Tribunal File Number: 18-010935/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:
I. W.
Applicant
and
Coachman Insurance Company
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Michelle Moraes, Paralegal
For the Respondent: Jason H. Goodman, Counsel
HEARD: In-Person: September 16, 2019
OVERVIEW
1The applicant (“I.W.”) was involved in an incident on October 23, 2016. He was working as [a driver] giving a ride to four passengers. As a result of a miscommunication, once stopped at a destination, I.W.’s phone was taken from him and thrown out the window. I.W. exited his vehicle to retrieve his phone, and contends that he was assaulted by the riders, which caused him to suffer injuries.
2I.W. applied for accident benefits to the respondent, Coachman Insurance Company (“Coachman”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The question I have to decide is: was the attack on I.W. an “accident” as defined in the Schedule.
3Since this is a preliminary issue hearing, if I.W. is unsuccessful at this stage, he will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident.
PRELIMINARY ISSUE
4Pursuant to the Order of Adjudicator Johal dated May 2, 2019, the following preliminary issue is in dispute:
a. Do I.W.’s injuries sustained as a result of an incident that occurred on October 23, 2016 meet the definition of an “accident” as defined under the Schedule?
b. Is Coachman entitled to costs in accordance with Rule 19 of the Tribunal’s Common Rules of Practice and Procedure?
RESULT
5For the reasons that follow, I find I.W. was not involved in an “accident” as defined by section 3(1) of the Schedule. As a result, I.W. is not entitled to claim accident benefits under the Schedule.
6Coachman is not entitled to costs in accordance with Rule 19 of the Tribunal’s Common Rules of Practice and Procedure.
BACKGROUND
7I.W. is the only one who testified about the incident on October 23, 2016. There was another witness to the incident, however, no other witnesses were presented by either party. As such, I.W.’s version of the events is the only one presented to me.
8I.W. testified that on October 23, 2016, while working as [a driver], he picked up four riders. At the time of pick up, the riders did not enter a destination into the application, and asked I.W. to enter the address into his personal GPS. The address brought up two results, I.W. selected the wrong address.
9During the trip, as a result of the wrong address being selected, the riders became aggressive. I.W. offered to drive the riders to the correct location free of charge. The riders agreed, and provided the correct destination address into their personal GPS. I.W. missed an exit, as the riders were asleep. When the riders awoke, they were angry and instructed I.W. to pull over into the parking lot of a Best Western hotel.
10Once I.W. pulled over, his phone was taken and thrown out the window. I.W. got out of the vehicle to retrieve his phone, and when he bent over to pick it up, one of the riders punched him, causing him to fall over. Once on the ground, I.W. submits, the four riders began assaulting him.
11A witness at the scene called the police and the four riders tried to run away. I.W. noticed the four riders in a taxi and notified the police who pulled over the taxi and arrested two of the riders.1
12I.W. submits that all of his injuries were sustained as a result of being assaulted by the riders. At the Examination Under Oath (“EUO”)2, I.W. testified that he sustained “a broken nose (requiring surgery), a twisted arm, bruised left eye, pain in the back of his head and emotional problems”.3
LAW
13For the reasons that follow, I find that I.W. was not involved in an “accident” within the meaning of the Schedule and is therefore not entitled to accident benefits.
14Section 3 (1) of the Schedule provides the following definition of an “accident”:
a. “accident” means an incident in which the use or operation of an automobile directly causes an impairment ...
15The onus is on I.W. to show that the use or operation of the vehicle directly caused his injuries.
ANALYSIS
16The Court of Appeal has set out a two-part test in order to establish whether an insured was involved in an “accident”, both parts of the test must be established:4
a. Purpose test: Did the incident arise out of the use or operation of an automobile?
b. Causation test: Did the use or operation of an automobile directly cause the impairment?
17The parties agreed that the purpose test was met in the subject proceeding. Therefore, I am asked to determine if the causation test has been satisfied.
Causation test: Did the use or operation of an automobile directly cause I.W.’s injuries?
18The Court of Appeal has set out the criteria in order to determine causation with the following:
“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?”5
19I find that I.W. has not met his burden to establish that this incident meets the criteria set out in the causation test. The assault took place after I.W. reached the last destination of the four riders and exited the vehicle. Therefore, the use or operation of the vehicle had ended at this point.
20There was no evidence from I.W. that there was any further intent to continue with the use or operation of the vehicle with the four riders once at the Best Western parking lot. In the subject proceeding, I find that the end of the use or operation of the vehicle, as well as the assault that took place outside of the vehicle, does not satisfy the causation test.
21The courts have developed a three-part analysis to determine causation:
a. The “but for” consideration;
b. Was there an “intervening act”; and
c. Was the vehicle the dominant feature?
A. The “but for” consideration
22The “but for” consideration is used as a “process of elimination” measure to eliminate scenarios that are not relevant. As a stand-alone criterion, the “but for” consideration does not determine causation. I agree with I.W. that the subject incident satisfies this measure; “but for” I.W. driving the four riders, the incident and any injuries he sustained would not have occurred. I.W. would not have been assaulted by the four riders if he had not picked them up as [a driver].
B. Was there an intervening act?
23I find the assault was an intervening act that broke the chain of causation which lead to I.W.’s injuries. Based on the evidence, I am unable to determine that the use or operation of the vehicle contributed to I.W.’s injuries. I find the assault was an intervening act, which resulted in I.W.’s injuries. Although the vehicle was in the area of where the assault took place, the assault did not occur through the normal use or operation of the vehicle.
24I.W. contends that the operation of the vehicle was the dominant feature of the incident because if he had not been operating the vehicle, he would not have been assaulted and injured. I.W. relied on L.L. v. Intact Insurance Company6 in support of his position that there does not need to be one, single direct cause of injury/impairment, and that the direct cause does not need to be the most immediate cause. In L.L., the applicant sustained injuries as a result of an assault in which the door of the vehicle was used. Adjudicator Flude concluded that “part of the assault that is conceded to have been an accident was a direct cause, perhaps not the only cause, of those impairments”.
25I do not find the L.L. case relevant. In the L.L. case, the respondent conceded that the action involving the vehicle7 constituted an accident. In the present case, I.W. was not assaulted with any part of the vehicle, nor did Coachman agree that any part of the incident met the definition of an ‘accident’. Although I.W. testified at the EUO that he was struck by the front seat passenger while in the vehicle, the injuries sustained, occurred outside the vehicle in the Best Western parking lot. Exiting the car and the subsequent assault taking place, therefore breaks the chain of causation, and is an intervening act.
C. Dominant feature
26I.W. does not specifically address the dominant feature part of the criteria. I.W. argues that it was the use and operation of the motor vehicle that satisfies the causation and purpose tests. I disagree. As was set out in Chisholm and Greenhalgh, “It is not enough to show that an automobile was somehow involved in the incident giving rise to the injury,” the Court of Appeal noted. “Rather, the use or operation of the automobile must have directly caused the injury.”8 The dominant feature was the assault that took place. At no time was the assault a part of the ordinary use or operation of a motor vehicle, or I.W.’s injuries directly caused by the use or operation of the vehicle.
27I find that the evidence does not persuade me that I.W.’s vehicle was the dominant feature of the subject incident. There is no medical evidence submitted that establish that I.W.’s injuries were caused by the normal use or operation of the vehicle, outside of any intervening act. I find the assault was the dominant feature of the incident, not I.W.’s vehicle.
COSTS
28Rule 19.1 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”.
29Coachman requested costs in this matter. For the reasons that follow, I find costs are not appropriate in this proceeding. The basis of the request for costs flows from I.W. seeking an adjournment of the hearing in May 2019. As detailed below, I.W.’s previous legal representative kept Coachman reasonably informed of his need for an adjournment. Further, the adjournment was not prejudicial to Coachman.
30Coachman submits that the previous representative for I.W. acted unreasonably during the course of this proceeding. Coachman contends that this preliminary hearing was scheduled (at a case conference on March 21, 2019) to proceed on May 2, 2019, and due to requests made by the previous representative to adjourn the hearing, I.W.’s previous representative acted unreasonably.
31I.W. submits that on April 24, 2019, through email correspondence, the legal representative advised the Tribunal and Coachman that there was a delay that documents to be relied on were not yet received from third parties. Due to the delay, I.W.’s legal representative requested an adjournment on April 26, 2019.
32On April 27, 2019, I.W.’s legal representative requested three dates from Coachman, at which time the request was denied by Coachman. On May 1, 2019, I.W.’s legal representative advised the Tribunal and Coachman that due to health issues he was unable to attend the preliminary hearing. Another email was sent on May 2, 2019 again, that due to health problems he could not attend and there was no other representative available on to appear at the May 2, 2019 preliminary hearing.
33I.W.’s position is that reasonable steps were taken, and no costs should be awarded. I agree.
34Coachman did not discuss how it was prejudiced by the proceeding being adjourned to a different date that was agreeable for both parties. I find that neither party was inconvenienced by this proceeding being adjourned. Further, I find that, as Coachman was the moving party in this matter, a concession made to allow I.W. to obtain necessary documents in support of his position is not an unreasonable request.
35Parties in a proceeding are not always able to obtain necessary documents in a timely fashion, particularly when a hearing is scheduled just over a month after a case conference. As Coachman raised the preliminary issue, it is reasonable to presume that the responding party would require a reasonable amount of time to obtain documents to be relied on at the hearing.
36For these reasons, I find that the previous legal representative’s actions were not unreasonable, therefore Coachman is not entitled to costs.
CONCLUSION
37For the reasons above, the application is dismissed.
38Coachman is not entitled to costs.
Released: November 25, 2019
__________________________
Derek Grant
Adjudicator
Footnotes
- Police Incident Report No. 16-234177
- Examination Under Oath transcript of I.W. dated February 3, 2017
- Ibid page 51
- Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), 2002 Carswell Ont 2652, [2002] O.J. No.3135. See also Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426, [2004] O.J. No 3485.
- Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426 (Ont. C.A.)
- L.L. v. Intact Insurance Company, 2019 CanLii 18331 (ON LAT)
- Where the applicant was struck with the door of the vehicle, but being punched in the face was not conceded to by the insurer as meeting the definition of an ’accident’.
- Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), 2002 Carswell Ont 2652, [2002] O.J. No.3135. See also Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426, [2004] O.J. No 3485.