W.R. v. Aviva Insurance Company, 2020 CanLII 40348

Citation: W.R. v. Aviva Insurance Company, 2020 ONLAT 19-000791/AABS

Released: May 20, 2020

Tribunal File Number: 19-000791/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits

Between:

[W. R.]

Applicant

and

Aviva Insurance Company

Respondent

DECISION

PANEL:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Timothy Gindi, Counsel

For the Respondent:

Dale Stuckless, Counsel

HEARD:

by way of written submissions

OVERVIEW

1[W.R] died on November 21, 2017 in his motor vehicle. His spouse, [W.R] (“applicant”), sought death and funeral benefits from Aviva General Insurance (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”). The respondent denied the benefits and the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service for dispute resolution.

ISSUES

2The issues to be decided in this hearing are:

i. Is the applicant entitled to death benefits in the amount of $25,000.00 claimed on November 22, 2017 and denied by the respondent on April 8, 2018?

ii. Is the applicant entitled to payment for the cost of funeral expense in the amount of $17,190.83 claimed on December 5, 2017 and denied by the respondent on April 8, 2018?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The death of [W.R] did not result from an “accident” as defined by the Schedule. Therefore, the applicant is not entitled to death and funeral benefits.

FACTS

4The facts in this case are not significantly in dispute and are largely a matter of record.

5The Office of the Fire Marshall and Emergency Management investigated the incident in which [W.R] passed away and made a report (“fire investigation report”) based, in part, on security video. The fire investigation report establishes that, on November 21, 2017, [W.R] drove his vehicle on the exit road from Woodbine Racetrack at 4:41 a.m., mounted the curb, and travelled down a grassy embankment where it came to rest. At approximately 4:48 a.m., smoke emanated from the vehicle and, at 4:50 a.m., flames are observed. At 5:16 a.m., Toronto Fire Services located [W.R] lying across the driver and passenger seats of the vehicle, deceased. A partially melted red gasoline container and pour spout were located on the passenger side floor board of the vehicle.

6The cause of the fire was found to be “incendiary-arson-intentional ” by the fire investigator who found that intentionally introduced gasoline fuel vapours were ignited by the intentional application of an open flame produced by the ignition of a combustible fabric dishtowel from the 12V cigarette lighter of the vehicle. The fire investigator concluded that there was intentional application of an open flame (through human intervention and design) to a combustible fuel package (intentionally introduced gasoline fuel vapour).

7The coroner noted that the fire investigation report indicates that the fire was started intentionally by a 12-volt car cigarette lighter that was used to ignite a dishtowel and a 10 litre container of gasoline all found on the front floor of the vehicle. The coroner found the immediate cause of death to be smoke inhalation and ultimately reported suicide.

LAW AND ANALYSIS

8Section 26(1) of the Schedule provides that an insurer shall pay a death benefit in respect of an insured person who dies as a result of an accident, within 180 days after the accident or within 156 weeks after the accident, if the insured person was continuously disabled as a result of the accident.

9Section 27(1) of the Schedule provides that an insurer shall pay a funeral benefit for an insured person who dies as a result of an accident. The funeral benefit is limited by s. 27(2)(a) to $6,000.00 unless optional coverage is applicable as set out in s. 27(2)(b).

10Section 3 of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

Positions of the Parties

11The applicant submits that the death benefit and a funeral benefit of $6,000.00 are payable because [W.R] died as a result of an accident.

12The respondent submits that the death and funeral benefits are not payable because the fire incident on November 21, 2017 does not meet the definition of an “accident” in s. 3 of the Schedule.

Was the fire incident an “accident”?

13I find that the fire incident on November 21, 2017 was not an accident within the meaning of s. 3 of the Schedule.

14The Ontario Court of Appeal has established a two-part test to determine whether an incident constitutes an accident² as follows:

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.

15If it can be established that the use or operation of the vehicle 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 vehicle was a “direct cause” of the injuries.”³

16The application of this test to the facts of this case follows.

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

17I find that [W.R]’s death did not arise out of the use or operation of the motor vehicle because [W.R] died from smoke inhalation in circumstances where he introduced combustible materials to the vehicle for the purpose of suicide.

18The applicant argues that the purpose test is satisfied because the vehicle was in ordinary operation from when [W.R] drove on the exit road of Woodbine Racetrack to when he died as a result of smoke inhalation from his vehicle. However, the facts do not support this argument. At the time of his death, [W.R] was not using or operating the vehicle for travelling from one place to another or parking the vehicle. Under [W.R]’s control, the vehicle had left the roadway and come to a stop, at which time [W.R] used it to bring about his death, employing part of the vehicle’s mechanical structure, the cigarette lighter, as part of the method for suicide.

19[W.R] used the vehicle as both the venue for suicide and part of the mechanism of suicide. In my view, this is an aberrant use of the vehicle. [W.R] was putting the vehicle to a use that departed “from the ordinary and well-known activities to which automobiles are put”.⁴ As a result, [W.R]’s death did not arise out of the use or operation of the vehicle within the meaning of the Schedule.

20The applicant relies on Vijeyekumar v. State Farm Mutual Automobile Insurance,⁵ which involved a death from carbon monoxide that was produced by the car while the car engine was running and funneled into the vehicle through a hose. This case is factually distinct. Here, the vehicle did not produce smoke or fire while being operated. The smoke and fire were introduced into the vehicle by the deceased and were not produced by operation of the vehicle.

Did the use or operation of a motor vehicle directly cause the death (the causation test)?

21In determining causation, considerations are:

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

ii. 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; and

iii. whether the use or operation of the motor vehicle as a dominant feature of the death.

22The applicant argues that [W.R] died as a result of operating his vehicle by simply being in the confines of his vehicle with the windows shut, causing the smoke to remain within the vehicle, and him dying as a result of smoke inhalation. This argument is not persuasive. This argument ignores the fact that [W.R] himself set the fire that produced the smoke that caused his death. Simply being in the vehicle and refusing to leave when smoke occurs from a fire one has set does not constitute operation of the vehicle. Nothing in the operation of a vehicle requires the driver to set the vehicle on fire.

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

23The applicant argues that [W.R] may not have died from smoke inhalation but from being in his vehicle with his seatbelt on and but for his windows being shut. To this end, she relies on Dittman v. Aviva Insurance Co. Canada⁶. Dittman involved a driver who purchased a coffee at a McDonald’s drive-thru and spilled it on herself. The court found that this was an “accident”. However, in Dittman, the Court of Appeal found that the use of a running motor vehicle in gear to access the drive-through and the seatbelt restraint were direct causes and dominant features of the impairment the driver suffered. This argument is not persuasive because it ignores the fact that the death was caused by smoke inhalation from a fire that [W.R] set himself.

24However, as noted by Laskin,J. noted in the Chisholm⁷, 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 [W.R] was in the vehicle when he died, 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.”⁸

Was there an intervening cause?

25I find that [W.R]’s death was not a consequence directly caused by the use or operation of the vehicle but was caused by a later intervening act. [W.R] died from smoke inhalation from a fire he started or, at very least, a fire that started in the ideal fire-starting conditions he created with a cloth, the cigarette lighter and gasoline. The Fire Marshall’s report found the cause of the fire to be “incendiary-arson-intentional”. The coroner found the death to be from smoke inhalation/suicide.

26The applicant argues that there was an unbroken chain of events from the moment [W.R] drove on the exit road of the Woodbine Racetrack to when he rolled down the embankment, collided with a tree and finally to when the fire started, resulting in his death. The facts do not support this argument.

27The fire-starting act was not a normal incident of the risk created by use or operation of the vehicle or “part of the ordinary course of things”⁹ that might make the applicant eligible for accident benefits. Death by smoke inhalation was not directly caused by the use or operation of the vehicle but by the burning of combustible materials [W.R] put in the vehicle.

28This independent intervening act broke the chain of events which started with [W.R] using or operating the vehicle and ended with smoke inhalation. The starting of the fire was an act independent of the vehicle’s use or operation. Even though the vehicle was equipped with a cigarette lighter, in the ordinary course of things it is not intended to come into contact with cloth and gasoline. The length of time involved between the vehicle stopping and visible smoke and flames, or whether or not the dishtowel was placed in the cigarette lighter before or after he went off the road does not change this. It is the nature of the act, in this case the setting of the fire, that makes it an intervening act, not the length of time it took to do so.

29The applicant appears to suggest that “gasoline spilled as a result of the sudden movements of the vehicle rolling off the road”. This is not supported by the factual findings in the fire investigation report. Even if such a thing occurred, the evidence we have indicates that [W.R] intentionally brought the gasoline and the cloth into the vehicle and used them to start the fire. There is no evidence to the contrary.

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

30I find that the dominant feature of [W.R]’s death was the introduction of combustible materials into the vehicle and their subsequent ignition which produced the smoke resulting in his death. I therefore find that the use or operation of the vehicle was not the dominant feature of the death.

31The applicant argues that the presence of [W.R] in the vehicle while the smoke overwhelmed the vehicle resulting in smoke inhalation is the dominant feature of his death and as such, his operation of the vehicle had not ended prior to his death. Again, the dominant feature of [W.R]’s death was the fire that he set. There is no evidence that the vehicle would have caught fire without the cloth, cigarette lighter and gasoline that [W.R] arranged to come into contact with each other.

32In reply submissions, the applicant argued that the respondent’s submissions contained factual inaccuracies and speculation. To the extent that this is correct, no reliance has been placed on any factual inaccuracies or statements not supported by the evidence. The cases cited by the applicant relate to legal principles not in dispute here, including that the Schedule is consumer protection legislation and ought to be interpreted broadly.

33I find that [W.R]’s death did not result from an “accident” within the meaning of the Schedule. As a result, death and funeral benefits are not payable to the applicant.

Interest

34As no benefits are payable, no interest is payable.

ORDER

35For the reasons above, the application is dismissed.

Released: May 20, 2020

________________________

Avril A. Farlam

Vice Chair

Footnotes

1. 1O.Reg. 34/10.
2. 2Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ON CA), 2004 CarswellOnt 3426 (ONCA) at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.
3. 3Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
4. 4Ibid., para. 21.
5. 51999 CanLII 1640 (ON CA), 44 OR (3d) 545 (CA).
6. 62016 ONSC 6429, aff’d 2017 ONCA 617 at para 2.
7. 7Supra note 2, para. 25.
8. 8Ibid., para 26.
9. 9J.G. Fleming, The Law of Torts, 9th edition cited by Laskin, J. in Chisholm, para 29.