B.H. v. Primmum Insurance Company, 2019 CanLII 22205

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:

B. H.

Appellant(s)

and

Primmum Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Gus Triantafillopoulos, counsel

Shannon Kelly, counsel

For the Respondent:

Alexandra Wilkins, counsel

Jennifer Sweitzer, counsel

Held In person and in writing:

November 14 and 26, 2018

OVERVIEW

1B.H. (the “applicant”) was involved in an incident on October 17, 2017. He was parked in his vehicle, preparing to depart from a parking lot, when he got into a dispute with a third party. Upon exiting his vehicle, he got into a physical altercation with a man he contends assaulted him by pushing him against his car, where he suffered injuries. He applied for accident benefits to Primmum Insurance Company (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The parties disagree that the incident falls within the definition of an “accident” as defined by the Schedule.

2This is a preliminary issue hearing. If the applicant is unsuccessful at this hearing, he will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident.

ISSUE IN DISPUTE

3I have been asked to decide whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

4At the outset of the hearing the parties confirmed that the only issue to be decided was whether the applicant was involved in an “accident”. Despite this, the parties made submissions with respect to the applicant’s claim for an award under Ontario Regulation 664, R.R.O. 1990. Therefore, I will not be addressing this issue in this decision.

RESULT

5For the reasons that follow, the applicant was not involved in an “accident” as defined by section 3(1) of the Schedule. As a result, the applicant is not entitled to claim accident benefits under the Schedule.

BACKGROUND

6The applicant is the only one who testified about the incident on October 17, 2017. In short, that incident involved an altercation between the applicant and M.T., the manager of the applicant’s local gym, Goodlife Fitness. The respondent tried to serve M.T. with a summons to witness, but was unsuccessful. There were no other witnesses to the incident. As a result, the applicant’s version of the events is the only one with which I was presented.

7The applicant maintains that, on October 17, 2017, he had driven his car to Goodlife Fitness (“Goodlife”) to work out, and had parked his vehicle in the parking lot. He maintains that, after his workout, he sat in his vehicle in the parking lot for 15 to 20 minutes, resting. The applicant testified that his keys were in the ignition, the engine was running, the heat was on, and he was listening to music, when he noticed M.T. taking pictures of his vehicle.

8The applicant lowered his window to ask M.T. what he was doing. M.T. told him that he was taking pictures to make sure that the applicant was a gym member and legally allowed to park there. The applicant verbally challenged M.T., as, in his view, M.T. knew that he was a gym member given that they had met on previous occasions. In response, M.T. walked closer (three steps away) to the applicant’s vehicle and swore at him.

9The applicant maintained that he could not drive away because M.T. stood too close, and he was afraid that he would hit him with his vehicle. The applicant opened his door and stood up and a verbal argument ensued, with both men swearing at each other. The applicant went to get back into his car and M.T. then blocked the applicant from being able to close his door by placing his leg in-between the open door and the car’s body. The applicant was unable to close his door, so he stood up to close his door, at which point M.T. pushed him into his vehicle, causing his back, left arm and elbow, and right leg to hit the vehicle.

10The applicant and M.T. then got into a fist fight approximately 10 feet away from the applicant’s vehicle. The applicant testified that the men hit each other two-to-four times in the head. The applicant alleged that the final blow was dealt by M.T., which resulted in him fainting, and falling to the ground onto his left elbow. He woke up with M.T. on top of him staring at him. At that point, M.T. got up and went back into the gym.

11Both men immediately called 911, complaining that they had both been assaulted by the other. Police and paramedics attended the scene and took statements. The police classified the incident as a “consensual fight” and no charges were laid. The applicant declined medical care from the paramedics and drove himself home. The applicant maintains that his wife later drove him to the hospital.

12The applicant contends that he sustained serious injuries as a result of M.T. pushing him into his vehicle. A disability certificate (OCF-3) dated November 16, 2017 prepared by Dr. Kevin Rod, physician, listed the following accident related impairments: multiple fracture of upper end of radius, sprain and strain of shoulder girdle, other specified injuries of shoulder and upper arm and other unspecified injuries of wrist and hand.¹

ANALYSIS

13As explained below, I find that the applicant was not involved in an “accident” within the meaning of the Schedule and, thus, is not entitled to accident benefits.

14Section 3(1) of the Schedule provides the following definition of an “accident”:

“accident” means 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.

15The applicant bears the onus of demonstrating that the use or operation of a vehicle directly caused his injuries.

16In order for the applicant to have been involved in an accident, the Court of Appeal has set out the following two-part test, in which both requirements must be satisfied:²

(i) Purpose test: Did the incident arise out of the use or operation of an automobile?

(ii) Causation test: Did the use or operation of an automobile directly cause the impairment?

17The parties disagreed with respect to whether the incident meets both the purpose and causation tests.

(i) Purpose test: Did the incident arise out of the use or operation of an automobile?

18The applicant argued that the incident of October 17, 2017 meets the purpose test since driving to Goodlife and sitting in his vehicle afterwards with the engine on preparing to depart constitutes a regular activity to which automobiles are put. Further, he argues the use and operation of his vehicle was part of an unbroken chain of events that ultimately led to the incident.

19On the other hand, the respondent argued that the incident was not “directly caused” by the use or operation of the applicant’s vehicle. Simply put, it was an assault which cannot be considered to be part of the normal use or operation of an automobile. Further, the respondent asserts that it was not the applicant’s vehicle that “directly” caused his injury but the assault. Therefore, the incident does not satisfy either the purpose or causation test.

20For the reasons that follow, I agree with the respondent.

21First, I agree that sitting in a parked car with the keys in the ignition, preparing to depart from a location, is considered the regular use and operation of an automobile. However, I find that the applicant’s regular use of an automobile stopped when he opened his car door to exit to engage in a dispute with M.T. The applicant testified that he opened his car door to “sort things out” with M.T., when things had already become hostile with M.T. swearing at him. Both men proceeded to yell and swear at each other. This led to M.T. pushing the applicant into his car, after which a fist fight occurred 10 feet away from the applicant’s vehicle, which, in my opinion, interrupted what would be considered the regular use of an automobile.

22Second, the York Regional Police officers who attended the scene classified the incident as a consensual fight and no charges were laid.³ Both men called 911 following the incident, complaining that they had been assaulted by the other.⁴ Police Constable Payanda testified that he and his partner attended the location shortly after the incident, interviewed both parties, and reviewed the gym’s surveillance footage. The applicant did not report to Constable Payanda that he was pushed into his vehicle by M.T. Nor did his partner, Constable Mole, who reviewed the surveillance footage, make a reference to the applicant making contact with the vehicle in his notes.

23Much was made by the respondent by the fact that the applicant and Constable Payanda reported the incident as an assault, verses an accident, in the various exhibits submitted. I did not place much weight on this as neither are experts in insurance law and do not understand the complex legal test for an incident to qualify as an accident pursuant to the Schedule. Regardless, I agree with the respondent that, even if the applicant made contact with his vehicle, resulting in injury, it does not automatically qualify as an accident which is supported by the case law.

24I found the case law submitted by the respondent compelling.⁵ The case law supports the proposition that making contact with a vehicle is not a mandatory requirement for an incident to qualify as an “accident”. For example, a pedestrian injuring themselves while trying to avoid being hit by a vehicle could meet the definition of “accident.”⁶ However, the case law involving assault cases near or in vehicles upholds that, even where an individual makes physical contact with a vehicle as a result of an assault, the incident does not necessarily meet the purpose test as the assault was an intervening act.⁷

25Finally, I find the authorities submitted by the applicant distinguishable from the present case. For example, the applicant relied on the Divisional Court’s decision in North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143.⁸ I agree with the respondent that the facts raised in North Waterloo differ from the present case. In North Waterloo, the insured was a taxi driver who was assaulted but at the same time slipped on ice while opening a sliding car door, propelling him into a ditch. The applicant argues that his case is identical, as he too got out of his vehicle while it was running to close the car door in an attempt to leave.

26The arbitrator in North Waterloo determined that the incident satisfied the purpose test as it was an unbroken series of events which led to the insured’s injuries. The arbitrator could not isolate the assault from the opening of the sliding car door, and slipping on ice and determined that the latter was part of the ordinary and well-known activities to which automobiles are put.⁹ In the present case, the applicant did not slip on ice while opening a sliding car door. Instead, he engaged in a verbal dispute which turned into a physical altercation which unfortunately led to him sustaining an injury. I find that an assault or physical altercation is not part of what would be considered the normal use or risk associated with operating an automobile.

27If I am wrong in applying the purpose test, I do not find that the incident meets part two of the causation test.

(ii) Causation test: Did the use or operation of an automobile directly cause the impairment?

28The Court of Appeal narrowed the causation test to include the following considerations:

“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?”¹⁰

29I do not find that the applicant has satisfied that this incident meets the causation test. The courts have developed the following three-pronged analysis to determine causation: 1) the “but for” consideration, 2) “was there an intervening act,” and 3) was the vehicle the dominant feature?

(i) The But For Consideration

30The “but for” consideration is used as a screening measure to eliminate irrelevant scenarios and, on its own, does not determine causation. I agree with the applicant that this incident passes this screening measure: “but for” the applicant parking his vehicle in the Goodlife parking lot, the incident and any injuries he sustained would not have occurred. The applicant and M.T. would not have had an altercation which led to the applicant being injured if the applicant was not sitting in his parked car in Goodlife’s parking lot preparing to leave.

(ii) Was there an Intervening Act?

31However, I find that the assault or physical altercation was an intervening act and broke the chain of causation leading to the applicants injury. Based on the evidence before me, I am unable to conclude that the vehicle contributed to the applicants impairment. I find the assault was an intervening act, which resulted in the applicant’s injuries. The automobile was simply the location of the fight regardless of whether the applicant fell against it during the altercation.

32The applicant contends that the incident has caused him psychological issues. Specifically, he claims that he was fearful of running over M.T., which is why he opened his car door in the first place. Further, he felt trapped as M.T. put his foot in the door preventing him from leaving. The applicant contends that his fear of being trapped and running over M.T. led to him sustaining a psychological impairment. The applicant relied on Downer v. The Personal Insurance Company 2012 ONCA 302¹¹ in support of his position. In that case, the insured was robbed and assaulted in a gas station parking lot by four men. In leaving the scene, the insured thought that he ran over one of the assailants, causing him psychological distress. The Court did not find that the incident qualified as an accident but ordered that the matter go to trial on a potential psychological component as the court found running someone over qualified as the normal use and operation of a motor vehicle.¹²

33I do not find the Downer case relevant. In the present case, the applicant felt that M.T. was standing too close to his car. He did not think he ran M.T. over. The applicant maintains that, similar to Downer, he suffers from a psychological impairment as a result of M.T. standing too close to his vehicle and fearing that he might run him over. While I can understand that the incident of October 17, 2017 would have been upsetting for the applicant, I am not convinced that he suffers from any psychological impairment as a result. The applicant asks that I take his self-reports as evidence that this this incident caused him to suffer a psychological impairment. No medical evidence was submitted to support that he suffers from any psychological impairment as a result of the incident. Further, I do not find the fact scenario in the present case similar to the one in Downer. Someone standing too close to your vehicle is not the same as thinking you ran someone over.

34In addition, the applicant argues that the incident resulted in him fracturing his left arm. The applicant testified, that following the incident, his wife took him to [the Hospital], where x-rays revealed that his elbow was fractured in three places. The respondent objected to the applicant providing evidence about his hospital attendance as the hospital records were never disclosed to the respondent. I allowed the applicant’s testimony and indicated I would assign it the appropriate weight. I have accorded the applicant’s testimony with respect to his hospital visit little weight as he did not submit an x-ray or any hospital records as evidence during this hearing. In fact, the only medical evidence submitted at this hearing was the OCF-3 submitted by the respondent. On its own, I do not find the OCF-3 convincing evidence that the applicant sustained an injury.

35In addition, I am unable to distinguish between the injuries sustained by the applicant when: a) he allegedly was pushed into the door frame of his vehicle; from b) any injury he might have sustained as a result of the fist fight which took place 10 feet away from the vehicle where the applicant fainted falling to the ground onto his left arm. I am unable to conclude that the applicant fractured his arm when making contact with his vehicle verses when he fell to the ground. However, in my opinion, even if the applicant fractured his left arm when M.T. pushed him into his vehicle, this does not satisfy the causation test as M.T. was the force that pushed the applicant into his car – an intervening act.

(iii) Dominant Feature

36The applicant argues that the assault was not the dominant feature of the incident but, rather, it was the applicant’s use and operation of the motor vehicle. The applicant got out of his car so he could close the door and leave or escape the situation. M.T. then blocked him from closing his door which caused M.T. to shove the applicant.

37I am unable to conclude, based on the facts and evidence before me, that the applicant’s vehicle was the dominant feature of the incident. No medical reports were submitted to confirm that the applicant’s injuries were caused by him making contact with the vehicle or that the vehicle directly caused his injuries absent an intervening act. I find the assault or physical altercation was the dominant feature of the incident, not the applicant’s vehicle.

38For all of the above reasons, I find this incident does not meet the definition of “accident” pursuant to the Schedule.

CONCLUSION

39For the above reasons, the application is dismissed.

Original Release Date: February 14, 2019

Footnotes

1. 1Exhibit 4, Disability Certificate dated November 16, 2017, Respondent’s Document Brief, Tab 3.
2. 2Chisholm 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.
3. 3Exhibit 2: Police Report, pg 7, Respondent’s Document Brief, page 9
4. 4Exhibit 1: Video Recordings of 911 calls from the applicant and MT, Respondent’s Document Brief, Tab 13.
5. 5Brar v. ING Insurance Co. of Canada [2008] OFSCD No. 68; Clarke v. TTC Insurance Co. 2013 OFSCD No. 60; Dziuba v. TD General Insurance Company 2017 FSCO No. 5606; Irving v. CGU(2004)FSCO No. 1474; Lafond v. Allstate Insurance Company of Canada 2006 CarswellOnt 7542; and Martin v. 2064324 Ontario Inc 2013 ONCA 19.
6. 6Dziuba, pg 6
7. 7Brar, pg 3; Clarke, pg 4; Lafond, pg 4; and Martin, pg 13.
8. 8North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143.
9. 9North Waterloo, para 39.
10. 10Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 CarswellOnt 3426 (Ont. C.A.)
11. 11Downer v. The Personal Insurance Company 2012 ONCA 302.
12. 12Downer, pg 10.