L. L. v. Intact Insurance Company, 2019 CanLII 18331

Tribunal File Number: 17-003125/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:

L. L.

Applicant

and

Intact Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: D. Gregory Flude

APPEARANCES:

For the Applicant: Joshua Gautreau, counsel

For the Respondent: Danielle Malone, counsel

HEARD in Writing: September 14, 2017

REASONS FOR DECISION AND ORDER

1The applicant was injured in an incident on November 25, 2014 when a motorist deliberately hit her with the door of his parked car causing bruising to her arm and knee. The motorist then got out of his car and violently struck her several times. She applied to the respondent for statutory accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). The respondent takes the position that the assailant’s actions after he got out of his car were not an “accident” as that term is used in the Schedule, with the result that the applicant is not entitled to benefits.

2Following a case conference, the parties agreed to a preliminary issue hearing on the question of whether the incident was an accident. At this stage in the proceeding it is unnecessary to delineate the actual benefits the applicant is seeking since the “accident” question acts as a threshold. If the incident meets the definition of an accident, the matter can proceed to a consideration of the applicant’s entitlement to specific benefits. If the incident is not an accident, then the proceeding is at an end.

3I have concluded that the incident was an accident as that term is defined in the Schedule. In arriving at this conclusion, I have taken into account the fact that the respondent concedes that the assault involving the car door was an accident and has paid whatever benefits it feels are due as a result. I find that the long-term impairments allegedly suffered by the applicant as a result of the assault cannot be neatly attributed to the second phase of the assault as the respondent has tried to do. The use or operation of a motor vehicle was a direct cause, but, I acknowledge perhaps not the only cause, of the applicant’s impairments. It is sufficient for the first phase of the assault to be a direct cause of the applicant’s impairments for it to attract the payment of benefits under the Schedule.

ISSUE

4The preliminary issue is set out in the case conference order as:

(i) Whether or not the incident of November 25, 2015 qualifies as an accident as defined by s.3 (1) of the Schedule.

5My difficulty with the issue as defined in the case conference order is that it fails to clarify the true nature of the dispute. The respondent considers the November 25 incident to be two separate incidents, the first phase of which meets the definition of accident as set out in s. 3(1) and the second phase of which does not. The applicant considers it as one incident, at least part of which involved the use or operation of a motor vehicle. What is actually in dispute is the question of whether the various impairments the applicant alleges² she sustained as a result of the incident fall within the no-fault compensation scheme set out in the Schedule. Section 3(1) defines an accident as an incident in which the use or operation of a motor vehicle directly caused impairment. To avoid confusion, the issue needs to be restated:

(i) Were the applicant’s impairments allegedly sustained on November 25, 2015 sustained as the result of an accident as that term is defined in s. 3(1) of the Schedule?

RESULT

6The impairments the applicant alleges she suffered in the incident on November 25, 2015 were sustained in an accident as defined by s. 3(1) of the Schedule.

ANALYSIS

7In analysing the issue, I will review the facts, set out the provisions of s. 3(1) of the Schedule and review the cases put to me by the parties.

Facts

8The applicant was working for a television production company filming on location. Part of her job was to keep three parking spaces free for the use of vehicles taking part in the filming. The parking spaces had been specifically assigned to the production company and were marked off. Two of the spaces were occupied by trucks carrying equipment for the filming. The third space was unoccupied but might be needed at any time. The applicant watched over the trucks and supervised the use of that third space.

9The assailant pulled into the parking space. The applicant informed him he could not park there and he told her he was not parking. He opened his door and bumped the applicant, lightly at first. He then banged his car door into the applicant harder a second time, injuring her knee and left forearm. The applicant began to back away but the assailant climbed out of his car, walked over to the applicant and punched her three times in the face. He only stopped when a passerby shouted at him. He was subsequently arrested and convicted of assault.

10Since the attack, the applicant has complained of panic attacks, fear of men, fear generally, anxiety, dizziness and memory issues. The respondent has taken the position that the soft tissue injuries to the applicant’s knee and forearm were sustained when she was bumped by the door and are covered under the Schedule. Those injuries have now resolved. It disputes whether the applicant’s more serious and long-term injuries are covered by the Schedule since, in its view, the second phase of the assault does not fall within the definition of the word accident in the Schedule.³

The Schedule

11Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of a motor vehicle “directly” causes an impairment…” “Impairment” is defined as “a loss or abnormality of a psychological, physiological or anatomical structure or function.” Applying the definitions to her claim, in order to succeed, the applicant must show that the physiological and psychological impairments of which she complains arose directly out of the use and operation of a motor vehicle.

12The applicant characterizes the whole chain of events as an accident. She questions how the respondent can accept that being assaulted by a car door can attract benefits under the Schedule, yet the continuation of the assault outside of the car cannot. She also questions how the respondent can decide that her more serious injuries are all attributable to the second phase of the assault but not the first.⁴

Definition of “accident” in the case law

13There is a long line of cases addressing the interpretation of the word “accident” in the Schedule. The courts have outlined the approach to be taken when considering the issue. In Greenhalgh v. ING Halifax Insurance Co.,⁵ Labrosse J.A. stated the factors to be taken into account as follows:

(i) Was the use or operation of the vehicle a cause of the injuries? There can be more than one direct cause of injury; and

(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?

14Cases since Greenhalgh have applied the factors it sets out and made findings largely driven by their facts.⁶ For the most part, the cases are clear that assault cannot be said to be part of the “ordinary course of things.” Unlike those cases, the significant difference on the current facts is that it is not an assault that initiates the chain of events leading to injury and impairment; it is an accident that triggers the events. By way of explanation, in Martin v. 2064324 Ontario Inc. (Freeze Nightclub), Mr. Martin was attacked late at night in a parking lot before he reached his car. His attackers forced him into the trunk, and then later forced him to drive the car, beating him as he did so. The court held that these actions were an assault and not an accident. As the attackers drove Mr. Martin’s car from the scene of the accident, they drove over his foot. The court concluded that this action, if it were not deliberate, could constitute an accident and sent the matter to trial on the issue.

15Similarly, in Downer v. Personal Insurance Co., Mr. Downer was attacked as he was at a gas station. The court held that the attack did not constitute an accident. The court did permit the action to continue on the question of whether Mr. Downer’s belief that he had run over one of his assailant’s while escaping in his car caused him psychological impairments. In both cases the bulk of the applicants’ injuries were sustained before the use of the vehicle became an issue. In this case, putting the respondent’s case at its highest by assuming two events made up the assault, the exact opposite course of action took place. The applicant was injured in an accident and then any impairments she sustained were worsened by what the respondent alleges was a separate assault.

16This accident-first chain of causation in the current case is important, because what the respondent argues is that a continuous attack can be neatly divided into two phases, only one of which caused long term damages. In Martin and Downer, the order in which the applicants’ injuries were sustained allowed the trier of fact to look at two distinct and discrete sources of impairment and determine the impact of each source. On the current facts, the ongoing nature of the assault from its inception which is conceded to have been an accident, to its conclusion, which is in dispute, is such that I cannot neatly divide this applicant’s impairments into separate categories.

17A review of the facts set out in the parties’ submissions does not support the respondent’s analysis. It is clear that the applicant was manifesting fear following being struck and injured by the car door as she was backing away from her attacker who then continued his attack, striking her on the face a number of times. A great many of her complaints relate to the feeling of fear. There is no evidence on this preliminary motion that all of the long term impairments suffered by the applicant were caused solely by the assailant’s actions outside of the vehicle.

18The applicant sustained injuries as a result of an assault, at least part of which is conceded by the respondent to fall within the definition of an accident. I do not accept the respondent’s submission that the action of the assailant in getting out of his car and striking the applicant in the face several times breaks the chain of causation. The whole process constitutes a continuous affront to the applicant’s well-being from which she appears to have emerged with psychological impairments. I conclude that 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. I need not decide if it was the sole cause for the applicant to be successful in this motion.

Conclusion

19In light of the above, I find that the use or operation of a motor vehicle was a direct cause of the impairments allegedly suffered by the applicant and the incident was an accident.

Footnotes

1. 1O. Reg. 34/10.
2. 2I have used the terms “alleges” and “allegedly” with respect to the impairments because at this point their nature and extent are still in dispute and will become the subject of a full hearing. For the purposes of this motion, I am not required to decide the scope of the applicant’s impairments and where I refer to the applicant’s injuries or impairments, it should be understood that I make no finding on whether the applicant actually sustained the injuries or impairments of which she complains. My focus is on the nature of the alleged injuries and impairments.
3. 3At paragraphs 9 and 10 of its submissions the respondent states: Intact has accepted the accident benefits claim but only as it specifically deals with injuries related to the contact with the car door. Claims for these impairments are being adjusted in accordance with the SABS. The Insurer has denied the Applicant's accident benefits claim for any impairment related to her being punched in the face. Intact maintains that this assault and resulting impairments do not meet the definition of "accident" under s. 3(1) of the SABS.
4. 4The applicant’s actual submission in this regard at paragraph 10 reads: Intact has accepted that the first part of the assault was an accident as it involved direct contact with the vehicle, and has accepted the accident benefits claim related to same. Despite accepting that the beginning of the assault qualifies as an accident as defined by section 3(1) of the SABS, Intact has both arbitrarily denied [L’s] accident benefits claim for any impairment related the remainder of the assault and arbitrarily attributed [L’s] psychological impairments to the second half of the altercation it claims does not qualify for benefits under the SABS.
5. 5Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338 C.A., [2004] O.J. No. 3485(QL).
6. 6See, for e.g., Brar v. ING Insurance Co. of Canada, [2008] O.F.S.C.D. No. 68; Elensky v. Royal & SunAlliance Insurance Company of Company (FSCO) POl-00030, May 13, 2002; Kumar and Coachman (FSCO) POl-00026, August 9, 2002; 2004 CanLII 11702 (ON SCDC), [2004] O.J. No. 2494; [2004] O.J. No. 4421, [2005] S.C.C.A. No. 195; Lafond v. Allstate Insurance Co. of Canada, [2006] O.J. No. 4755; Downer v. Personal Insurance Co. (2012) ONCA 302; Martin v. 2064324 Ontario Inc. (Freeze Nightclub), 2013 ONCA; Golizadeh v. Motor Vehicle Accident Claims Fund, (FSCO Arbitration) FSCO Al3-014896, April 10, 2015.