M.S. v. Certas Home and Auto Insurance Company, 2018 CanLII 140343

Tribunal File Number: 17-002922/AABS

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

Between:

M.S.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

For the Applicant: Samia Alam, Counsel

For the Respondent: Hooman Zadegan, Counsel

HEARD in Writing on October 24, 2017

OVERVIEW

1This is an Application to the Licence Appeal Tribunal (the “Tribunal”) to determine an insured person’s entitlement to statutory accident benefits.

2MS (“the applicant”) was involved in an incident on April 11, 2014 (“the incident”). The applicant was a taxi driver who was attacked by a passenger after accompanying him out of the cab and into a walkway to collect his fare.

3The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'') and commenced his appeal when his claim was denied by Certas (“the respondent”).

4The respondent denied the applicant’s claim, asserting that the incident was not an “accident” within the meaning prescribed by the Schedule.

5If the respondent is correct, then:

a. The applicant’s injuries and his claim for benefits are not governed by the

Schedule; and

b. I must dismiss the applicant’s claim.

6If I find that the respondent is incorrect, then I will order that the matter proceed to a case conference to discuss settlement of the applicant’s claims, and if necessary to determine the details of a hearing in this matter.

PRELIMINARY ISSUE

7Did the incident for which benefits are claimed constitute an “accident” as defined by section 3 of the Schedule on July 16, 2013?

FINDINGS

8The incident in this case is not an accident as defined by the Schedule.

9The applicant’s appeal is denied.

REASONS

Background

10The facts of the incident in dispute are agreed upon by the parties.

i. MS was the driver of a rented taxi cab when the incident occurred.

ii. MS picked up three passengers and drove them to their destination, a townhouse complex.

iii. All but one of the passengers left the taxi and walked away from it. One of them, (“X”) stepped out and indicated to MS that he had no money to pay the taxi fare. X invited MS to follow him home to collect his fare.

iv. MS followed X into a laneway. X then attacked MS, beating him and leaving him on the ground.

v. The nature and extent of MS’s injuries are uncontested, as is the fact that they were inflicted by X and not caused by anything else.

Definition of “Accident” in the Schedule

11Section 2(1) of the Schedule prescribes that the benefits it sets out “shall be provided […] in respect of accidents ...”

12Section 3(1) of the Schedule defines “accident” as an “incident in which the use of an automobile directly causes an impairment. […]”

13The Schedule does not say that the automobile must be the exclusive cause of the injury, only that it must be a direct cause.

14The Court of Appeal in Greenhalgh v. ING Halifax Insurance Co. 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 set out a two-part test for determining whether an incident constitutes an “accident” under the Schedule; in order to establish coverage, the claimant must satisfy both:

i. the “purpose test”: did the incident arise out of the ordinary and well-known activities for which automobiles are used?, and

ii. the “causation test”:

a. did such use or operation of an automobile directly cause the impairment?

b. 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"?²

15I find that the purpose test has not been met in this case. The ordinary use or operation of an automobile, specifically a taxi, includes picking up, transporting and dropping off paying passengers, and it is uncontested that this is what MS was engaged in when the incident occurred. However, I am not persuaded that MS’s exiting his cab and walking some distance away from it to collect a fare from a passenger falls within the definition of ordinary use and operation of a vehicle.

16MS’s affidavit to the effect that leaving his cab to collect a fare is ordinary use and operation of a taxi vehicle is contradicted by statements made publicly by a fellow taxi driver in his community shortly after the incident, reported by local media and submitted in evidence by Certas, that taxi drivers are cautioned never to leave their cars to collect fares, even if it means losing money. The uncontested circumstances of MS’s act, and the disinterested commentary by a fellow taxi driver in the same community lead me to conclude that this is not “ordinary use and operation” of MS’s vehicle.

17Questions raised by the respondent about MS exiting the taxi and moving away from it to collect payment before being assaulted raise, in my view, questions of “causation” which should be addressed.

Causation Test

18To determine causation, I will follow the courts and frame the direct causation test as follows:

i. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or 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?

ii. “Dominant feature”: was the use or operation of the automobile was the primary cause of the impairment?³

iii. It is not enough to show that an automobile was involved in the incident giving rise to the impairment, rather the use or operation of the automobile must have directly caused the injury.⁴

iv. An intervening act may break the chain of causation and disentitled the applicant to benefits unless the intervening act is considered a normal risk created by the use and operation of a motor vehicle.⁵

Was the automobile in this incident a direct cause of the applicant’s injuries?

19The respondent contends that the applicant’s injury was caused by an assault. It further argues that the incident is not an “accident” because:

i. The use and operation of an automobile is not the dominant feature in MS’s injuries: an assault at some distance from the automobile is.

ii. Exiting a vehicle late at night to follow an unknown male into an unfamiliar walkway was not a normal risk associated with the ordinary use and operation of an automobile. It can be characterized as a breach of a “cardinal safety rule”. It was in fact, along with the assault itself, an intervening event that was the actual cause of MS’s injuries.

iii. Because of points 1-2 above, the nexus between the operation of his vehicle and the injuries he sustained is too remote to establish direct causation as required.

20The respondent also cites the Court of Appeal in asserting that “an argument that an insurer was reasonably expected to provide indemnification for injuries arising from assaults that only incidentally involved an insured’s vehicle stretches the coverage that was agreed to.”⁶

21The applicant’s case rests on his assertion that:

i. Leaving his taxi to go a short distance to collect a fare was an act and a normal risk associated with the ordinary use and operation of his vehicle per Chisolm⁷.

ii. His use and operation of the taxi was still underway when his injuries were sustained: the vehicle was merely stopped – engine on and hazard lights on -- for the purpose of enabling him to collect his fare, which is an integral part of operating a taxi, and he was intending to continue his journey once his fare was collected.

22The applicant submits a large number of cases in which incidents, including incidents of assault, were found to be an “accident” for insurance purposes. Most of these cases were unpersuasive to me because they were distinguishable from this case. For example:

i. In North Waterloo and Samad⁸ (“Samad”) the taxi driver in that case slipped while exiting his cab to close a door left open by a passenger – an act required for him to continue operating the vehicle. The taxi driver in Samad was also assaulted -- shoved, and the decision is expressly clear that the assault could not be ruled a dominant feature or cause of the applicant’s injuries. The case fell within the scope of well-established case law on slipping while stepping outside a vehicle to operate it, the applicant’s injuries were held to be accidental.

ii. In cases such as Salamone and Aviva⁹, Downer¹⁰ and Dittman¹¹, the automobiles in each case were inextricably linked to the injuries sustained by the applicant.¹² In Downer, the assault on the applicant was expressly ruled to be “not an accident”.

iii. The case law is settled that an assault committed on or by a driver or occupant of an automobile is not an “accident” as defined in the Schedule unless the automobile was the instrument of injury (it struck the victim) or the assault caused an automobile to lose control resulting in injury to the victim (e.g. violent swerving, a crash or a collision).¹³

23I find that that the incident was not an accident within the meaning of the

Schedule, for the following reasons:

i. Unlike most of the cases cited by MS himself, neither his vehicle itself nor any action associated with operating it was a factor in the injuries sustained by the applicant. This persuades me that the chain of causation was broken.

ii. My reading of the case law submitted by the parties is that an "incident" may involve a train of events that include both assault and accident, but that if specific acts within an incident are distinct and severable, acts of assault are not accidents.¹⁴ I find that the assault on MS was a distinct and severable act from the operation of the taxi, and hence was not an accident.

iii. The submissions included no examples of cases in which an assault itself was ruled an accident. My application of the case law I refer to in paragraph 21 above leads me to conclude that the assault in this case does not meet the criteria for being ruled an accident.

COSTS

24Rule 19.1¹⁵ permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

25MS requests “leave to make submissions with respect to his expenses in this hearing”. I interpret this to mean “costs”.

26If MS wishes to pursue costs in this matter, be must make his submissions to the Tribunal within 7 business days of the date of this decision. The respondent Certas will then have 7 business days to file its response. A final reply by the applicant, if he chooses to make one, must be submitted within 3 business days.

27Submissions will be limited to five pages, with text in 12-point type and double spaced. The Reply if any must be limited to three pages with the same standards for text. The page limits are exclusive of evidence or case law filed in support of argument.

CONCLUSIONS

28The incident in this case is not an accident as defined by the Schedule.

29The applicant’s appeal is denied.

30The Tribunal will hear submissions on costs.

Released: April 27, 2018

___________________________

Christopher A. Ferguson

Adjudicator

Footnotes

1. 1O.Reg. 34/10
2. 2Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (ONCA), para. 11, submitted by the respondent.
3. 3ibid, para.36, – see also Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135, submitted by both parties
4. 4Downer v. Personal Insurance Company, 2012 ONCA 302 para.39, submitted by the applicant
5. 5Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (ONCA), para. 46, submitted by the respondent.
6. 6Martin v. 2064324 Ontario Inc. 2013 ONCA 19, [2013] O.J. No. 172 (Ont. C.A.)
7. 7Chisholm v. Liberty Mutual Group 2002 CanLII 45020 (ON CA), [2002] O.J. No. 3135
8. 8North Waterloo Farmers Mutual Insurance Co. v Samad, (FSCO Appeal P16-00037) March 7, 2017
9. 9Salamone and Aviva Canada Inc., (FSCO Appeal P15-00072) June 16, 2016
10. 10Downer v. Personal Insurance Company, 2012 ONCA 302 para.39, submitted by the applicant
11. 11Dittmann v. Aviva Insurance Company of Canada, 2017 ONCA 617
12. 12Salamone had a heart attack behind the wheel and flipped into a ditch -- EMS was delayed by damage to his car in rescuing him, which contributed to his injuries, Dittman was in her car and the court said that the safety harness impeded her attempt to avoid injury, Downer was assaulted – ruled not an accident – but unintentionally struck an assailant while escaping and his psychological trauma from hitting the assailant was deemed an accidental injury.
13. 13CGU Insurance Company and Irving (2004, FSCO Appeal P03-00022) discussed in North Waterloo and Samad, see footnote 4 above, at page 5
14. 14Citadel Insurance Co. v. Vytlingam and Insurance Bureau of Canada [2007] 3 S.C.R. cited in North Waterloo and Samad, see footnote 4 above.
15. 15All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)