I. C. v. Intact Insurance Company, 2017 CanLII 69443

Preliminary Issue Decision

Date: 2017-10-19

Case Name: 16-003163 v Intact Insurance Company

In the matter of an Application for pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits

Between:

I. C.

Applicant

and

Intact Insurance Company

Respondent

Adjudicator: Nicole Treksler

Observers: Therese Reilly and Robert Watt, members

Appearances:

For the Applicant: Steven Sieger, counsel

For the Respondent: Tracy L. Brooks, counsel

Closing verbal submissions made by teleconference: May 30, 2017

I. Overview:

[1.] On July 14, 2014, the applicant, I.C., sustained injuries in an incident involving a vehicle and applied for benefits.

[2.] A case conference was held on January 11, 2017, because the respondent had denied four medical benefits for physiotherapy services and a medical benefit for social rehabilitation counselling. The parties were not able to resolve the issues in dispute and the respondent raised the following preliminary issue:

i. Was the applicant in an accident as defined in section 3 (1) of the Schedule?

[3.] The facts of the incident are as follows: On July 14, 2014, the applicant, along with some friends, decided to go "car surfing". "Car surfing" is where people ride on the top or rear of a moving vehicle, or ride behind it on a skateboard or some other wheeled device while attached by a rope.

[4.] The applicant was standing on the rear bumper of the vehicle, holding onto its roof rack. The applicant's friend was standing next to her on the bumper. The applicant was holding the roof rack with one hand, and the shoulder of her friend with another hand. Another friend was a passenger in the front seat, sitting in the open window with "half of his body inside and half of his body outside", recording the activity with his cell phone.

[5.] The driver of the vehicle took a sharp turn and the applicant fell off. According to the applicant, she suffered severe injuries, including a significant head injury.

[6.] The onus is on the applicant based on a balance of probabilities to show that she was involved in an accident as defined by the Schedule.

II. Result:

[7.] I find that the applicant was involved in an "accident" as defined in s. 3(1) of the Schedule, when she was car surfing with some friends.

III. Analysis

Law

[8.] In order to qualify for benefits under the Schedule, a person must be an insured person under an automobile policy, and involved in an "accident".

[9.] The Schedule defines an "accident" as follows:

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.

[10.] The parties agree that the two-part test to determine whether the applicant was in an accident is set out by the Supreme Court of Canada in Amos v. Insurance Corporation of British Columbia, (1995) 1995 CanLII 66 (SCC), 3 S.C.R. 405:

• The purpose test (Did the accident result from the ordinary and well-known activities to which automobiles are put?)
• The causation test

[11.] The case law¹ has since evolved and the causation test has been narrowed.

[12.] In Amos, a direct or proximate causal relationship was not necessarily required between the plaintiff's injuries and the ownership or use of operation of a vehicle. However, Section 3(1) requires a direct cause between the insured's injury and the use and/or operation of a vehicle.

Findings

[13.] I find that the applicant has met both parts of the test, as first established in Amos and narrowed in the case law following the Amos decision.

Purpose test

[14.] Regarding the purpose test, the applicant argues that the vehicle was being used in its ordinary and well-known use in that the vehicle was in operation; it was moving from point A to point B.

[15.] The applicant notes that there have been instances where the Courts have found that the insured was not entitled to benefits when the vehicle was not in operation and was being used in a way that is not typical of a vehicle. Below are a few cases that the applicant cited.

[16.] For example, in Vytlingam,² the defendant transported boulders to an overpass and dropped them onto a passing vehicle. The Court concluded that the insured should not be given coverage given that the claim did not arise from the ownership, use or operation of the vehicle.

[17.] In Olesiuk,³ the insured used the truck's hood as a platform upon which to stand and he fell off and sustained injuries. The insured was not covered because he was not using the vehicle within the meaning of the Schedule.

[18.] The applicant points out in these examples that the car was not in operation and was not being used as means of transportation for persons or goods. In contrast to these examples, the applicant in this case was using the vehicle as a means of transport.

[19.] The applicant concedes that her use of the vehicle was "foolhardy" and "silly," but that should not exclude her from receiving benefits.

[20.] I agree with the applicant that many people use vehicles in a dangerous way and are not excluded from receiving benefits. Some examples include, people standing on the back of a pick-up truck while it is in motion and falling; people texting while driving and getting into an accident, and people sitting on car windows while the car is in motion and falling.

[21.] The respondent argues that in the examples cited above, the person was within the compartment or body of the vehicle although doing so dangerously. In this matter, the applicant was riding outside of the vehicle, standing on the bumper and holding onto the roof rack; a use not intended for the vehicle.

[22.] The applicant refers to Whipple v. Economical⁴ (Whipple) to support her position that coverage has been given to individuals who do silly and foolhardy things. In Whipple, the applicant injured himself while doing a handstand on a stripper pole on a party bus. The respondent points out that the most critical factor in Whipple was the fact that activity engaged in by the applicant which resulted in the injury bore a relationship to the advertised purpose of the vehicle, an entertainment or party vehicle.

[23.] I do agree with the respondent's distinction regarding Whipple. In this matter, the applicant was not using the vehicle in a way in which the vehicle was advertised. As such, the Whipple case does not best support the applicant's position.

[24.] Further, the respondent submits that the applicant was not engaged in a primarily "motoring purpose" when she stood on the rear bumper of a moving vehicle while holding onto a roof rack, while being videoed. Rather, she was using the vehicle for entertainment purposes.

[25.] The applicant indicates that there is an inherent entertainment value in operating a vehicle.

[26.] In Olesiuk, the arbitrator asked "why was Mr. Oleksiuk standing on the truck?"⁵ I must ask the same question: why was the applicant standing on the bumper of the truck? She was standing on the bumper of the truck, holding onto the roof rack, to be transported from point A to point B, albeit in a somewhat unconventional manner.

[27.] I note that the applicant was using the car for entertainment purposes, but I find that the applicant's use of the car was primarily for transportation.

[28.] The next step of my analysis is to address the words "aberrant," "abnormal," or "off-beat" used in the case law.⁶

[29.] I note that the Schedule does not use any qualifying words such as "aberrant", "abnormal" or "off-beat". The Schedule defines an accident as an incident in which the use and operation of an automobile directly causes an impairment. There is no question in this case that the use or operation of the automobile directly caused the applicant's impairment. In my view, the language of the definition in s. 3 (1) creates a presumption that the applicant is entitled to benefits unless the behaviour was so abnormal that it could not have been contemplated by the Legislature in drafting the definition.

[30.] The applicant's position is that her actions were "foolhardy" and "silly," but they were not "aberrant", "abnormal" or "off-beat".

[31.] According to the applicant, car surfing is engrained in our pop culture and offered examples of car surfing in the following films: Teen Wolf (1985); Back to the Future (1985); Toy Story (1995); Spiderman (2002); and 21 Jump Street (2012). In her submissions, she also indicated the prevalence of car surfing activity in videos on YouTube.

[32.] I agree with the respondent that I cannot rely on this information to determine the prevalence of the activity in Ontario. Further, I have no evidence before me that the applicant was even influenced by these pop culture references.

[33.] However, I am persuaded that car surfing has become engrained in our culture since the Ontario Legislature has had to address it in the Highway Traffic Act⁷ (HTA) as an offence under subsections 178(1) and (4). Subsection 178(1) of the HTA states:

"A person riding, riding on or operating a motor assisted bicycle, bicycle, coaster, toboggan, sled, skateboard, toy vehicle or any other type of conveyance or wearing roller skates, in-line skates or shills shall not attach, it, them, himself or herself to a vehicle or street car on a highway."

Subsection 178(4) of the HTA states:

"No person shall attach himself or herself to the outside of a vehicle or street car on a roadway for the purpose of being drawn along the highway."

[34.] While "car surfing" is illegal, it is not any more aberrant, abnormal or off-beat than speeding or texting while driving. Speeding and texting while driving are illegal activities, but would not necessarily disentitle a person to accident benefits.

[35.] The purpose test requires me to determine whether the accident in question was a result of the ordinary and well-known activities to which automobiles are put. I find that it was.

[36.] I find that if the legislation intended to exclude coverage for people who "car surf," the legislature could have imposed restrictions or added exclusions to the Schedule, especially in light of the amendments to add it as an offence.

[37.] Lastly, I also agree with the applicant's position that the Schedule prescribes entitlement to no-fault benefits. The Schedule is designed to give benefits to the insured irrespective of fault. Further, the purpose of the Schedule is to provide consumer protection. Consumer protection requires that there are reasonable expectations between the insured and the insurer regarding coverage. I am of the view that it is reasonable for the applicant to expect that she should be covered for this type of accident.

Causation test

[38.] I find that the applicant has met the second part of the test.

[39.] The applicant submitted an ambulance report which specified that the applicant fell off the vehicle while it was moving and landed on the concrete.

[40.] I do acknowledge that there was a video of the accident, but neither party has access to it. As such, it was not admitted into evidence.

[41.] While I acknowledge that the applicant may not have remembered everything that happened, there is no evidence before me to suggest there was some intervening act, as suggested by the respondent that would interrupt the causal link between the applicant's injuries and the use and operation of the vehicle.

IV. Order:

I order the following:

[42.] The applicant was in an accident as defined by section 3(1) of the Schedule.

[43.] If the parties are not able to resolve the substantive issues in dispute within 30 days of receiving this decision, the matter will be scheduled for a case conference.

Released: October 19, 2017

___________________________

Nicole Treksler, Adjudicator

Footnotes

1. 1Chisholm v. Liberty Mutual Group, (2002) 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776; Greenhalgh v. ING Halifax Co., (2004) 2004 CanLII 7196 (ON CA), 72 O.R. (3d) 388 and Downer v. The Personal Insurance Company, 2012 ONCA 302 frame the causation test as "is there a direct or proximate causal relationship between the plaintiff's injuries and the ownership, use of operation of his vehicle or is the connection between the injuries and the ownership, use of operation of the vehicle, indirect or merely incidental or fortuitous?"
2. 2Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, [2007] 3 S.C.R. 373 (SCC).
3. 3Olesiuk and Kingsway, 2011 CarswellOnt 9791 (FSCO A10-0002609, September 7, 2011), at page 11.
4. 4Whipple v. Economical, 2011 CarswellOnt 11739 (FSCO Appeal P10-00020, October 6, 2011).
5. 5Olesiuk, at para. 34.
6. 6Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46, [2007] 3 S.C.R. 373 (SCC); Whipple v. Economical, 2011 CarswellOnt 11739 (FSCO Appeal P10-00020, October 6, 2011). Intact and Roberts (FSCO Appeal P16-00009, March 15, 2017.)
7. 7R.S.O. 1990, c. H.8.