I.W. v. Coachman Insurance Company, 2020 CanLII 27393

RECONSIDERATION DECISION

Before: Derek Grant

Date: 03/27/2020

Tribunal File Number: 18-010935/AABS

Case Name: I.W. v. Coachman Insurance Company

Written Submissions by:

For the Applicant: Michelle Moraes, Legal Representative

For the Respondent: Jason H. Goodman, Counsel

OVERVIEW

1I.W. filed a Request for Reconsideration of the February 19, 2019 Decision (“the Decision”) of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). In that Decision, I dismissed the application for accident benefits after finding that I.W. was not involved in an “accident” as defined by the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2I.W. submits that I made errors of law and fact, and seeks an order changing the Decision. The Request for Reconsideration alleges errors in my determination that I.W. was not involved in an “accident”.

3Coachman submits that the Decision should be upheld, and the Request for Reconsideration dismissed.

4Pursuant 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 the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

5I.W.’s Request for Reconsideration is dismissed.

BACKGROUND

6I.W. sustained injuries while working as [a driver] by four riders on October 23, 2016 (the “incident”). He claimed entitlement to benefits under the Schedule. When those benefits were denied, I.W. submitted an appeal to the Tribunal. An in-person hearing was held to determine the preliminary issue of whether the incident is an “accident” as defined by the Schedule. I concluded that the incident is not an “accident” and dismissed I.W.’s claim for accident benefits. I.W. seeks reconsideration of that Decision.

ANALYSIS

Request for Reconsideration

Error of Fact

7The grounds upon which a Request for Reconsideration can be granted are set out in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure.¹ The ground that I.W. submits applies in this case is Rule 18.2(b), which states:

“The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.”

8Specifically, I.W. submits that I made the following errors:

(i) in fact, and in law, by misstating that there were four riders and not three, and that I did not interpret the causation test according to the case law that was presented at the hearing.

9I am not persuaded by the I.W.’s submissions that I made any error in fact or in law. I find that I applied the correct legal test, as set out in the Schedule and in the case law, when analyzing the evidence and determining whether the incident is an “accident”.

10In support of his position that I erred in fact, I.W. points to the police report that “clearly states it was only three riders as well as in the sworn testimony at the hearing”. I disagree. The number of riders indicated in the Decision is supported by the following information:

(i) In the Schedule A attached to the Application for Accident Benefits Form dated October 29, 2016, I.W. states “he was working as [a driver] on the night of October 23, 2017 and gave a ride to 4 riders” – Police Report Incident Report No. 16-234177.

11There is no evidence that there were only three riders on the night of the incident. In fact, all evidence regarding the number of riders confirms that number to be ‘4’. As such, I find there was no error made in the number of riders that was indicated in the Decision. Further, I find there was no error of fact made in the Decision as a result.

Error of law

12In support of his position that I erred in law, I.W. refers to the two-part test for determining whether an “accident” occurred, as articulated by the Supreme Court of Canada in the 1995 decision in Amos v. Insurance Corp of British Columbia.²

13At paragraph 14 of the Decision, I reference the definition of “accident” in s. 3(1) of the Schedule. At paragraph 16 of the Decision, I set out the two-part test applied by the Ontario Court of Appeal in Chisholm v. Liberty Mutual Insurance Group³ and Greenhalgh v ING Halifax Insurance Co.⁴, which test I applied in determining whether an accident had occurred.

14The first part of the test, the purpose test, requires a determination of whether the incident resulted from an ordinary and well-known activity to which automobiles are put. The parties agreed that the purpose test as set out in the Amos decision had been met.

15The second part of the test, the causation test, requires a determination of whether the use or operation of the automobile directly caused the impairment. In Chisholm the Court referred specifically to the definition of “accident” in the 1996 Schedule, which is the same as the definition in s. 3(1) of the Schedule. The Court went on to conclude that:

“But the stringent causation requirement – “directly causes” --- in the definition of accident under the 1996 Schedule means that the Amos test, or at least the causation part of that test, can no longer be used to interpret the definition.”⁵

16The decision in Greenhalgh notes that:

“… the Amos causation test does not apply to the 1996 legislation whereby the legislature clearly shortened the link between the use of an automobile and the occurring of the impairment…. the insured must meet the purpose test as set out in Amos and the causation test as set out in Chisholm.”⁶

17Contrary to I.W.’s submissions, I find that I applied the correct test and the relevant case law when analyzing the evidence and reaching the conclusion that an accident as defined by the Schedule had not occurred.

18I.W. submits that I erred in the application of the causation part of the legal test for determining whether an accident occurred to the facts in this case. Most of I.W.’s submissions, however, simply reiterate the evidence and arguments considered at the hearing, and then argue that I reached an incorrect conclusion, rather than pointing to errors of law. A request for reconsideration is not an opportunity to re-litigate the matter, which is essentially what I.W. is attempting to do. Contrary to I.W.’s submissions, I do not find any error in the application of the law to the facts in this case for the reasons that follow.

Causation Test

19In his Request for Reconsideration, I.W. restates his argument that there was an unbroken chain of events that began when he was driving the passengers and he was hit by the front seat passenger while the vehicle was in use. He argues that I made several errors in reaching the conclusion that the assault was an intervening act and the direct cause of his injuries. I.W.’s arguments were considered and rejected at the hearing. I find that I made no error in reaching the conclusion that the causation test is not satisfied in this case for the following reasons.

20I.W. alleges that I did not consider the evidence of the activities he was engaged in prior to the assault in the hotel parking lot. He alleges that I failed to properly consider the circumstances that gave rise to his injuries thus failing to recognize that there was no break in the chain of causation. The evidence, as it applies to the chain of causation, is considered at paragraphs 23, 24 and 25 of the Decision.

21Contrary to I.W.’s argument that “the chain of causation…. was not broken by some intervening act”, the evidence referred to in paragraphs 23, 24, 25, 26 and 27 of the Decision supports the finding of an intervening act. This includes reference at paragraph 10 of the Decision to I.W.’s account of the events that when he “got out of the vehicle to retrieve his phone, and when he bent over to pick it up, one of the riders punched him, causing him to fall over. Once on the ground, I.W. submits, the four riders began assaulting him”. The case relating to an intervening act that was referred to by the parties is considered at paragraphs 24 and 25 of the Decision, where the factual distinctions between that case and the facts in this case are discussed.

22I.W. submits that the vehicle was the dominant cause of his injuries. At paragraphs 26 and 27 of the Decision, I find that it was the assault that was the cause of his injuries. Contrary to I.W.’s submission, I found that the vehicle was not involved nor was it the dominant cause of his injuries.

23I find that I.W. was not involved in an “accident” as defined by the Schedule, therefore, a case conference addressing the substantive issues is not required.

CONCLUSION

24For the reasons set out above, I find that I.W. has failed to establish any error of fact or of law. I therefore dismiss I.W.’s Request for Reconsideration.

Derek Grant, Adjudicator

Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended.
2. 2Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC).
3. 3Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ONCA).
4. 4Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ONCA).
5. 5Supra, footnote 3, at para 20.
6. 6Supra, footnote 4, at para 32.