S. J. L. V. v. Certas Direct Insurance Company, 2018 CanLII 84053

Date: 2018-01-09

Tribunal File Number: 17-000796/AABS

Case Name: 17-000796 v Certas Direct Insurance Company

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:

S. J. L. V.

Applicant

and

Certas Direct Insurance Company

Respondent

HEARING DECISION

Adjudicator: D. Gregory Flude

Appearances:

For the Applicant Santino B. Lofranco, Counsel

For the Respondent Rupinder K. Tatla, Counsel

Heard in writing on: July 27, 2017

OVERVIEW:

1In 2015 the applicant was driving her car. Her boyfriend was a passenger. While stopped at a red light, an unidentified car pulled up beside the applicant and, in what appeared to be a targeted attack on the applicant’s boyfriend, the occupants of that car sprayed the applicant’s car with 18 bullets, some of which struck the applicant’s boyfriend and inflicted fatal injuries on him. The applicant was in fear of her own life and crouched down as low as she could while the shooting took place.

2Following the shooting, the applicant raced to where she believed the nearest hospital to be. She called 911 emergency services enroute and told them of her intentions. When she arrived she discovered that the hospital had been closed and no services were available. As she returned to her car emergency services arrived at her location, first a police car and then paramedics. The paramedics extracted the applicant’s boyfriend from her car and took him to the nearest hospital but he died from his injuries.

3Since the incident, the applicant has been suffering from sleep disturbance, flashbacks, irritability, feelings of helplessness, hopelessness, post-traumatic stress disorder, anxiety and depression. She has moved from the urban centre where the incident occurred to another urban centre because of fear for her own life and for the lives of her family and children.¹ It is her position that her psychological condition arises from her panic and distress as she attempted to save her boyfriend’s life by driving frantically to what she thought was the nearest hospital. She feels guilt at her failure to drive him to the correct location and possibly save his life. She seeks treatment for her psychological complaints arising out of the incident and takes the position that the treatment should be paid for by the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

4Under the Schedule, the applicant would be entitled to the benefits she claims if her psychological impairments were directly caused by a motor vehicle accident, which the Schedule defines as “an incident in which the use or operation of an automobile directly causes an impairment . . . [emphasis added].”

5The applicant concedes that the shooting incident itself is not an accident that would attract an award under Schedule.² Rather, she submits that her psychological impairments result from the horrors she suffered driving her dying boyfriend to the hospital and the guilt she suffers as a result not being able to save him because, in her view, she took him to a closed hospital. In her submission, these impairments arise directly out of the use and operation of a motor vehicle.

6The respondent takes the position that the incident is not an “accident” as that term is defined in the Schedule. In its view, the direct cause of the applicant’s psychological condition is the shooting and subsequent death of her boyfriend. These events are not directly related to the use of operation of a motor vehicle. The motor vehicle was simply the venue in which the events took place.

7In this preliminary issue hearing, I am asked to determine the question of whether the incident was an accident as defined in the Schedule. Having reviewed the applicant’s affidavit and the submissions of the parties, I find that the incident was not an accident as that term is defined in the Schedule. I accept the respondent’s submission that the motor vehicle was simply the venue of the incident and its use and operation did not directly caused the psychological impairments in question.

ANALYSIS

8The Court of Appeal in Greenhalgh v. ING Halifax Insurance Co.(Greenhalgh)³ set out the factors to be considered in determining if an incident is an accident:

(i) Was the use or operation of the vehicle a cause of the injuries?

(ii) 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?

9I am of the view that the applicant fails to satisfy both elements of the test. As stated above, the applicant does not argue that the assault itself forms the basis for an award of benefits under the Schedule. Rather she argues that her psychological impairment arises from her ongoing use or operation of the vehicle as a result of her failed attempt to drive her severely wounded boyfriend to hospital. She relies on the case of Liu v. Lombard General Insurance (Liu),⁴ a decision of Director’s Delegate Draper at the Financial Services Commission of Ontario, for the proposition that the use of a motor vehicle following an assault may attract an award of benefits.

10The facts of Liu are of some interest but of no assistance to the applicant. Mr. Liu was onboard a bus ready to leave Pacific Mall in Markham for Casino Rama. Just before the bus departed armed, masked men boarded the bus, sealed it, and forced the passengers to turn over valuables and credit cards. They forced the driver to drive the bus to a residential location, pistol-whipped the driver into a state of unconsciousness, and fled. Mr. Liu was asleep when the men boarded so one of them hit him about the head and chest before demanding his cash and other valuables. He sought compensation for his injuries under the Schedule. Lombard denied him benefits on the grounds that the incident was not an accident since Mr. Liu’s injuries were not directly caused by the use of operation of a vehicle.

11The applicant cites paragraph 17 of the Liu decision where the Director’s Delegate states: “The result could be different, however, if the use or operation of the automobile continues beyond the assault and the impairment is caused by that ongoing use or operation.” This statement is clearly not central to the Director’s Delegate’s decision, and it is clear from the balance of the paragraph that the Director’s Delegate’s statement contemplated an assault on the driver causing the bus to crash. It is the crash that would trigger the entitlement to benefits, a factor conspicuously absent on our facts.

12On the current facts, I have serious doubts if the applicant succeeds in meeting the causation test. The applicant’s argument is that it was the horror she encountered while driving her dying boyfriend to the hospital only to find the hospital had closed, that was the direct cause of her psychological impairment. The difficulty with this submission, in my mind, is that it asks me to find that the applicant sustained no or limited psychological trauma from the initial assault on her boyfriend and her current impairments result solely from the drive to the hospital. This is an unlikely outcome. Rather the applicant’s impairments arise out of a vicious and cowardly assault wherein the operation of a motor vehicle in the aftermath of the attack is completely incidental.

13It is interesting to note that, in taking this position, the applicant is reversing the application of the intervening act analysis. The test asks whether the use or operation of a motor vehicle directly causes impairment. It then asks was there an intervening act that can be said to lift the cause out of the normal and ordinary use of an automobile. The applicant asks me to find, not that there was an intervening act that divorced the cause from the normal operation of a motor vehicle, but that the intervening act was the operation of the motor vehicle. She concedes that the assault does not fall within the definition of “accident” but asserts that her action of driving the car to the closed hospital breaks the chain of causation commenced with the assault and converts it to an accident because she was distraught both while driving and as a consequence of futile attempt to take her boyfriend to hospital.

14In support of this argument, the applicant cites the decision of the Ontario Court of Appeal in Downer v. Personal Insurance Co.(Downer)⁵ In Downer, the insured was physically assaulted while at a gas station. He was able to put his car in gear and drive away, but in doing so, he formed the belief that he had run over one of his assailants. He claimed benefits under the 1996 Schedule for the physical injuries he had sustained as a result of the assault and the psychological injuries he sustained as a result of his belief that he had run over one of his assailants. The Court had no hesitation in finding that his physical injuries did not result from an accident but allowed the matter to proceed on the question of the psychological injuries. It held that the claim could proceed on the question of whether the psychological injuries were caused by an accident in running over an assailant.

15I accept the applicant’s submission that a psychological impairment arising from the operation of a motor vehicle after an assault may give rise to a successful claim under the Schedule. However, this would be an extremely rare occurrence, and I find that the applicant’s case is clearly distinguishable from Downer. In Downer, the plaintiff was under the belief that he had hit someone with his car. The court held that if proven, this fact could support a claim for benefits. Put simply, if Mr. Downer had, in fact, hit an assailant and sustained a psychological impairment as a result that collision would arise out of the ordinary use or operation of a vehicle and entitle Mr. Downer to benefits.

16In addressing the question of intervening acts, such acts have been defined as: “external forces which come into active operation later” to break a chain of events⁶. In the current case, even accepting the applicant’s use of the intervening act analysis, I can see no external forces that interrupt the chain of events from the moment the assault started to the arrival at the closed hospital. As the applicant stated, she went into survival mode following the assault and pressed the accelerator as hard as she could. She surveyed the situation and determined her boyfriend was hurt badly. She called 911 and drove to the nearest hospital. All of these actions form a direct causal chain commencing with the assault and there is no intervening external force to support a finding that the use or operation of an automobile caused the applicants impairments.

17The Court of Appeal directs me to determine what is the dominant feature of this incident? I note at paragraph 47 in Greenhalgh the Court of Appeal suggested an additional factor to consider when determining whether the use or operation of a motor vehicle was a cause of the injuries: “As stated earlier, in some cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the accident.” Notwithstanding that the applicant drove her automobile with fear and fury to seek medical assistance for her boyfriend, the dominant feature of this whole incident is the lethal assault, not the operation of the automobile.

17In applying the factors set out above to arrive at my decision, I find that they establish that the use of an automobile was not the direct cause of the impairments the applicant sustained, but merely ancillary. The incident was not an accident as defined in s. 3 (1) of the Schedule.

ORDER

18Having read the submissions of the parties and the affidavit of the applicant, I dismiss that applicant’s appeal to this Tribunal on the grounds that she was not involved in an accident.

Footnotes

1. 1I have kept the details of the incident deliberately vague to protect the applicant’s privacy. There is no dispute between the parties with respect to the underlying facts of the incident and the nature of it is sufficiently identified above to permit an understanding of the issue in dispute.
2. 2Applicant’ Submissions paragraph 33
3. 3Greenhalgh v. ING Halifax Insurance Co. 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338, [2004] O.J. No. 3485 at paragraph 36
4. 4Liu v. Lombard General Insurance Co. of Canada, 2004 CarswellOnt 6034, (FSCO Appeal Decision)
5. 5Downer v. Personal Insurance Co. 2012 CarswellOnt 5637, 2012 ONCA 302, [2012] I.L.R. I-5277, [2012] O.J. No. 2015, 110 O.R. (3d) 401, 11 O.R. (3d) 401, 216 A.C.W.S. (3d) 343, 291 O.A.C. 113, 32 M.V.R. (6th) 1, 8 C.C.L.I. (5th) 173
6. 6Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA), 2002 CarswellOnt 2652, [2002] O.J. No. 3135, 116 A.C.W.S. (3d) 264, 163 O.A.C., 129, 217 D.L.R. (4th) 145, 33 M.V.R. (4th) 165, 43 C.C.L.I. (3d) 58, 60 0.R. (3d) 776