H. A. v. Intact Insurance Company, 2019 CanLII 43895

Licence Appeal Tribunal

Date: 2019-04-18

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:

H. A.

Appellant(s)

and

Intact Insurance Company

Respondent

DECISION

PANEL: Sandeep Johal, Adjudicator

APPEARANCES:

For the Applicant: Andrea Baldy, Counsel

For the Respondent: Jocelyn Tatebe, Counsel

HEARD In Writing on: September 4, 2018

OVERVIEW

1On December 3, 2017, the applicant, an Uber driver, was assaulted while waiting in his car to pick up passengers. The applicant sustained injuries as a result of the attack and he sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'') .The applicant was denied benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUE IN DISPUTE

2The question to be determined in this written hearing is whether the applicant was involved in an “accident” as defined by section 3 of the Schedule.

RESULT

3The impairments the applicant is alleged to have suffered in the incident on December 3, 2017 were not as a result of an “accident” as defined by the Schedule. The applicant is therefore not entitled to accident benefits under the Schedule.

AGREED FACTS

4The parties submitted an Agreed Statement of Facts as part of the written submissions for this hearing. Without repeating the entire Agreed Statement of Facts I will provide a summary as follows.

5The applicant was an Uber taxi-driver who received a request for a passenger pick-up on the afternoon of December 3, 2017.

6He arrived at the pick-up location, parked his vehicle and waited for the passengers who ordered the pick-up, to arrive.

7The applicant waited two to three minutes before sending a text message to the passengers and a few minutes later a man appeared at the passenger side window staring at him. The applicant was under the impression that the person at the passenger window was trying to make sure that the applicant was the right Uber driver.

8The applicant was asked if he was the Uber driver and after confirming that he was, the man at the passenger side window started kicking the passenger side of the vehicle and yelling at the applicant. This person then told a second person who was at the rear of the vehicle that the applicant was the Uber driver.

9At this point the second person opened the driver’s side door, grabbed and pulled the applicant out of the vehicle forcefully and the applicant was further assaulted. After the assailants left, the applicant crawled back into the vehicle and a witness then called the police.

ANALYSIS

10Section 3 of the Schedule defines “accident” as follows:

“accident means an incident in which the use or operation of an automobile directly causes an impairment […]”

11The parties agree that the case law has established a two-part test to determine whether an incident constitutes an accident¹. These are:

a. the purpose test: did the incident arise out of the use or operation of a motor vehicle; and

b. the causation test: did the use or operation of a motor vehicle directly cause the impairment.

Did the incident arise out of the use or operation of a motor vehicle (the purpose test)?

12The applicant submitted that the Court of Appeal in Economical Mutual Insurance Company v. Caughy² held that, parking is an ordinary and well-known activity to which vehicles are put³ and that there is no “active use” requirement”⁴. In the present case, the applicant parked his vehicle and waited to pick up passengers.

13The respondent agrees that a taxi-driver or Uber driver sitting in their vehicle waiting to pick up passengers is an ordinary and well known activity to which taxi cabs and Uber drivers are put.

14As a result, I do not need to go into a detailed analysis of the purpose test. The applicant has satisfied the first part of the test to determine whether this was an “accident”.

15I turn now to the second part of the test, which is the causation test.

Causation Test

16In considering the causation test, there are three aspects to consider:

a. whether the incident would have occurred “but for” the use or operation of the motor vehicle;

b. whether there was an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the motor vehicle;

c. whether the use or operation of the motor vehicle was a dominant feature of the incident.

Would the incident have occurred “but for” the use or operation of the vehicle?

17I find that “but-for” the use or operation of the vehicle, the applicant would not have sustained his injuries.

18The applicant takes the position that “but for” the applicant driving his vehicle and attending at the pick-up location, he would not have sustained his injuries.

19The respondent submits that the applicant is purporting to have been assaulted directly as a result of being an Uber driver, however there is no evidence of the motivation for the assault and the assailants have not been convicted and no charges have been laid.

20Both parties agree that the “but for” test does not establish legal causation on its own.

21I agree with the applicant, “but for” the applicant’s use or operation of his vehicle which includes parking and waiting for passengers he would not have sustained his injuries. In my opinion, the applicant has satisfied the first part of the causation test. I will now turn to discuss the second factor of the causation test and whether there was an intervening cause.

Was there an intervening cause?

22The question is whether the assault was an intervening cause. The applicant submits that it is not and relies on a Financial Services Commission of Ontario (“FSCO”) decision, Wawanesa Mutual Insurance Company and Webb.⁵ In that case which involved a slip and fall, it was held that there can be more than one direct cause of the victim’s injuries but one of the direct causes must be the use or operation of the vehicle and the vehicle need not come into contact with the accident victim.

23The respondent submits that the intervening act test asks if there was any force working actively from a new and independent source that cannot be said to be part of the “ordinary course of things” or a normal incident or risk of using the specific car in question and relies upon the Court of Appeal cases of Downer⁶ and Martin.⁷ Both cases acknowledge that assaults are seen as an intervening act and the vehicle is only the location of the assault and not a direct cause of any impairment resulting from the assault.

24The applicant submits that Downer and Martin are distinguishable from the current incident in that the use or operation of the vehicle started a chain of events which the assault is intrinsically linked and secondly, the applicant was not assaulted at random but in his capacity as an Uber driver.

25I disagree with the applicant’s submissions. The applicant’s car was the location for the assault but his vehicle was not the direct or indirect cause of his injuries. Even if I were to accept the applicant’s submission that he was targeted as the Uber driver and that was the reason for the assaults, in my opinion, the fact that the applicant was an Uber driver provided the opportunity, location and motivation for the assault, but that unfortunately does not meet the legal test of an accident. Although I am not bound by FSCO case law, I agree with the reasoning in the Kumar and Coachman ⁸ case where it was held that an assault on a taxi-driver sitting in his taxi-cab was not an “accident” because “while the taxi-cab provided the opportunity, location and motivation for the assault, it did not directly cause the impairment.”

26In Kamel and TD General Insurance Company⁹ where taxi passengers specifically asked the dispatcher for Mr. Kamel’s cab and once inside, the passengers assaulted and murdered Mr. Kamel. In that case the arbitrator was not persuaded that an assailant’s motivation is determinative of whether an event is an “accident or not” and the arbitrator was not persuaded that the taxi-driver being specifically targeted changes the outcome of whether it was an “accident” and ultimately ruled that it was not an “accident”.

27I find the reasoning in the Kumar and Kamel decisions persuasive. Even if the applicant was targeted for an assault, I do not find that to be an “accident”. The vehicle was not the direct cause of his injuries. I find the assaults to be intervening acts and not part of the “ordinary course of things” or a “normal incident of the risk created by the use or operation of the car”. Forcibly extracting a person from a vehicle and assaulting them is not in the “ordinary course of things” associated with the use or operation of the vehicle. The forcible act of removing the applicant from the vehicle is a form of assault and the use or operation of the vehicle was ancillary to the assault. As a result, I find that the applicant has not satisfied the second part of the causation test. I will now turn to discuss the third aspect of the causation test and that is whether the vehicle was the dominant feature of this incident.

Was the use or operation of the motor vehicle a dominant feature of the incident?

28A “direct cause” is a cause or an act that sets in motion an uninterrupted chain or train of events or the first in a row of blocks after which the rest fall down without the assistance of any other act or intervention of any other force. If an unbroken chain of events involving the use or operation of an automobile leads to an injury, the injury can be said to have been directly caused by the incident.¹⁰

29The applicant submits the use of the vehicle was the dominant cause of the impairment and relies on North Waterloo, in that case the taxi-driver Mr. Samad got into an argument with his passengers about the address the passengers were being dropped to and stopped his vehicle on the side of the road. He was then punched in the face by one of the passengers and Mr. Samad told them both to leave. As they left the vehicle they did not close the door so Mr. Samad got out of the vehicle to close the door. As he was doing so, his hand was on the vehicle and he was shoved by one of the passengers, slipped on ice and fell into the ditch.

30In North Waterloo it was held that there was not one dominant feature that was the cause of Mr. Samad’s impairment… “it is the entire series of events that started with the use or operation of the automobile and ended in an injury…I do not feel you can isolate either the assault by one of the passengers or the slipping on ice by Mr. Samad from the entire chain of events which was tied to the use and operation of the automobile.”¹¹ In that case it was ruled to be an “accident”.

31The applicant submits his entire series of events started with the use or operation of the vehicle as in North Waterloo and ended in an injury because the applicant was using and operating his vehicle as an Uber driver.

32I do not agree, the facts in the current case are not similar to North Waterloo and I do not find the applicant’s injuries to be as a result of the “ordinary use or operation of a vehicle” and the vehicle was not the “direct cause” of the injuries. In my opinion, the applicant’s injuries were not as a result of any uninterrupted chain of events without the assistance of any other act or intervention of any other force. Without the assault taking place, the applicant would not have suffered his injuries and that interrupted or broke the chain of events from his ordinary use of the vehicle which was the parking of the vehicle (and waiting for passengers). In my opinion, the assault was an intervening act that took place and was the direct cause of the applicant’s injuries. The vehicle was not the dominant feature of this incident, rather the assault was.

33In Chisholm¹² the Court of Appeal held that the dominant feature is that aspect of the situation that most directly caused the injuries.¹³ Under the modified causation test from Chisholm and Greenhalgh, it is not enough to show that an automobile was the location of an injury inflicted by the (assailants), or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.¹⁴

34In this case, I find that a later intervening act occurred, which was the assault that caused the impairments and not the use or operation of the vehicle. As such, I find that this was not an “accident” as defined in the Schedule.

ORDER

35For the above reasons, the application is dismissed.

Footnotes

1. 1Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); see also: Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ON CA), 2004 CarswellOnt 3426 (ONCA) at para. 10
2. 22016 ONCA 226
3. 3ibid, at para. 17
4. 4ibid, at para. 21
5. 5FSCO Appeal P11-00015, July 18, 2012
6. 6Downer v Personal Insurance Co., 2012 ONCA 302 [2012]
7. 7Martin v 2064324 Ontario Inc., 2013 ONCA 19, [2013]
8. 8Kumar and Coachman Insurance Company (Appeal P01-00026, August 9, 2002)
9. 9Kamel and TD General Insurance Company (FSCO A06-002469, November 23, 2007)
10. 10Samad v North Waterloo Farmers Mutual Insurance Co. 2016 CarswellOnt 5685 at para 65. (North Waterloo)
11. 11Supra note 10 at para 34.
12. 12Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA)
13. 13Supra note 10 at para. 82.
14. 14Supra note 6 at para 39.