Citation: Fariad v. Intact Insurance Company, 2020 ONLAT 20-001379/AABS

Released Date: 12/09/2020

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:

Masood Fariad

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Masood Fariad, Self-represented

For the Respondent:

Tracy Brooks, Counsel

HEARD by Video

October 8, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1Masood Fariad (“applicant”) was operating his automobile as a driver for Uber on June 10, 2018¹ when he was verbally assaulted and made to feel unsafe by the Uber rides he picked up. The applicant asked the rides to leave the automobile following which the automobile was damaged, causing the applicant to fear he may be injured or killed. The applicant says as he was swerving away from the assailants with his automobile, it jerked or swerved causing him physical impairment when his knee struck the steering wheel. The applicant also says he suffered emotional and psychological impairment. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule² - Effective September 1, 2010 (the ''Schedule'').

2Intact Insurance Company (“respondent”) denied benefits claimed by the applicant. The respondent’s position is that the applicant was not involved in an “accident” within the meaning of s. 3(1) of the Schedule.

3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal). At the case conference, the Tribunal ordered that the preliminary issue below be heard before scheduling a substantive issues hearing.

PRELIMINARY ISSUE

4The preliminary issue to be decided is:

i. Was the applicant involved in an “accident” as defined within s. 3(1) of the Schedule?

RESULT

5Any impairment the applicant may have sustained as a result of the June 10, 2018 incident (“incident”) did not result from an “accident” as defined by the Schedule. Therefore, the applicant is not entitled to benefits. The application is dismissed.

LAW

6Section 3 of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

7The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

ANALYSIS

Was the incident an “accident”?

8For the following reasons, I find that the applicant was not involved in an “accident” as defined within s. 3(1) of the Schedule.

9The Ontario Court of Appeal has established a two-part test to determine whether an incident constitutes an accident³ as follows:

a. Purpose test: did the incident arise out of the use or operation of an automobile, and

b. Causation test: did the use or operation of an automobile directly cause the impairment.

10If it can be established that the use or operation of an automobile was the cause of the injuries, then the applicant must establish that there was “no intervening act(s) that resulted in the injuries that cannot be said to be part of the course of the “ordinary course of thing”. The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.”⁴

11The application of this test to the facts of this case follows.

Did the applicant’s injuries arise out of the use or operation of an automobile (the purpose test)?

12The applicant submits that there were two causes for his alleged emotional, psychological and physical injuries, specifically his use or operation of his automobile, as well as the assaults/attacks.⁵ The applicant relies on various case law including SG v. Intact Insurance Company, LL v. Intact⁶, Amos v. Insurance Corporation of British Columbia,⁷ Saharkhiz v. Underwriters, Members of Lloyd’s London, England⁸.

13The respondent submits that the applicant was not involved in an “accident” on June 10, 2018 as that term is defined in s. 3(1) of the Schedule.

14I disagree with the applicant’s submission and find that the applicant’s alleged injuries did not arise out of the use or operation of an automobile, because at the time of his alleged injuries, the applicant was not using the automobile for the ordinary and well-known activities to which automobiles are put. I accept the second part of the applicant’s submission the assaults/attacks caused his alleged injuries, but I find them to be an intervening act and the sole cause.

15At the hearing, the applicant in his testimony in chief adopted the evidence given by him in the Accident Benefits statement given to the respondent on December 16, 2019 (“Statement”), the police reports and the statements in his examination under oath September 17, 2020 (“EUO”). He stated that the evidence in these statements are consistent and will demonstrate that the incident was an “accident”.

16In cross-examination the applicant testified that he picked up two separate Uber rides each comprised of two passengers (“ride 1” and “ride 2”). With ride 1 he sensed hostility which made him feel unsafe. The applicant said that the hostility was not necessarily directed at him but possibly ride 1 was hostile because of having to share the Uber ride with other riders. The applicant said he exercised his right to have ride 1 leave the automobile when ride 2 was picked up. The applicant said ride 2 was already in the automobile or getting ready to get in the automobile when he asked ride 1 to leave the automobile. The applicant testified that when ride 1 got out of the automobile, they slammed the door and left the scene.

17In his report to the police the applicant wrote that “Simultaneous to Rider 2 entering the automobile, Rider 1…began becoming disgruntled and verbally abusive towards me, possibly due to new riders entering the automobile and was advised by me that a Pool request does come with potential of addition riders. Rider 1 began aggressively to make statements such as “I don’t want to hear your voice” and subsequent to this I advised her that I do not have to transport them if she is being abusive or threatening. At this point Rider 2 also began to utter speech which I could not ascertain however it was loud and directed towards me. I subsequently advised both Rider 1 and Rider 2 that I do not feel safe in the car with them and that I would like them to leave the premise of my car and that they could cancel the ride from that point on through Uber.” Ride 1 “…once outside also struck the passenger side panel behind the back passenger door.”

18The applicant testified that both ride 2 passengers were abusive to him and yelling in the automobile. He felt unsafe with them and asked them to leave as well. Both ride 2 passengers were yelling at him and he had to ask ride 2 to leave twice. The applicant said he notified Rider 1 and Rider 2 that he didn’t feel safe and that they could deal with Uber for a refund. The applicant said he does not know why ride 2 was yelling at him.

19The applicant said that after ride 2 got out of the automobile, he attempted to drive away, and the attack happened. Ride 2 male ran at the automobile and kicked the panel on the front bumper near the headlights. Ride 2 female struck the right-side passenger door panel of the automobile shortly after the male and while the automobile was moving. She ran toward him with an object in her hand. The applicant could see her through the passenger window. The applicant believes she was attempting to hit him but missed and hit the automobile. He feared she would hurt or even kill him.

20The applicant testified he made the automobile swerve to the left to save himself from harm from her which caused the automobile to jerk simultaneously with him moving the steering wheel to the left and his right knee made impact under the steering wheel panel.

21I find this aspect of the applicant’s testimony unreliable because it is not supported by the June 27, 2018 written report, he made to the police some two weeks after the incident, by his report to Uber or by the 2018 records of his family physician Dr. Gaur. The applicant admitted that he didn’t include in the written report to the police that the automobile swerved, jerked and his knee struck the interior of the automobile. In the police report he wrote “[t]he male proceeded to kick the front passenger side headlight and bumper; the female struck the back-passenger door with a white object denting the door panel. I drove away.” The applicant said he didn’t feel the need to include the swerving of the automobile, jerking and hitting his knee at the time. The report was for criminal matters. I find this statement unreliable given that the applicant, a lawyer in training at the time of the incident, could reasonably be expected to know that providing a complete report to the police is important. The applicant testified that he reported the incident to Uber but didn’t mention the jerking of the automobile or the knee injury. The applicant also testified that the first time he saw Dr. Gaur after the incident was some two months later on September 10, 2018. He admitted that he did not report the incident to Dr. Gaur at that time because his mother had died weeks after the incident, so he was not focused on his injuries. Even though he had seen Dr. Gaur March 26, 2019, the applicant also admitted that Dr. Gaur’s first note of the incident was September 12, 2019 at which time Dr. Gaur noted that the right knee pain is increasing “since last month”.

22Based on the totality of the applicant’s evidence, I find that the applicant’s ordinary and regular use of his automobile stopped once the verbal assaults escalated to the point where he feared for his safety and he decided to ask the riders to get out of his automobile. Verbal and feared physical assaults are not part of the normal use or operation of the automobile.

23The applicant argues that the purpose test is satisfied because the incident does arise out of the ordinary and well-known activities to which automobiles are put, specifically, driving the automobile during his duty as a driver for Uber.

24However, the facts do not support this argument. At the time of his alleged injuries, the applicant was involved in an altercation with his riders, at first verbal and escalating to the point where the applicant terminated the Uber ride relationship of both ride 1 and ride 2, had required both rides to leave the automobile, both rides had left the automobile, ride 2 attacked the automobile and the applicant feared for his safety. At the time when the verbal assaults and feared physical assault with the rides started and escalated to the point that the applicant no longer felt safe and the applicant chose to terminate the Uber ride relationship with the rides, the automobile was no longer being operated in an ordinary manner. I find that this use of the automobile in my view departed “from the ordinary and well-known activities to which automobiles are put”.⁹ The applicant’s alleged psychological injuries arose from the verbal altercation with the riders. The alleged physical injuries arose from his attempt to avoid further altercation and assault with the riders once they had exited the automobile. As a result, any injuries the applicant sustained did not arise out of the use or operation of the automobile within the meaning of the Schedule.

25The case law cited by the applicant does not support his position here. SG v. Intact Insurance Company¹⁰ is not binding on me and I decline to follow it given that, unlike here, both parties agreed that the purpose test had been met. LL v. Intact¹¹ is also not binding on me and I decline to follow it given that, unlike here, the respondent conceded that the assault was an accident. Amos v. Insurance Corporation of British Columbia¹² is not helpful here given the legislation involved is insurance legislation from another Province which pre-dates the Schedule applicable to this case. Saharkhiz v. Underwriters, Members of Lloyd’s London, England¹³ is not helpful because it dealt with a differently worded definition of “accident” not applicable here.

26For the above reasons, I find that the June 10, 2018 incident does not meet the purpose test. Even though the respondent argues that this applicant’s application must fail on this basis, and I agree, I will address the balance of the test.

Did the use or operation of an automobile directly cause the applicant’s injuries (the causation test)?

27Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal¹⁴:

i. whether the incident would have occurred “but for” the use or operation of the automobile;

ii. whether there was an intervening act that cannot be said to be part of the ordinary course of the use or operation of the automobile; and

iii. whether the use or operation of the automobile was the dominant feature.

28The applicant suggests a different analysis from another Tribunal case¹⁵ which is not binding on me and I decline to follow it. I follow instead the Ontario Court of Appeal framework for analysis suggested by the respondent set out above.

29The applicant submits that the use or operation of the automobile directly caused the injuries through the accident, and that the attack/assault on the applicant and/or his automobile by rider 2 caused the subject accident and was an additional cause of the injury. The applicant relies on LL v. Intact to support the proposition that there can be more than one direct cause of injury. The applicant also relies on S.G. v. Intact Insurance Company to support the proposition that an assault committed on or by a driver is not an accident unless “…the assault caused an automobile to lose control resulting in injury to the victim (e.g. violent swerving, a crash or collision)”.

30These arguments are not persuasive. The fact that he was in the automobile during the incident does not constitute use or operation of the automobile. I have already found that that the applicant’s ordinary and regular use of his automobile stopped once the verbal assaults escalated to the point where he feared for his safety and he decided to ask the riders to get out of his automobile. Verbal and feared physical assaults are not part of the normal use or operation of the automobile. In other words, the assaults initiated the chain of events that led to the applicant’s alleged injuries, not the use or operation of the automobile. The cases clearly establish that assault cannot be said to be part of the ordinary course of things. This is not a case in which I can find on the evidence before me that there is more than one direct cause of injury. The S.G. case is not binding on me and I decline to follow but, I do note that even in that case it is indicated that an assault committed on a driver is not an accident unless the assault caused the automobile to lose control resulting in injury to the victim.

31There is no evidence before me that the applicant ever lost control of his automobile. In the most contemporaneous report, the applicant wrote to the police that “I drove away”, making no mention of jerking of the automobile or injury to himself. Similarly, the applicant admitted in his testimony that he reported the incident to Uber but didn’t mention the jerking of the automobile or the knee injury. To the contrary, the evidence indicates that the applicant was in control of the automobile at all times, even during the verbal assaults on him and the physical assaults on the automobile. The applicant stopped the automobile, terminated both Uber rides, made both rides exit the automobile and drove away while rider 2 was attacking the automobile. There is no evidence that the applicant’s automobile collided with any other automobile or object as he drove away The applicant testified that he was not aware if his automobile collided with anything outside the automobile. He testified however, that he put the automobile in park, then switched it to drive when he drove away, that the engine kept running and did not stall.

Would the alleged injuries have occurred “but for” the use or operation of the automobile?

32It is clear from the facts that but for the applicant picking up rides in his automobile as an Uber driver, any injuries he may have sustained in the incident would not have occurred. The respondent did not seriously challenge this in submissions but instead submitted that the “but for” test is an exclusionary test, the purpose of which is to eliminate factually irrelevant causes and screen out factors that make no difference to the outcome. The respondent also submits that that the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability.

33I agree with the respondent’s submissions on the “but for” test. As Laskin,J. noted in Chisholm¹⁶ , the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome…the but for test does not conclusively establish legal causation.” Here, even though the applicant was in the automobile when he was allegedly injured, legal entitlement to accident benefits “requires not just that the use or operation of the car be a cause of the injuries but that it be a direct cause.”¹⁷

Was there an intervening cause?

34I find that the applicant’s alleged injuries were not a consequence directly caused by the use or operation of the automobile but were caused by a later intervening act, specifically the assaults. It was the assaults that initiated the chain of events that led to the applicant’s alleged injuries, not the use or operation of the automobile. The automobile was the situs of the incident. I find that there were not, as the applicant suggests, two causes for his alleged injuries, specifically his use or operation of his automobile, as well as the assaults/attacks but one cause – the assaults.

35The verbal assaults and feared physical assault was an independent intervening event which broke the chain of events which started with the applicant picking up rides for Uber and ended with him suffering alleged injuries as he drove away after the rides had been terminated. The assaults were acts independent of the automobile’s use or operation. It is the nature of the assaults, in this case making the applicant feel unsafe enough that he had to terminate the rides, that makes the assaults an intervening act, not the fact that the assaults took place while the applicant remained in the automobile.

Was the use or operation of the automobile a dominant feature of the applicant’s injuries?

36I find that the use or operation of the automobile was not the dominant feature of his alleged injuries but instead that the dominant feature of the applicant’s alleged injuries was the assaults.

37I find that the June 10, 2018 incident does not meet the causation test. Therefore, any impairments the applicant may have sustained as a result of the June 10, 2018 incident, did not result from an “accident” as defined by the Schedule. As a result, the applicant is not entitled to benefits.

ORDER

38For the reasons above, the application is dismissed.

Footnotes

1. 1The applicant testified at the hearing that he does not agree that the alleged accident which is the subject matter of this hearing took place on June 10, 2018 as he indicated on his application filed with the Tribunal February 12, 2020 but actually started in the late evening of June 9, 2018 so that when the incident was logged it was around midnight of June 9, 2018 or the early hours of June 10, 2018. For ease of reference, in this Decision, the date of the alleged accident will be referred to as June 10, 2018.
2. 2O.Reg. 34/10
3. 3Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.
4. 4Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
5. 5Submissions of the Applicant dated September 30, 2020, para 9.
6. 6L.L. v. Intact Insurance Company, 17-003125/AABS (ON LAT).
7. 7Amos v. insurance Corporation of British Columbia, 1995 CanLII 66 (SCC), [1995] 3R.C.S. 405 (BCCA.).
8. 8Saharkhiz v. Underwriters, Members of Lloyd’s London, England, 1999 CanLII 15099 (ON SC).
9. 9Ibid., paras 13, 21.
10. 10S.G. v. Intact 2018, No. 17-002640/AABS para 16 (ON LAT).
11. 11L.L. v. Intact Insurance Company, 17-003125/AABS (ON LAT)
12. 12Amos v. insurance Corporation of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 R.C.S. 405 (BCCA.)
13. 13Saharkhiz v. Underwriters, Members of Lloyd’s London, England, 1999 CanLII 15099 (ON SC).
14. 14Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 36.
15. 15S.G. v. Intact 2018, No. 17-002640/AABS para 16 (ON LAT).
16. 16Supra note 3 or 14 , para 25.
17. 17Ibid., para 26.