Released Date: October 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:
Joan Wright
Applicant
and
Northbridge General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Derek Grant
For the Applicant:
John Wowk, Counsel
For the Respondent:
Ryland MacDonald, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant (“J.W.”) was involved in an incident on October 5, 2019. She was riding on an ATV and was shot in her left hand.
2J.W. applied for accident benefits to the respondent, Northbridge General Insurance Company (“Northbridge”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”).
3Since this is a preliminary issue hearing, if J.W. is unsuccessful at this stage, she will not be entitled to any benefits sought under the Schedule with respect to injuries that resulted from the incident.
4If J.W. is successful at this stage, the Tribunal will notify the parties, and a case conference will be scheduled to address the substantial issues in dispute.
PRELIMINARY ISSUE
5The following preliminary issue is in dispute:
a. Do J.W.’s injuries sustained as a result of an incident that occurred on October 5, 2019 meet the definition of an “accident” as defined under the Schedule?
RESULT
6For the reasons that follow, I find J.W. was not involved in an “accident” as defined by section 3(1) of the Schedule. As a result, J.W. is not entitled to claim accident benefits under the Schedule.
BACKGROUND
7J.W. submits that on October 5, 2019, she was riding as a passenger on an All-terrain Vehicle (“ATV”). As she was riding along a logging road, J.W. saw her husband hunting approximately 200 yards from her location. J.W. heard a gun shot and immediately realized she had been hit in the left hand with a bullet. The bullet came from the rifle being used by J.W.’s husband.
8In the Examination Under Oath1, J.W. stated that the ATV was stopped at the time of the incident. She testified that she did not fall over or hit any part of her body on the ATV as a result of being shot.2 J.W. also testified that her left-hand injury was the only physical injury she sustained as a result of the incident.3
LAW
9Section 3 (1) of the Schedule provides the following definition of an “accident”:
a. “accident” means an incident in which the use or operation of an automobile directly causes an impairment
10The onus is on J.W. to show that the use or operation of the vehicle directly caused her injuries.
ANALYSIS
11For the reasons that follow, I find that J.W. was not involved in an “accident” within the meaning of the Schedule and is not entitled to accident benefits.
12The Court of Appeal has set out a two-part test in order to establish whether an insured was involved in an “accident”, both parts of the test must be established:4
a. Purpose test: Did the incident arise out of the use or operation of an automobile?
b. Causation test: Did the use or operation of an automobile directly cause the impairment?
13The parties agreed that the purpose test was met in the subject proceeding. Therefore, I am asked to determine if the causation test has been satisfied.
Causation test: Did the use or operation of the ATV directly cause the impairment?
14The Court of Appeal has set out the criteria in order to determine causation with the following:
If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things”. In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the injuries?5
15I find that J.W. has not met her burden to establish that this incident meets the criteria set out in the causation test. The shooting took place while J.W. was engaged in the ordinary course of the use of the ATV. However, the use or operation of the ATV has ended at this point.
16J.W. makes no submissions on whether the operation of the ATV on which she was riding caused her injury. Her submissions focus on her husband’s operation of his ATV at the time of the incident. In the subject proceeding, I find that the use or operation of the ATV is no longer in effect because the cause of her injury was the result of being shot. There is no evidence that the incident or J.W.’s injuries satisfies the causation test.
17The courts have developed a three-part analysis to determine causation:
a. The “but for” consideration;
b. Was there an “intervening act”; and
c. Was the vehicle the dominant feature?
A. The “but for” consideration
18The “but for” consideration is used as a “process of elimination” measure to eliminate scenarios that are not relevant. As a stand-alone criterion, the “but for” consideration does not determine causation. I disagree with J.W. that this incident satisfies this measure; that “but for” J.W. riding on the ATV, this incident would not have occurred.
19Although J.W. argues that the use of an ATV for hunting in rural areas is part of the “ordinary course” of the use of ATVs, this does not satisfy the “but for” test. There is no plausible evidence that establishes being a passenger on an ATV increases the likelihood of being shot regardless of the area the ATV is being used in.
B. Was there an intervening act?
20I find the shooting was an intervening act that broke the chain of causation which lead to J.W.’s injuries. Based on the evidence, I am unable to determine that the use or operation of the vehicle contributed to J.W.’s injuries. Although the ATV was in the area of where the shooting took place, the shooting did not occur as a result of the “normal use or operation of the vehicle”.
21J.W. relied on Chisholm v. Liberty Mutual Group6 in support of her position that the intervening act of being shot was a part of the “ordinary course of things”. Further, that the risk of being accidentally shot is “most definitely part of the ordinary risks associated with hunting on ATVs”. In Chisholm, the applicant sustained injuries as a result of a drive-by shooting. The Court concluded that “gun shots from an unknown assailant can hardly be considered an intervening act in the ordinary course of things. The gun shots were the direct cause of his impairment, not the use of his car”.
22Although J.W. relies on the portion of Chisholm where the Court comments on intervening acts, taken in full context, J.W.’s argument fails. The Court explained that “even accepting that the use of Chisholm’s car was a cause of his impairment, a later intervening act occurred. He was shot. An intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use of operation of the car – if it is part of the ordinary course of things”.
23J.W.’s submits that unlike in Chisholm, this incident was not a random act of shooting. That this is the “unfortunate realization of an ordinary accepted risk of riding ATVs, in a hunting area”. J.W.’s position is that the use of ATVs in rural areas for hunting can lead to increased likelihood of being shot. J.W. offers no expert evidence on this point, the only evidence put forth are photos of J.W.’s husband’s ATV and stock photos of ATVs with gun racks. None of the aforementioned evidence is supportive or persuasive of the unfortunate incident of J.W. being accidentally shot, being part of the “ordinary course of things” while being on an ATV at the time.
24As such, I find that the shooting breaks the chain of causation and is an intervening act.
C. Dominant feature
25J.W. does not specifically address the dominant feature part of the criteria. J.W. argues that it was the use and operation of the motor vehicle that satisfies the causation and purpose tests. I disagree. As was set out in Chisholm and Greenhalgh, “It is not enough to show that an automobile was somehow involved in the incident giving rise to the injury,” the Court of Appeal noted. “Rather, the use or operation of the automobile must have directly caused the injury.”7 The dominant feature was that J.W. was shot. At no time was: a) the shooting a part of the ordinary use or operation of a motor vehicle, or b) J.W.’s injuries directly caused by the use or operation of the ATV.
26I find that the evidence does not persuade me that the ATV was the dominant feature of the subject incident. There is no medical evidence submitted that establish that J.W.’s injuries were caused by the normal use or operation of the vehicle, outside of any intervening act. I find the shooting was the dominant feature of the incident, not the ATV.
CONCLUSION
27For the reasons above, the application is dismissed.
Released: October 27, 2020
__________________________
Derek Grant
Adjudicator
Footnotes
- Respondent Document Brief – Tab 1 - Transcript of Examination Under Oath of J.W. dated December 18, 2019 at paras. 17-30
- Supra at paras. 76-79
- Supra at paras. 245-246
- Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), 2002 Carswell Ont 2652, [2002] O.J. No.3135. See also Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426, [2004] O.J. No 3485.
- Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426 (Ont. C.A.)
- Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”)
- Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), 2002 Carswell Ont 2652, [2002] O.J. No.3135. See also Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 2004 Carswell Ont 3426, [2004] O.J. No 3485.