Citation: Amrok v. Economical Insurance Company, 2021 ONLAT 20-007816/AABS

Release date: 11/05/2021

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:

Jashandeep Singh Amrok

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Jason Frost, Counsel

HEARD by Videoconference:

May 19, 2021

OVERVIEW

1The applicant was involved in an incident on July 10, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ A dispute arose between the parties as to whether the incident was an “accident” within the meaning of the Schedule. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUE

2The issue to be decided in this hearing is whether the incident which occurred on July 10, 2018 was an “accident” under s. 3(1) of the Schedule.

RESULT

3The incident which occurred on July 10, 2018 was not an “accident” under s. 3(1) of the Schedule.

BACKGROUND

4Around midnight on July 10, 2018, the applicant was driving home from work when he inadvertently cut off a pickup truck on the highway. The two vehicles engaged in aggressive driving behaviours including tailgating, brake checking, cutting each other off, flashing lights and honking horns. The truck followed the applicant after he left the highway onto residential streets. The truck cut his vehicle off and forced him to stop in the middle of the road, blocking him from moving. The applicant put his car in park, with the engine still running and remained in the vehicle with the window open. The other driver got out of the truck, yelling and swearing at the applicant. The applicant opened the door and put his leg out but did not exit. The other driver attempted to close the door, causing it to strike the applicant’s leg. The driver then reached through the open window and punched the applicant in the face, breaking his nose and glasses. The driver fled the scene. The applicant called 911 and an ambulance took him to hospital where he was treated for a broken nose.

5The other driver was arrested by police and was charged with assault causing bodily harm.

6In a statutory declaration, the applicant describes the incident as a road rage incident and being punched in the face. He lists his injuries as broken nose, a swollen eye, whiplash from the punch and concussion, and that he is afraid to drive.² The applicant testified that there was a little bruising on his leg from the car door, but it “wasn’t a big issue”.

ANALYSIS

7Section 3(1) states that an “accident” means an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.

8In Chisholm v Liberty Mutual Group,³ the Court of Appeal set out a two-part test for determining whether an incident was an “accident” as defined by the Schedule, known as the “Purpose Test” and the “Causation Test”. The test was refined further by the Court in Greenhalgh v. ING Halifax Insurance Company⁴ requiring the insured to satisfy both branches of the modified test:

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

ii. The Causation Test:

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

b. Was there an intervening act or acts that resulted in the injures that cannot be said to be part of the “ordinary course of things”?

Positions of the Parties

9The applicant submits that the incident that occurred was an accident that meets both Purpose and Causation Tests. He relies on Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), Chisholm, and ICBC v. Garnier, 2007 BCSC 265 in support of his position that he was using his vehicle for its ordinary and well-known purpose of driving when he was assaulted following the road rage incident because the assault would not have happened but for the road rage incident.

10The respondent submits that neither the Purpose nor Causation Test are met. The respondent submits that the described incident was road rage which concluded with a punch to the face, which is not ordinary use of a vehicle. The respondent submits that the use or operation did not result in any impairment, but rather any impairment suffered by the applicant was as a result of the punch to the face -- an intervening event.

11The respondent relies on several cases involving assault that it submits clearly establish that an assault is an intervening act that breaks the chain of causation, making it so the use or operation of the vehicle was not the cause of the applicant’s injuries: Kumar v. Coachman Insurance Co.,⁵ Kamel v. TD General Insurance Co.,⁶ Downer v. The Personal Insurance Company,⁷ Martin v. 2064324 (Freeze Night Club),⁸, 17-002640 v. Intact insurance Company,⁹ M.S. v. Certas Home and Auto Insurance Company,¹⁰ 18-002501 v. Intact Insurance Company,¹¹ L.L.B. v. Intact Insurance Company,¹² Michael Moore v. Certas Direct Insurance Company,¹³ Wright v. Northbridge General Insurance Company,¹⁴ Rochford v. Unifund Assurance Company, Baldinelli v. Aviva Insurance Company,¹⁵ and Lindo v. Echelon General Insurance Company.¹⁶

12The respondent submits that the vehicle was no more than the location of the assault, and that the use or operation of a motor vehicle was not the cause of his injuries, but rather his injuries were caused by the assault.

Not an Accident

13I am persuaded by the respondent’s submission and the line of cases it relied on. I find that the incident that occurred on July 10, 2018 was an assault, not an “accident” as defined by the Schedule.

14The applicant’s claim fails both the Purpose Test and the Causation Test. A vehicle did not cause any of the applicant’s impairments, and it cannot be said that the applicant’s impairments from the assault were directly caused by the vehicle or that they resulted from the “ordinary and well-known use” of it just because he was in his vehicle. The use or operation of a motor vehicle was not the direct cause of the impairment, but rather was caused by the intervening act – an assault from a third party.

The Caselaw

15The applicant relies on Amos. While the Purpose and Causation Tests do flow from that decision, it is no longer good law in Ontario because it included ownership of the vehicle, not just use or operation, and also considered indirect causation.

16Similarly, ICBC v. Garnier which the applicant cited is also inapplicable as the BC law allowed for indirect causation. At paragraph 21 and 24 of the decision, the court notes that the Ontario cases were governed by more restrictive legislation with a different definition.

17Both parties rely on the Ontario Court of Appeal decision in Chisholm.¹⁷ In that case, the applicant was injured in a drive-by shooting while in his car. The Court of Appeal determined that the shooting was not ordinary use or operation of a vehicle. Chisholm emphasizes that even if the use of an automobile may be said to be a cause of an insured’s injuries, an intervening event can break the chain of direct causation. The Court held that the dominant feature of Chisholm’s claim was the gunshots. The use or operation of his car was at best ancillary.

18Both parties also cited Greenhalgh. The insured was driving her car on a cold January night when she took a wrong turn and got stuck. Her mobile phone was dead, and she decided to try and walk to seek help. She became disoriented in the dark woods, walked for nine or ten hours and along the way fell in an ice-covered river and lost her boots. As a result of exposure to the extreme cold, the insured suffered severe frostbite requiring amputation of her fingers and legs below the knees. The Court of Appeal found that the dominant feature of the insured’s injuries was best characterized as exposure to the elements, and the use of the motor vehicle was ancillary to the injury.

19Following the analysis in Chisholm and Martin, it is not enough to show that an automobile was somehow involved in the incident giving rise to the applicant’s injury. The use or operation must have directly caused the injury. I find the applicant’s car was nothing more than the venue where the assault occurred. The injury did not arise out of the ordinary and well-known activities for which automobiles are used.

20Even if I am wrong and the applicant can satisfy the Purpose Test, the applicant’s claim fails the Causation Test. The use or operation was not a “direct cause” of his injuries. I find that there was an intervening act – an assault – outside the “ordinary course of things” associated with the use or operation of the vehicle, which resulted in the applicant’s injuries. The act of being punched in the face is a form of assault, and the use or operation of the vehicle was ancillary to the assault.

21Without the assault taking place, the applicant would not have suffered his injuries, and that interrupted or broke the chain of events from his ordinary use of the vehicle. In my view, the assault was an intervening act that took place and was the direct cause of the applicant’s injuries. The vehicle was not the dominant feature of this incident – the assault was.

22Downer involved a plaintiff who was assaulted by several assailants while parked at a gas station, seated in his car with the engine running. On appeal from a motion for summary judgement, the court held that the physical assault on the plaintiff did not meet the definition of an accident. The court allowed the applicant to proceed to trial on his claim for benefits based on psychological impairments arising from his evidence that he ran over someone during the incident.

23Following the analysis in Martin, I see no basis to distinguish the applicant’s alleged physical injuries from his alleged psychological issues. The psychological injuries asserted by the applicant allegedly resulted from the assault he sustained. Unlike Downer, there is no suggestion that they were triggered by the use or operation of his vehicle. Furthermore, I am not persuaded that the applicant suffered the driving phobia he alleges given that there are zero entries in the medical evidence provided to indicate driving phobia, as well as the applicant’s evidence that he worked as a driver for both Uber and FedEx after the incident.

24The other decisions cited by the respondent in support of their position all held that the use of operation of the vehicle was a not a direct cause of the insureds’ injuries. I agree with the respondent that similar fact cases illustrate that the assault and not the operation of the vehicle in this incident was the “dominant cause” of the applicant’s impairment. In this case, I find that an intervening act occurred, which was the assault that caused the impairments and not the use or operation of the vehicle.

CONCLUSION

25As such, I find that the incident which occurred on July 10, 2018 is not an “accident” as defined by the Schedule.

Footnotes

1. 1O.Reg. 34/10.
2. 2Exhibit 1 Tab 2 page 16.
3. 3Chisholm v. Liberty Mutual Group CanLII 45020 (ONCA) at 17. [“Chisholm”]
4. 4Greenhalgh v. ING Halifax Insurance Company 2004 CanLII 21045 (ONCA) at 11. [“Greenhalgh”]
5. 52004 CanLII 11702 (ON SCDC).
6. 62007 CarswellOnt 7814 (FSCO).
7. 72012 ONCA 302.
8. 82013 ONCA 19.
9. 92018 CanLII 95561 (ON LAT).
10. 102019 CanLII 94043 (ON LAT).
11. 112019 CanLII 43895 (ON LAT).
12. 122020 CanLII 95904 (ON LAT).
13. 132020 CanLII 87994 (ON LAT).
14. 142020 CanLII 98749 (ON LAT).
15. 152021 CanLII 19495 (ON LAT).
16. 162021 CanLII 19408 (ON LAT).
17. 17Note: the applicant cited the correct case in the index of their Book of Authorities, but the attached decision was actually the Superior Court ruling.