L.L.B. v. Intact Insurance Company, 2020 CanLII 95904

Licence Appeal Tribunal

Citation: L.L.B. v. Intact Insurance Company, 2020 CanLII 95904

Released Date: 11/27/2020

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:

L.L.B Applicant

and

Intact Insurance Company Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Z. Jwan Desai, Counsel

For the Respondent: Patrick M. Baker, Counsel

HEARD: Via written submissions

OVERVIEW

1This matter arises out of an incident that occurred at a taxi stand on November 25, 2014. The incident resulted in physical and psychological impairments to the applicant, who then sought accident benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule'').

2Intact accepted that the first part of the incident—where the applicant’s body was struck by the driver’s car door—constituted an “accident” as defined by section 3(1) of the Schedule and afforded the applicant accident benefits for her physical impairments that resulted from same. However, Intact took the position that the second part of the incident—a series of punches to the applicant’s face by the same driver a distance away from the vehicle—was an assault and therefore did not constitute an “accident” under the Schedule. Intact denied the applicant’s claims for psychological benefits arising from same.

3The applicant disagreed and applied to the Tribunal for resolution of the dispute. A preliminary issue hearing was held, and a decision was released by the Tribunal on February 2, 2018. Intact requested judicial review of the decision. In a decision dated October 31, 2018, the Divisional Court quashed the Tribunal’s preliminary issue decision and ordered a new hearing.

ISSUES IN DISPUTE

4Accordingly, this is a preliminary issue rehearing pursuant to the order of the Divisional Court.² The parties agree that the following issues are in dispute³:

i. Whether the incident of November 25, 2014 qualifies as an accident as defined by s. 3(1) of the Schedule?

ii. Were the applicant’s impairments sustained on November 25, 2014 sustained as a result of an accident as that term is defined in s. 3(1) of the Schedule?

RESULT

5The incident on November 25, 2014 occurred in two distinct phases.

6The first phase of the incident involving the vehicle door constitutes an “accident”, as defined by s. 3(1) of the Schedule. Intact has acknowledged this and the applicant has received accident benefits related to her impairments.

7The second phase of the incident constitutes an assault and does not meet either of the Purpose Test or the modified Causation Test necessary to meet the definition of an “accident” under s. 3(1) of the Schedule.

ANALYSIS

November 25, 2014

8The factual circumstances giving rise to this dispute are well-documented.⁴ The applicant was working as a crew member of a television production company in downtown Toronto. The applicant’s job was to keep watch over three dedicated parking spaces, two of which were occupied by company trucks. The third open spot was to be made readily available in the event a production vehicle required it. Vehicles came and went throughout the day without incident.

9Immediately prior to the incident, a non-taxi vehicle pulled into the third space. The applicant approached the vehicle to advise the driver that the vehicle could not remain there. The driver insisted that he was not parking but then turned off the engine. The applicant advised the driver for a second time that the vehicle could not be parked in that spot.

10The driver became irate and began yelling at the applicant, who was standing next to the vehicle, that he was not parking in the spot. The driver then opened his vehicle door, bumping the applicant’s jacket. The driver then pulled the door inwards before pushing it outwards a second time, intentionally striking the applicant with the vehicle door on her forearms and left knee. The applicant backed away.

11The driver then exited the vehicle and shut the door. He approached the applicant and proceeded to punch her in the face three times, striking her right cheek and jaw as she stepped backwards. The assault only stopped when a bystander yelled at the driver to stop. The driver was charged and convicted of criminal assault. The parties advise that the outcome of sentencing is unknown.

12As a result of the incident, the applicant sustained physical injuries to her forearms and left knee when she was struck by the vehicle door. Her physical injuries have now resolved. However, as a result of the assault, the applicant also sustained bruising and tenderness to her face, was diagnosed with benign particulate vertigo, complains of headaches and, in the years since the incident, contends that she has developed psychological impairments in the form of panic attacks, fear of men, fear generally, anxiety, dizziness and memory issues. She has sought counselling for these specific issues.

"Accident" framework

13Section 2(3) of the Schedule provides that the benefits set out in the regulation shall be provided in respect of “accidents.” Section 3(1) defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment […].”

14In Chisholm v. Liberty Mutual Group⁵, the Court of Appeal set out a two-part test for determining whether an incident qualifies as an “accident” under the Schedule, known as the “Purpose” test and the “Causation” tests. The test was further refined by the Court in Greenhalgh v. ING Halifax Insurance Company⁶ such that, in order to qualify as an “accident” under the Schedule, the insured must satisfy both branches of the modified test:

a. The Purpose Test: did the incident arise out of the ordinary and well-known activities for which automobiles are used? and,

b. The Causation Test:

i. Did such use and operation of the automobile directly cause the impairment?

ii. 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 that sense, the second prong of the Causation Test concerns whether it can be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries. In Greenhalgh, the Court also addressed “but for”, “intervening act” and “dominant feature” considerations to analyze the modified Causation Test.

15In submissions, the parties wrestled with the rather significant body of jurisprudence on “accident” cases that have applied this two-part test.⁷ While I need not repeat all of the details from their respective positions, I have endeavoured to synthesize their positions below and identified the case law that informed my decision.

Positions of the Parties

16Intact submits that the facts of this case are severable into two distinct phases: there was an accident, then there was an assault. Intact submits that only the first phase involved the use of an automobile and it has accepted the applicant’s claims stemming from this part of the incident. However, Intact argues that the driver’s action in turning off and then leaving his vehicle in order to assault the applicant—the second phase—was an intervening act that bears no connection to a motoring purpose. Intact submits that this is in contrast to the first phase of the incident where the applicant was struck with the vehicle door, which is an “ordinary and well-known activity” to which vehicles are put. Intact submits that the case law confirms that assaults are not covered under the Schedule, that intentionally punching someone in the face is an assault and not an “accident”, that the vehicle was not the direct cause or the dominant feature of the applicant’s impairments and that the applicant has recourse available to her for her impairments through other compensation schemes.

17The applicant submits that the incident is not severable as there was no break in the chain of causation. She submits that the incident began when the driver of the vehicle struck her with the car door and then continued uninterrupted when he immediately stepped out of the vehicle to assault her. To this end, the applicant submits that there is case law that states that an assault may constitute an accident. She asserts that an accident includes a series of events that starts with the use or operation of a vehicle and ends with an injury. The applicant further submits that there was no dominant feature of the incident that could partition her impairments, as Intact suggests, as both the use of the car as a weapon and then the use of the driver’s fists as weapons cannot be distinguished as being the dominant cause of her injuries. Finally, the applicant asserts that the cases cited by Intact are not relevant or binding as they do not involve fact patterns in which the vehicle itself was the initial or intentional instrument of injury.

Not an accident

18I am persuaded by Intact’s submissions and follow the line of Court of Appeal cases it relied on, namely Chisholm and, contrary to the applicant’s position, Downer v. The Personal Insurance Co., 2012 ONCA 302 and Martin v. 2064324 Ontario Inc. (Freeze Nightclub), 2013 ONCA 19. On the facts, I find the incident that occurred on November 25, 2014 can properly be considered two separate phases: first, there was an “accident” and second, an assault that does not meet the definition of “accident.”

19To be clear, I agree with Intact that insofar as the vehicle was used as an instrument of the applicant’s physical injuries—the driver using the vehicle door to strike the applicant on her forearms and knee in the first phase of the incident—that that constitutes an accident. Intact has accepted this and, by all accounts, the applicant has received benefits under the Schedule for her impairments resulting from this phase.

The Purpose Test and the Causation Test

20However, I find it clear that the dominant and only feature of the second phase of the incident was an assault on the applicant involving the driver’s fists. There was no vehicle involved, the driver did not return to his vehicle post-assault and it cannot be said that the applicant’s impairments from this assault were directly caused by the vehicle or resulted from “the ordinary and well-known” use of that vehicle. Therefore, I agree that the second phase of the incident, being an assault on the applicant—not involving the vehicle, being a distance away from the vehicle, involving the driver’s fists and where the driver did not return to the vehicle—cannot meet the Purpose Test as it was not an incident that arose out of the ordinary and well-known activities for which automobiles are used.

21Further, I find the fact that the driver pursued the applicant after the first phase of the incident—by getting out of the vehicle, closing the door and proceeding towards her after she had retreated from the vehicle in order to strike her three times—means that it was not an uninterrupted journey or train of events, as the applicant suggests, nor does it make the vehicle the dominant feature or the direct cause of the incident. In this sense, I cannot find that the incident meets the modified Causation Test. Rather, I agree with Intact that the driver’s decision to turn off the engine, get out of the car, close the door and proceed towards the applicant in order to punch her in the face was an intervening cause that certainly falls outside of the “ordinary course of things” that would not normally involve the use or operation of a vehicle.

The case law; separate phases

22In Chisholm, the plaintiff was rendered a paraplegic when an unknown assailant fired gunshots at his car. His claim against his insurer under the Schedule was denied on the basis that his injuries were not caused by an "accident.” At paras. 29 and 34, the Chisholm Court emphasized that, even if the use of an automobile may be said to be a cause of an insured's injuries, a later intervening event can break the chain of direct causation. I find this reasoning applicable here. Intact has accepted that the use of the driver’s vehicle door led to physical impairments to the applicant’s forearms and knee. I agree that this can fairly be considered a normal incident of the risk created by the use or operation of a vehicle. However, in this case, as with the gun shots in Chisholm, I find the subsequent assault on the applicant by an otherwise unknown assailant can hardly be considered an intervening act in the “ordinary course of things.” Indeed, the assault was so bizarre and so disproportionate to the situation that I find it cannot be characterized as “ordinary” in any sense of the word. In this vein, I find that the assault constituted an intervening act that broke the chain of causation.

23The applicant asserts that the entire incident was an “accident” because it was an uninterrupted train of events that began with the bump from the vehicle door. I disagree. Even where the use of the vehicle is the catalyst to the subsequent assault and may have led to an injury, it is not enough to show that the vehicle was merely in the location of the injury or was involved; the use or operation of the vehicle must have directly caused the injury to be defined as an “accident.”⁸ Here, I agree with Intact that the three punches to the applicant’s face were the direct cause of her ongoing impairment, not the bump from the vehicle door or the proximity of the vehicle to the subsequent assault, which are ancillary. To borrow from para. 49 of Greenhalgh, I find the punches from the assailant were “the aspect of the situation that most directly caused” the applicant’s injuries and were therefore clearly the dominant feature in respect of the causation analysis.

24I also agree with Intact that there is limited distinction between the facts of this case and those in Downer and Martin. While the applicant asserts that these cases are distinguishable because a vehicle did not start the train of events in her case, I concur with Intact that these cases present obverse factual scenarios, where the order of events is just reversed from those in the current dispute. Importantly, in both cases, it was held that assaults on unsuspecting motorists were not part of the “ordinary course of things,” that the assaults were not part of the ordinary and well-known uses to which vehicles are put and in neither case were the injuries sustained as part of the assault covered under the Schedule as “accidents.” In my view, these cases provide authority for Intact’s position that an incident can be separated into distinct phases where one phase of an incident can be an accident that attracts limited benefits while another, more dominant phase of an incident can be an intervening assault that does not.

25For instance, in Downer, the plaintiff was assaulted by several unknown assailants while he was sitting in his car at a gas station. In the ensuing struggle, the plaintiff managed to escape by putting his vehicle in gear and driving away. He believed that he may have run over one of his assailants. He claimed psychological and physical injuries as a result of the incident and sought to recover from his insurer under the Schedule. The Court of Appeal found the plaintiff’s injuries were not directly caused by the use or operation of his vehicle, but rather were caused by an intervening act in the form of an assault that cannot be said to have been part of the "ordinary course of things." The Court did agree, however, that running over someone can fairly be considered as a normal incident of the risk created by the use or operation of a vehicle and determined that any resulting psychological impairment from such an incident could be "a direct consequence of the use or operation of his motor vehicle".

26Similarly in Martin, the plaintiff was loading his car in a parking lot after leaving work at a Toronto night club. He was assaulted by two unknown assailants in a parking lot, driven a few blocks away in his own vehicle, further assaulted and ultimately abandoned by his attackers. The Court of Appeal found that all of the senseless acts of violence against the plaintiff, except for an injury to his foot that occurred when the assailants drove away, had nothing to do with the use or operation of his vehicle. The Court held that the assaults constituted intervening acts that could not reasonably be said to be part of the "ordinary course of things" associated with the use or operation of a vehicle or a direct cause of the injuries suffered by the plaintiff, while also finding that there was a genuine issue for trial relating to the foot injury caused by the moving vehicle.

27This separation of incidents involving a vehicle into “accident” phases and “assault” phases has been adopted repeatedly and, in my view, is further illustrated in the non-binding case law submitted by Intact that I find assistive. For example, Brar v. ING Ins. Co. of Canada (finding the portion of the insured’s impairments caused by a vehicle door were an “accident”, but the balance of the insured’s impairments caused by the assailants fists were not and the vehicle only created “an atmosphere of hostility”); Golizadeh v. Motor Vehicle Accident Claims Fund (finding two distinct acts from the same incident where injuries to the face caused by a piece of thrown concrete were an assault and where injuries to the hip, thigh and leg were an “accident” because the insured was struck by and fell onto the vehicle); S.G. v. Intact Ins. Co. (finding that an assault committed by the driver of a vehicle is not an “accident” unless the vehicle was the instrument of the injury or the assault caused the vehicle to lose control); M.S. v. Certas Home and Auto Ins. (finding that an assault was severable and therefore not an “accident” where the driver exited his vehicle and was assaulted some distance away, breaking the train of causation) all support Intact’s position that the incident of November 25, 2014 can be severed into two distinct phases.

28The applicant relies on North Waterloo Farmers Mut. Ins. Co. and Samad to support her position that an accident includes a series of events that starts with the use or operation of a vehicle and ends with an assault. Samad is a FSCO case in which a taxi driver was assaulted by a passenger. He stopped the vehicle, the passengers got out and, when he went to close the van door, was pushed by one of the passengers, resulting in him slipping on ice and falling. The decision, upheld on appeal, found that it was impossible to separate the insured’s attempt to close the door, being pushed by the passenger and his slipping on the ice, which meant that it was reasonable to conclude that his attempt to close the door was the dominant feature of the incident and a well-known activity related to the use and operation of a vehicle. While I am alive to the principle highlighted by the applicant, I agree with Intact that it is not a rule of general application and find Samad is distinguishable from the facts of this case. I agree with Intact that on the facts there are no overlapping or competing events that resulted in injuries to the applicant that would make it impossible to separate, as there were in Samad.

29As noted, I find, contrary to the applicant’s position, that it is possible to separate the first phase of the incident where the applicant was struck by the car door and the second phase involving the subsequent assault that did not involve the vehicle and occurred away from it. I find the case law supports Intact’s position. While there is no doubt that the applicant suffered a senseless and truly bizarre assault on November 25, 2014, for these reasons, I find that it does not meet either of the Purpose Test or the Causation Test necessary to qualify as an “accident” under s. 3(1) of the Schedule.

CONCLUSION

30The second phase of the incident that occurred on November 25, 2014 was an assault and therefore does not meet the definition of an “accident” under s. 3(1) of the Schedule. The applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Intact Insurance Company v. [L.B.], 2018 ONSC 6546 (Div. Ct.), at para. 25.
3. 3Case Conference Order, dated May 16, 2019.
4. 4Generally, the parties are in agreement on the facts. Specific details of the incident were obtained from the transcript of the applicant’s Examination Under Oath, which was conducted pursuant to s. 33(2) of O. Reg. 34/10, dated February 27, 2017.
5. 5(2002), 217 D.L.R. (4th) (Ont. C.A.), at para. 20. [“Chisholm”].
6. 62004 CanLII 21045 (ON CA), [2004] O.J. No. 3485, at para. 11. [“Greenhalgh”].
7. 7See, Brar v. ING Ins. Co. of Canada, [2008] O.F.S.C.D. No. 68; Elensky v. Royal & SunAlliance Ins. Co. (FSCO POl-00030, May 13, 2002); Kumar and Coachman (FSCO POl-00026, August 9, 2002); 2004 CanLII 11702 (ON SCDC), [2004] O.J. No. 2494; [2004] O.J. No. 4421, [2005] S.C.C.A. No. 195; Lafond v. Allstate Insurance Co. of Canada, [2006] O.J. No. 4755; Downer v. The Personal Insurance Co. 2012 ONCA 302 [“Downer”]; Martin v. 2064324 Ontario Inc. (Freeze Nightclub), 2013 ONCA 19 [“Martin”]; Golizadeh v. Motor Vehicle Accident Claims Fund, (FSCO Al3-014896, April 10, 2015); Irving and CGC Ins. Co. of Canada, (A02-000952, May 21, 2003), (P03-00022, November 29, 2004); Lombard Gen. Ins. Co. of Canada and Liu (FSCO A01-001429, October 4, 2002); M.S. v. Certas Home and Auto Ins. Co., 2018 CanLII 140343 (ON LAT); S.G. v. Intact Ins. Co., 2018 CanLII 95561 (ON LAT); North Waterloo Farmers Mut. Ins. Co. and Samad, (P16-00037, March 2, 2017); Clarke and TTC (FSCO A11-000295).
8. 8LaFond v. Allstate Insurance Company of Canada, 2006 CanLII 40104 (ONSC).