Citation: Demers and Intact Ins. Co., 2021 ONLAT 20-008399/AABS

Licence Appeal Tribunal File Number: 20-008399/AABS

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:

Pierre Demers

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Miryam Gorelashvili, Counsel

For the Respondent:

Intact Insurance Company

Lisa Chuyow, Counsel

HEARD: In Writing

BACKGROUND

1The applicant was involved in an incident on August 29, 2018, and sought benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). Intact took the position that the incident, which involved an assault by a motorcyclist, did not constitute an “accident” as defined by s. 3(1) of the Schedule and the applicant was therefore not entitled to accident benefits. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUE IN DISPUTE

2The sole issue in dispute is as follows:

a. Was the incident on August 29, 2018 an “accident” as defined in the Schedule?

RESULT

3The incident on August 29, 2018 was not an accident under the Schedule.

ANALYSIS

The incident on August 29, 2018

4The details of the incident can be pieced together based on the signed statement of the applicant, the Crown Brief disclosure and the applicant’s testimony from an Examination Under Oath (EUO). The main plot points are as follows: on the evening of August 29, 2018, the applicant and his 15-year-old son were walking their dog close to their home when they noticed a motorcyclist revving his engine and creating noise. The motorcyclist proceeded to a roundabout near the applicant and his son, at which point the applicant walked into the middle of the road, put his arms up in the air and signaled for the motorcyclist to slow down.

5The motorcyclist brought his bike to a complete stop, approximately two to three feet away from the applicant. At this point, the applicant advised that he, to put it nicely, exchanged words in French with the motorcyclist, prompting the motorcyclist to get off his bike and purportedly threaten the applicant. A verbal altercation ensued but there was no physical contact.

6The motorcyclist got back on his bike. The parties disagree over whether the motorcyclist then proceeded towards the applicant or if the applicant walked in front of the bike. In either case, the applicant then grabbed on to the motorcycle’s handlebars from the front side of the bike and purportedly damaged the bike’s tachometer. The applicant was then pushed by the motorcyclist and struck on his forehead by the motorcyclist’s fist or, according to the applicant’s son, his motorcycle helmet, before the applicant fell to the ground.

7The applicant lost consciousness for 30 seconds to two minutes. When he regained consciousness, the applicant recalls being kicked and struck on his back and head by the motorcyclist while the applicant’s son was attempting to stop the motorcyclist from behind. At some point, the motorcycle had fallen on its side and may have still been on top of the motorcyclist but never contacted the applicant.

8Neighbours intervened and the police were called. Police charged the applicant with assault and mischief under $5,000 and charged the motorcyclist with assault with a weapon. As a result of his fall to the ground, the applicant’s prescription glasses were damaged. As a result of the incident, the applicant was diagnosed with a concussion, accompanied by severe migraines, depression, and anxiety.

“Accident” framework

9Section 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 or directly causes damage to any prescription eyewear […].”

10In Chisholm v. Liberty Mutual Group¹, 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” test. The tests were further refined by the Court in Greenhalgh v. ING Halifax Insurance Company² 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 and injuries 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.³ In Greenhalgh, the Court also addressed “but for”, “intervening act” and “dominant feature” considerations to analyze the modified causation test.

Positions of the parties

11On these facts, the applicant submits that the motorcyclist’s use and operation of the bike directly caused damage to his eyewear, meeting the definition under s. 3(1). Further, the applicant submits that the incident meets the purpose test as the incident happened as a result of the riding activity of the motorcyclist, which set in motion a train of events that resulted in his injuries. He argues that the presence of the motorcycle was the dominant feature of the claim and is not ancillary to it because the motorcyclist—and the helmet worn by a motorcyclist—are integral parts of the motorcycle and the bike was running during the assault.

12Intact submits that the applicant’s impairments were sustained as a result of an assault and not as a result of an accident, which cannot be considered to be part of the normal use or operation of a motorcycle. Further, Intact submits that the chain of events involving the motorcycle was interrupted when the motorcyclist got off the bike and threatened the applicant, which led to the applicant grabbing the handlebars, which led to the initial and subsequent assaults. Intact relies on caselaw from the Court of Appeal that has established that incidents involving assaults are not considered accidents under the Schedule.

Not an accident

13I find that the incident that occurred on August 29, 2018 was not an accident as defined by s. 3(1) of the Schedule. The case law concerning assaults and accidents is well-settled—that is, unless the vehicle itself is directly associated with a specific impairment, assaults are not considered “accidents” under the Schedule. On a balance of probabilities, I find that the incident in dispute was an assault that broke the chain of events and cannot reasonably be considered an ordinary and well-known activity to which motorcycles are put. Further, while the incident arose over a disagreement about motorcycle noise, the motorcycle did not directly cause the applicant’s impairments, meaning the causation branch of the accident test is not satisfied.

14To begin with, I find it cannot be said that an altercation and physical assault in the middle of a residential street over a disagreement about the amount of noise a motorcycle was making is part of the “ordinary course of things” involving a motorcycle. I find that the applicant made a clear decision to walk into the street into the motorcyclist’s path. A verbal altercation between the applicant and the motorcyclist ensued off the bike. The motorcyclist then got back on the bike and the applicant grabbed the handlebars of the motorcycle. The accounts of what happened next differ slightly—the motorcyclist stated that he pushed the applicant, the applicant’s son stated that the motorcyclist headbutted the applicant, one witness stated that the applicant punched the motorcyclist first, etc.—but the fact remains that the applicant’s decision to grab the handlebars of a running motorcycle and break the tachometer led to the assault by the motorcyclist that caused his impairments. While the engine was on, this incident cannot be said to be part of the “ordinary course of things” that is to be expected when operating a motorcycle. It is not ordinary for a pedestrian to stand in front of a motorcycle and grab the handlebars while the vehicle is running.

15In this vein, and in any event, it also cannot be said that the motorcycle itself caused the applicant’s impairments or that the motorcycle caused his prescription glasses to break. The applicant does not appear to make this argument, only suggesting that it is a possibility. Indeed, it is difficult to see how the assault—instigated by the applicant when he grabbed the motorcycle handlebars—was not an intervening act as contemplated by the caselaw: the initial push and tussle with the motorcyclist caused the applicant’s glasses to fall from his face, the punch and/or headbutt then led to his falling to the ground and being knocked unconscious likely causing the concussion, and the motorcyclist then punching and kicking him while he was on the ground contributed to same and likely led to his psychological impairments. The motorcycle happened to be present during the incident—and may have actually been partially on top of the motorcyclist—but I find it did not directly cause any of the applicant’s impairments or break his glasses.

16The applicant urges the Tribunal not to compare his claim to other claims involving regular motor vehicles. Instead, the applicant asks the Tribunal to analyze the claim by taking into consideration the “distinct design of motorcycles” but provided no authority to support his position that a motorcycle invites a unique analysis different from the well-settled purpose and causation tests identified above. Motorcycles are included in the definition of “motor vehicles” under the Highway Traffic Act, R.S.O. 1990, c. H.8, and, by extension, the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25. There is no statutory basis to treat motorcycles differently than other motor vehicles. In any case, this argument takes a very simplistic view of the incident and ignores the mountain of case law that confirms that assaults are not covered under the Schedule. Punching, pushing or headbutting someone is an assault and not an “accident” regardless of whether it occurs on or around a motorcycle. This is especially so where the motorcycle in question was not the direct cause or the dominant feature of the applicant’s impairments.

17As a starting point, the applicant directed the Tribunal to L.L. v. Intact Insurance Company, 2019 CanLII 18331 (ON LAT) for support, but failed to appreciate that the Divisional Court quashed that decision and sent it back to the Tribunal for a new hearing⁴, where I determined that the incident—which involved a random assault after a verbal confrontation over a parking space—constituted an intervening act that was not an accident.⁵ The applicant also cited to Economical Mutual Insurance Company v. Caughy, 2016 ONCA 225, which is helpful for assessing the purpose test, but is not assistive here as there was no assault in that case, even if it involved a parked motorcycle. The Tribunal case 16-000131 v. TD Insurance Meloche Monnex, 2017 CanLII 42827 (ON LAT) cited by the applicant is also not assistive, as there was no assault, but rather the applicant tripped and fell into a parked vehicle.

18I am persuaded instead by Intact’s submissions on case law and follow the line of Court of Appeal cases it relied on, namely Chisholm and Downer v. The Personal Insurance Co., 2012 ONCA 302. In 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. First, it is clear that there was an intervening event—the assault that was instigated by the applicant when he grabbed the motorcycle handlebars—that broke the chain of causation. Second, and in any event, as in Chisholm, it cannot be said that the motorcycle was the cause of the applicant’s injuries.

19Similarly, 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 Tribunal has consistently followed the line of reasoning that incidents involving assaults are not accidents.⁶ I see no basis to depart from that reasoning here.

20Even 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.” Here, I agree with Intact that the motorcyclist’s push, punch and/or headbutt and subsequent kicking and punching of the applicant on the ground were the direct cause of the applicant’s impairments and broken glasses and not the proximity of the motorcycle to the incident or that fact that it was running at the time.

21To borrow from para. 49 of Greenhalgh, I find the physical assaults by the motorcyclist and the applicant’s fall to the ground 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. The applicant provided no authority for the proposition that a motorcyclist (or a motorcyclist’s helmet) is an extension of a motorcycle. In the absence of binding authority, I am not prepared to extend the scope of the accident test in this manner. For these reasons, I find that the applicant has failed to demonstrate that the incident that occurred on August 29, 2018 meets the definition of an “accident” under s. 3(1), as it was an assault that does not meet either of the purpose or causation tests.

ORDER

22The incident of August 29, 2018 was not an accident under the Schedule.

Footnotes

1. 12002 CanLII 45020 (ON CA), at 17. [“Chisholm”].
2. 22004 CanLII 21045 (ON CA), at 11. [“Greenhalgh”].
3. 3Downer v. The Personal Insurance Co., 2012 ONCA 302.
4. 4Intact Insurance Company v. Lanziner-Brackett, 2018 ONSC 6546 (Ont. Div. Ct.).
5. 5L.L.B. v. Intact Insurance Company, 2020 CanLII 95904 (ON LAT).
6. 6See, for e.g., S.G. v. Intact Ins. Co. 2018 CanLII 95561 (ON LAT) (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., 2018 CanLII 140343 (ON LAT) (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); Baldinelli v. Aviva Insurance Company, 2021 CanLII 19495 (ON LAT) (finding that a series of random assaults in and around three separate vehicles were not accidents because the incident did not occur in the ordinary course of things and causation could not be established).