deal with statutory accident benefits. It dealt with liability coverage under an automobile insurance policy and a broader definition of “accident” than the definition in the Schedule. Accordingly, I find it does not apply to the case at hand.
Part two of the Amos causation test relied on by the applicant was rejected by the Ontario Court of Appeal in Chisholm v. Liberty Mutual Group. I am bound by the Court of Appeal, who rejected the Amos causation test because it does not require a direct or proximal causal relationship between the applicant’s injuries and the use or operation of a vehicle⁴. Chisholm v. Liberty Mutual Group is a leading decision that determined that the legal entitlement to accident benefits pursuant to the definition of “accident” in the Schedule requires not just that the use or operation of a car be a cause of the injuries, but that it be a direct cause.
Following the Chisholm decision, the Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. provided further clarification of the causation test as follows:

Was the use or operation of the vehicle a cause of the injuries?
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 applicant relies on the Superior Court motion decision of Downer v. Personal Insurance, which held that Mr. Downer was involved in an “accident” when he was assaulted while he stopped for gas and was sitting in the driver’s seat of his car counting out money to pay for the gas⁵. He was able to get away, but not before being struck through the window by his assailants. Mr. Downer was able to escape by driving away, but thought he may have run over one of the assailants.
The motion court decision of Downer was overturned on appeal. The Court of Appeal found that the motion judge erred in law by relying on the location of the attack and on the inferred motive of the assailants as proving that there was a causal relationship between the plaintiff's physical injuries and the use or operation of a motor vehicle⁶. The Court of Appeal determined that the psychological injuries sustained by Mr. Downer may have been caused by his belief that he may have driven over one of his assailants. Driving over someone may be a normal risk involved in the use or operation of a vehicle. Accordingly, the Court of Appeal determined that the matter needed to proceed to a trial on the limited issue of whether Mr. Downer’s psychological impairment was sustained in an “accident.”
The applicant submits that he was unable to escape in his vehicle because it was surrounded by men and he did not want to drive over anyone. He appears to be asking that I draw an inference from this submission that his situation is similar to the psychological injuries Mr. Downer sustained from his belief that he drove over someone. There was no evidence before me that G.S. was unable to drive away because he was afraid he would drive over someone. G.S. stated at his examination under oath that he was unable to drive his car away because of the cut on his right hand.
The applicant submits that the assailants in this case were trying to steal his Honda. His evidence under oath was that he had no indication or belief one way or another that the assailants wanted to steal his car. The applicant relies on the evidence of A.S. who swore on his affidavit that he believed the assailants were trying to steal G.S.’s car.
The applicant appears to rely on the summary judgement motion decision of Justice Gray in the Martin et. al. v. 2064324 Ontario Inc. decision for support that an impairment caused by an assault during the theft of a vehicle is an “accident” as defined under the Schedule⁷. In that case, Mr. Martin was assaulted in a parking lot as he was loading his vehicle. He was forced into the trunk of his car and eventually the assailants, who stole his car, drove over his foot. The defendant insurance company brought the motion to dismiss the claim against it for statutory accident benefits on the basis the plaintiff’s injuries were not sustained in an “accident.” Justice Gray decided that the plaintiff was injured in an “accident” as defined in the applicable Schedule. His decision was overturned by the Court of Appeal who found that, with the possible exception of the alleged injury to the plaintiff's right foot, his injuries did not arise, directly or indirectly, from the use or operation of his vehicle, but arose from an intervening event – an assault⁸.
The Court of Appeal in Downer v. Personal Insurance Co. determined that an assault during an attempted theft of a vehicle does not constitute an “accident” pursuant to s.3 (1) of the Schedule. The Court of Appeal in Downer rejected the assailants’ motive for the assault as part of the test for determining causation.
Based on the reasoning of the Court of Appeal in Downer v. Personal Insurance Co. and in Martin v. 2064324 Ontario Inc. (Freeze Night Club), I do not need to make a determination on whether the assailants were trying to steal G.S.’s Honda.
Regardless of whether the assailants were trying to steal G.S.’s car, I am persuaded that the assault, whatever the purpose, was an intervening act that resulted in the applicant’s injuries. If the purpose of the assault was to steal the vehicle, one has to ask if it can be said to be part of the "ordinary course of the use or operation of a vehicle.” I find that assault to steal a vehicle or even theft of a vehicle are not the ordinary course of things. In fact, theft of a vehicle is an extraordinary event. For these reasons, I find regardless of the reason for the assault on G.S., it was an intervening event that had no relation to the ordinary course of the use and operation of a vehicle.
The applicant submits this is a case of an interrupted journey similar to the allegation made in the Greenhalgh v. ING Halifax Insurance Co. The applicant’s counsel submits that G.S. did not exit his vehicle at any time and that he did not end his journey or course of driving when the assault occurred. This is contrary to both A.S.’s affidavit evidence and G.S.’s evidence under oath where he stated he exited the Honda after which he was attacked. Based on the evidence, I find as a matter of fact that the applicant and A.S. both exited the Honda before G.S. was assaulted.
I reject the applicant’s submission that his injuries were sustained as part of the journey and therefore the ordinary use to which automobiles are put. I do not accept that assaults are contemplated as part of the ordinary course of journeys. The assault is an intervening event that disrupted the journey.
The applicant submits that, because his body struck the Honda when he was pushed into it by his assailant, his knee may have struck the door as he was entering the Honda and he may have been cut by glass from the broken window, his impairments were directly caused by the use or operation of the Honda. G.S’s evidence was that he was not sure whether he sustained cuts from the broken car window glass or whether he struck his knee on the car door. A.S.’s evidence was that some of the applicant’s cuts were caused by the broken glass window.
The Court of Appeal in Greenhalgh v. ING Halifax Insurance Co, endorsed in Downer, stated that under the causation test, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury. In this case, any injury the applicant received while being banged up against the Honda by his assailant, by striking the interior of the Honda to avoid his assailant, or by the cuts he may have received from the window glass was not due to the use or operation of the Honda. The Honda was merely the location of the assault. The assault was the direct cause of the injuries.
The applicant’s injuries could have been sustained if he was pushed up against a mail box or wall rather than a car, or if the glass from a window to a building was broken as the assailant tried to reach the applicant. While it is anticipated that a car window may be broken in a collision with another vehicle or object, a person deliberately smashing a car window to enable a continued assault on the car’s occupant is not the ordinary course of things, or the ordinary use to which vehicles or car windows are put. The fact that G.S. tried to escape to his Honda rather than to a building does not mean the use or operation of the Honda was a direct cause of his injuries.
The applicant relies on the Court of Appeal decision of Economical Mutual Insurance Company v. Caughy⁹ which held that injuries sustained from tripping over a parked motorbike were injuries sustained in an “accident” in accordance with s.3(1) of the Schedule. The Court of Appeal in Caughy dealt only with the purpose test and held that parking a vehicle is an ordinary and well-known activity to which vehicles are put. The decision is distinguishable from G.S,’s case in that Mr. Caughy did not sustain his injuries from an assault or an intervening event. G.S. appears to submit that he had parked his vehicle and that knocking his knee on the vehicle while rushing to get into the Honda to escape his assailants is part of the ordinary use of a vehicle. His evidence was that his knee may have been injured while entering the Honda, which is an activity associated with parking, but it may also have been injured from the assault. The evidence was that the Honda’s fender was dented by G.S. being pushed into it by his assailant. G.S. alleges his back is what caused the dent. However, the height of a fender is more in line with the height of a knee than a person’s back. Accordingly, G.S. has not satisfied me on a balance of probabilities that his knee was injured while entering his vehicle.
I find that the applicant had the misfortune to be assaulted and that it is the assault that caused his injuries and subsequent impairments. The applicant has not proven on a balance of probabilities that the use or operation of his Honda or any other vehicle directly caused his impairments. Accordingly, I find that his injuries were not sustained as a result of an “accident” as defined in section 3(1) of the Schedule. This means he is precluded from applying for benefits under the Schedule and, accordingly, from proceeding with his claim for accident benefits before the Tribunal.

COSTS AND SPECIAL AWARD

Neither party provided any evidence that the other party in the proceeding acted unreasonably, frivolously, vexatiously or in bad faith. Accordingly I find neither party is entitled to their costs of the proceeding.
The applicant provided no evidence to support that the respondent unreasonably withheld or delayed payments. Accordingly I find that the applicant is not entitled to an award under O/Reg 664.

ORDER

For the foregoing reasons, I order the following:

a) The applicant’s application to the Tribunal is dismissed.

b) Both parties’ claims for costs are dismissed.

c) The applicant’s claim for an award under O/Reg. 664 is dismissed.

Released: June 16, 2017

___________________

Deborah Neilson

Adjudicator

Footnotes

Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405 (S.C.C.), 1995 CanLII 66 (SCC)
Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), 2002 ONCA 45020 (Ont. C.A.), [2002] O.J. No.3135, Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426 (Ont. C.A.) leave to appeal to the Supreme Court of Canada denied, Downer v. Personal Insurance Co. , 2012 ONCA 302 (Ont. C.A.) leave to appeal to the Supreme Court of Canada denied
Lumbermens Mutual Casualty Co. v. Herbison, [2007] 3 S.C.R. 393, 2007 SCC 47
Chisholm v. Liberty Mutual Group, supra.
Downer v. Personal Insurance, 2011 ONSC 4980 (Ont. S.C.J.)
Downer v. Personal Insurance Co., (Ont. C.A.), supra.
Martin v. 2064324 Ontario Inc. et al, 2011 ONSC 7145 (Ont. S.C.J.)
Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19
Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (Ont. C.A.)