RECONSIDERATION DECISION
Before: Chloe Lester
File: 17-002922/AABS
Case Name: M.S. and Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Samia Alam, Counsel
For the Respondent: Hooman Zadegan, Counsel
OVERVIEW
1The applicant, the insured, filed an application for dispute resolution to the Licence Appeal Tribunal (the “Tribunal”) for benefits and to determine the issue of whether the incident was considered an accident.
2A preliminary issue hearing was scheduled, heard in writing and determined the incident was not an accident. The Tribunal found that the applicant had not met the purpose or the causation test.
3The applicant requests a reconsideration of the decision in accordance with section 18.2 (b) and (d) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”). They claim the adjudicator made a serious error of law and fact and there is recent case law from Divisional Court that would have affected the result of the decision had it been considered. The applicant requests the adjudicator’s decision be overturned.
4The respondent argues that no error has been made by the adjudicator and he considered the purpose and causation test appropriately.
5Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
6The applicant’s Request for Reconsideration is dismissed.
BACKGROUND
7The Tribunal’s decision frames the incident in this way:
a. MS was the driver of a rented taxi cab when the incident occurred.
b. MS picked up three passengers and drove them to their destination, a townhouse complex.
c. All but one of the passengers left the taxi and walked away from it. One of them, (“X”) stepped out and indicated to MS that he had no money to pay the taxi fare. X invited MS to follow him home to collect his fare.
d. MS followed X into a laneway. X then attacked MS, beating him and leaving him on the ground.
e. The nature and extent of MS’s injuries are uncontested, as is the fact that they were inflicted by X and not caused by anything else.
LEGAL TEST
8The grounds for a Request for Reconsideration are contained in Rule 18 of the Rules. A Request for Reconsideration will not be granted unless one or more of the grounds have been met. More specifically, the applicant argues that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
9The applicant argues the adjudicator made the following errors:
a. First, the Tribunal failed to properly consider the applicant’s affidavit and the chain of events that led to the purpose test not being met. There is also a recent Divisional Court case that was not available at the time of the hearing, that would affect the result of this decision.
b. Second, the Tribunal failed to outline the three-prong causation test.
10An accident is defined as “an incident in which the use of an automobile directly causes an impairment.” To define an accident, the applicant must satisfy both the purpose and causation test.
a. The purpose test: Did the incident arise out of the ordinary and well-known activities for which automobiles are used?
b. The causation test: Did such use and operation of an automobile directly cause the impairment? Was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”? In applying the causation test the adjudicator must undertake a three-prong assessment, the “but for”, intervening cause and dominant feature test.
ANALYSIS
Did the Tribunal make a significant error of law or fact such that the Tribunal would likely have reached a different decision?
11The applicant claims the Tribunal made an error in fact and/or law can be summarized in the following way: