Travis v. Aviva Insurance Company, 2021 CanLII 120883

Citation: Travis v. Aviva Insurance Company, 2021 ONLAT 20-004822/AABS

Licence Appeal Tribunal File Number: 20-004822/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:

Jeff Travis

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Jeff Travis, Applicant

Alexander Voudouris, Counsel

For the Respondent:

Pam Beukeboom, Representative

Mohamed Hashim, Counsel

Pamela Quesnel, Counsel

Court Reporter:

Giles Timgey

HEARD by Videoconference:

May 12, 2021 followed by written submissions

OVERVIEW

1The Toronto van attack was a terrorist vehicle-ramming attack that occurred on April 23, 2018, when a rented Ryder van driven by John Doe¹ along Yonge Street targeting innocent pedestrians in an act of senseless misogynist violence. The incident left 10 people dead, 16 injured and forever changed the lives of many innocent families, bystanders and first responders including the applicant, a fire fighter, who rushed to the scene to tend to the injured and comfort the dying.

2In this case, the applicant alleges that he sustained psychological impairments as a result of dealing with the aftermath of this attack. He sought accident benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').² The respondent denied entitlement to accident benefits on the basis that the applicant was not an insured person nor involved in an accident pursuant to the definition an “accident” under s. 3(1) of the Schedule. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

3The applicant did not testify at the video portion of the hearing. Instead, applicant’s counsel chose to rely on the Examination Under Oath (“EUO”) transcript of the applicant. No other witnesses were called, and the parties relied on the written and oral submissions and evidence including the EUO as filed.

4After the completion of the hearing, applicant’s counsel submitted a recent Tribunal decision for my consideration.³ Both parties were able to make additional brief written submissions on this case which I have considered.

5As well, after the hearing was completed, during my deliberations, I became aware that one of the main cases relied on by the parties P.F. v. Economical Mutual Insurance Company⁴ was the subject of an application for judicial review to the Divisional Court and advised the parties on August 10, 2021 that the Tribunal would wait for the Divisional Court decision as long as it was a reasonable amount of time. However, it has now been over 3 months and the decision still has not been released and I am not certain when it will be issued. As a result, it would be fair, just, and expeditious to issue my decision now to avoid further delay and, certainly, it is open to the parties to seek reconsideration after my decision has been released and provide further submissions.

ISSUE IN DISPUTE

6The issue to be decided as set out in the case conference order is:

1. Is the applicant, as a first responder, entitled to accident benefits on the basis that he was involved in an incident in which the use and operation of an automobile directly caused an impairment?

7My difficulty with the issue as defined in the case conference order is that it fails to clarify the true nature of the dispute. What is actually in dispute is the question of whether the applicant was involved in an “accident” as the term is defined in the Schedule. Indeed, upon receipt of the Application for Accident Benefits (OCF-1) from the applicant, the respondent’s denial letter of December 3, 2019, make clear that the reason for the denial was that the applicant was not involved in an accident as a first responder on the scene. Additionally, the application form filed by the applicant with the Tribunal dated March 16, 2020 under the ‘Issues in Dispute’ section, identifies the issue and states that “the insurer has denied the Applicant’s OCF-1, on the basis that he was not eligible to accident benefits, arguing that he was not involved in an accident. The issue in dispute will be whether first responders are involved in an accident they attend to.”

8The main consideration is therefore whether the applicant meets the definition of having been involved in an “accident”. From this flows entitlement to the accident benefits that the issue as stated in the case conference order refers to. Section 3(1) defines an accident as an incident in which the use or operation of a motor vehicle directly caused impairment.

9To avoid confusion, the issue which the parties have addressed in their submissions,⁵ needs to be restated:

1. Whether the applicant was an insured who was involved in an “accident” as that term is defined in s. 3(1) of the Schedule?

RESULT

10The applicant was not an insured person involved in the accident that occurred on April 23, 2018 in order to meet the definition of accident under s. 3(1).

11My detailed reasons for this conclusion follow.

AGREED FACTS

12The parties agreed on some facts of the case and produced a brief agreed statement of facts as follows:

1. The applicant sustained a psychological impairment as a result of the incident which occurred on April 23, 2018.

2. The respondent admits the authenticity only of the EUO transcript and the medical reports of Ms. Humayun and Dr. Feinstein.

ANALYSIS

What Happened to the applicant?

13The applicant is a first responder, a senior firefighter for the City of Toronto. On April 23, 2018, at approximately twelve noon the applicant’s fire station received a call to respond to an incident. The applicant stated the call may have indicated he was responding to a pedestrian strike. He proceeded to board and drive one of two fire trucks from his station to attend the scene. However, the applicant did not see the van strike pedestrians and confirmed during his EUO that “I did not see it strike a pedestrian.” When the applicant eventually stopped the fire truck, he stated he saw multiple police officers with machine guns in hand, as well as victims on the ground. At the scene, the applicant indicated that he assisted with the medical equipment, donned his protective gear, and began attempting to assist. He may have moved his truck at the scene several times but at that point the accident had already occurred. In total, he estimated that he attended at the scene for ten hours which was spend waiting and guarding the bodies of the victims and helping the injured and was told not to leave due to the area now being considered a crime scene.

14Following the incident, the applicant stopped working in and around September 2018 and received psychological therapy through the Workplace Safety and Insurance Board (“WSIB”). He was diagnosed with Major Depressive Disorder, Moderate to Severe, and Post-traumatic Stress Disorder.⁶ Around December 2019, he was recommended to return to work on a gradual basis and WSIB wrote the applicant offering a modified duty position starting January 21, 2020. However, the applicant disagreed with the assertion that he was capable of a gradual return to work and decided to “de-elect” from the WSIB regime.⁷ Again, the respondent concedes that the applicant did suffer a psychological impairment as a result of the incident, so this is not in dispute.

Relevant Legislation and Case Law

15Under s. 3(1) of the Schedule, an “insured person” means, in respect of a particular motor vehicle liability policy, (a) the named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of the named insured and a dependant of the named insured or of his or her spouse,

(i) if the named insured, specified driver, spouse or dependant is involved in an accident in or outside Ontario that involves the insured automobile or another automobile; or,

(ii) if the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant, or spouse’s dependant.

16Section s. 2(3) of the Schedule provides that the benefits set out in the regulation shall be provided in respect of “accidents.” To be eligible for benefits, the applicant must prove the incident meets the definition of an accident under subsection 3(1) of the Schedule. An accident is defined as:

“an incident in which the use or operation of an automobile directly causes an impairment …” [emphasis added]

17Notably, unlike its predecessor statutes, the incident must directly cause an impairment. The effect of eliminating the words” or indirectly” in the definition of accident in the 1996 amendments to the Schedule was to narrow and render stricter the causation requirement for the receipt of accident benefits.

18Both parties cite the Court of Appeal for Ontario’s decisions in Chisholm v. Liberty Mutual Group,⁸ and Greenhalgh v. ING Halifax Insurance Co.,⁹ for the two-part test that adjudicators must consider when interpreting the definition “accident: within the meaning of s. 3(1) of the Schedule. The two questions to be considered are:

1. Did the incident arise out of the ordinary and well-known activities for which automobiles are used? (“Purpose Test”.)

2. Did such use and operation of the automobile directly cause the impairment? (“Causation Test.”)

19The first stage of the test is a determination of whether the incident in question involves “the ordinary and well-known activities to which automobiles are put”.¹⁰ The second stage then requires the adjudicator to determine if these activities were the direct cause of the impairment by considering the following factors: the “but for” consideration; the “intervening act” consideration; and the “dominant feature” consideration.¹¹

20Additionally, the Ontario Court of Appeal, in Downer v. The Personal Insurance Company¹² noted that proximity and location are not enough to satisfy the causation test and stated that under the modified causation test from Chisholm and Greenhalgh, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.

21Finally, it is well established that the applicant has the onus¹³ of establishing that he is an insured person involved in an “accident.” He must satisfy both the purpose and causation tests to constitute an accident.

22The above principles are not in dispute in this application, only their application to the unique circumstances of this case. Both parties have referred me to extensive case law in support of their respective positions. Many cases are distinguished because they are highly fact specific including several that refer to physical injuries resulting from a chain of events directly stemming from the accident. Whereas here the applicant sustained only psychological injuries from witnessing the aftermath of the accident as a first responder and he did not witness the van strike pedestrians. Both parties also acknowledged in their oral submissions that they have been unable to locate any decisions directly on point dealing with a first emergency responder incident.

23However, I find P.F., cited by both parties, one of the most relevant Tribunal decisions on this issue and persuasive. Briefly, in P.F. the claimant was the operator of a vac-truck that responded to a fatal tractor-trailer collision and alleged that, as a result of cleaning up the spilled substances resulting from the accident and seeing the deceased bodies, he suffered from both physical and psychological injuries. The Tribunal held that the applicant was not able to prove that he meets both purpose and causation tests mainly because it found that the vehicle was not the cause of the injuries. Rather it was the exposure to the toxic flammable substance for an extended period of time. The Tribunal concluded that there was a lack evidence to demonstrate that the exposure to the flammable liquids while using the vac-truck was the primary cause of the impairment because if you remove the vac-truck the applicant would still have been exposed to the harmful substances over a 12-hour period of time. Therefore, it could not be the use and operation of the vac-truck that directly caused the impairments. This decision was upheld on reconsideration albeit by the same adjudicator.¹⁴

24Similar to this case, in P.F., the applicant argued that the incident can be viewed in two separate ways - whether the fatal tractor-trailer collision was an accident or whether the use and operation of the vac-truck qualified as an accident. In her decision, adjudicator Lester noted that the applicant merely attended the accident scene after an accident had already occurred. She stated, that “when a vehicle ceases being used as automobiles, we cannot expect the insurance companies to provide coverage.”

25During final oral submissions, applicant’s counsel submitted that the adjudicator in P.F. got this decision wrong and that the Tribunal did not consider the case law relied upon here. The applicant’s counsel also argued that P.F. is distinguishable. Namely, that the applicant’s involvement did not start after the fact, but rather when he was first dispatched, while van was still in use and his involvement continued while he was driving the firetruck and while the van was still in use.

26In any event, I am not bound by P.F. but find it persuasive as it does involve the same issue, same legal test, and similar fact situation in that a rescue worker developed psychological impairments after helping at an accident scene. As well, in P.F. the Tribunal determined that attending an accident by a first responder in that case was not captured under the Schedule and also noted, in obiter, that first responders were not contemplated or anyone who was injured while passing by the accident to claim for accident benefits.

27In the end, although P.F. is of assistance, each case must still be decided on its particular set of facts and the question still remains whether the applicant was an insured involved in an accident within the meaning of s. 3(1). I conclude no and I am of the view that the applicant fails to satisfy the Purpose and Causation Tests both in both scenarios (i.e., the van and fire truck) put forth.

Positions of the Parties and Analysis

28In this matter, the agreed facts disclose that the applicant did sustain a psychological impairment as a result of the incident. However, they disagree whether the applicant was involved in an “accident” as the term is defined under the Schedule and therefore qualifies as an insured person for accident benefits.

29As I understand the applicant’s position, he argues that the incident can be viewed in two separate ways with two different vehicles and two causes:

1. Ryder van - First, was the applicant’s involvement in the Toronto van attack and seeing the carnage resulting in the use and operation of the Ryder van, which directly caused the applicant’s psychological impairments, an accident?

2. Fire truck - Second, was the applicant’s use and operation of the fire truck while hearing the frantic dispatch calls as he drove, nearly striking the Ryder van, arriving at the site of chaos and carnage, moving the truck to attend to people, and using the truck to guard the scene while observing dead bodies an accident?

30The applicant must show he meets the two-prong test in each scenario – he was responding to John Doe’s use and operation of a motor vehicle (the van), and he was himself using and operating a motor vehicle (the fire truck). Unfortunately, the applicant does not address each scenario under each test separately in his submissions and commingles the two scenarios in a way that is difficult to follow and decipher whether he is referring to the Ryder van or the fire truck and under what situation and guiding considerations or test he is referring to and how it applies to each case. For example, paras. 41-54 of the applicant’s main submissions refer the Purpose Test but alternate between referring to John Doe driving the Ryder van and the applicant himself operating the fire truck and are unclear on how he meets each part of the test.

31The applicant, citing Smith v Cooperators¹⁵ and Tomec v Economical Mutual Insurance Company¹⁶, would like me to interpret the regulation in a broad and liberal manner as it is a consumer protection legislation. As such, it is to be read in its entire context and in their ordinary sense harmoniously with the scheme of the Insurance Act (“Act”), the object of the Act, and the intent of the legislature. I agree with the applicant on this point, and I have considered this perspective when interpreting whether he was involved in an accident.

32In response, the respondent submits that the applicant does not qualify as an “insured person” in relation to the incident that occurred on April 23 2018 as he was not “involved” in an “accident” even though they do acknowledge that he did suffer psychological injuries.

33In accordance with the definition of an “insured person” under s. 3(1)(a)(i), in order to be eligible for accident benefits, the applicant must establish that he was “involved” in an accident or, if he was not “involved”, he must have sustained his psychological impairment as a result of the involvement of a spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant under s. 3(1)(a)(ii).

34With respect to this case, first, the applicant must prove his own involvement in the accident, as there is no evidence before me that he is related to anyone who was involved, and he has not submitted that there is a family connection. Therefore, I find he cannot rely on the family exception to be eligible for accident benefits as provided by s. 3(1)(a)(ii) because he is not related to anyone involved in the incident.

35Second, even on a generous interpretation of what occurred, I find the facts do not support the purported scope of the applicant’s involvement in an accident. I agree with the respondent that the applicant was not “involved” in the accident that occurred on April 23, 2018, despite the applicant’s position that he was involved as a would-be first respondent dealing with the aftermath of this attack and helping the victims.

Scenario 1 – Ryder Van: Does the applicant’s involvement in the incident seeing the carnage resulting in the use and operation of the Ryder van directly caused the applicant’s psychological impairments constitutes an accident?

Purpose Test: Did the incident arise out of the use or operation of an automobile?

36The purpose component will be satisfied where the vehicle in question (i.e., the van) is being operated in a manner that is consistent with the ordinary use and well-known activities of vehicles. The term “use or operation of an automobile” must be broadly interpreted to mean its ordinary and well-known uses.¹⁷ The test is to be applied in a contextual manner.¹⁸ The reasoning was explained by Binnie J. in Citadel General Assurance Co. v. Vytlingam,¹⁹ as follows:

…the ordinary and well-known activities to which automobiles are put was simply that someone who uses a vehicle for a non-motoring purpose cannot expect to collect motor vehicle insurance. If, for example, a claimant got drunk and used her car as a diving platform from which to spring headfirst into shallow water, and broke her neck, she could not reasonably expect coverage from her motor vehicle insurer, even though, in a sense, she “used” her motor vehicle.

37In simple terms, the purpose test is intended to answer the question of whether, through ordinary use, a vehicle was involved in the incident. In other words, for what purpose was the automobile being used or operated at the relevant time? Did the incident arise out of the ordinary and well-known activities to which automobiles are put? I find that in this case it was not.

38The applicant submits that John Doe driving the Ryder van meets the Purpose Test because driving is not only an ordinary and well-known activity to which automobiles are put, but it is the primary purpose. As well, the applicant explains that even though John Doe struck people intentionally, using the vehicle as a weapon does not change this from the perspective of those who suffered injuries and impairments as a result. Here, seeing, hearing, and witnessing the carnage all around him caused by the van resulted in the applicant’s impairment.

39The respondent argues that the Purpose Test is not satisfied as the use of a vehicle to implement a misogynist terror attack is not the ordinary and well-known activities that an automobile is put through. The respondent argues that this Tribunal should not normalize any such part of this incident. The crime was abhorrent and is clearly outside the confines contemplated by the test.

40A review of some of the case law submitted by the parties is worth reviewing to illustrate the Purpose Test. In Greenhalgh the Court of Appeal stated that “… in Chisholm, the purpose test was not in issue; [but] it was obviously satisfied in that case as Mr. Chisholm was actually driving his car”.²⁰ As well in Greenhalgh, the court referred to the Incerto Estate v Landry²¹ decision, where, the driver of a vehicle that had become stuck in a gravel rut got out in order to push the car out and was run over by the car and killed. The Court held that “this accident resulted from an ordinary and well-known activity of an automobile, namely that Landry drove the car off the road and into a ditch.”

41The Court of Appeal in Greenhalgh, also gave as a further example of an unforeseen or unprecedented use an accident which arose where an insured attempted to lift his car solely to show his strength, thereby hurting his back.

42The applicant relies on Whipple v Economical Mutual Insurance Co.,²² where a group rented a limo bus, and an insured attempted a head stand inside a moving vehicle on a highway against a stripper pole and fractured his neck rendering him a quadriplegic. The purpose test was the most relevant test in that case. This case is relevant for two main reasons. First because it deals with an apparently obvious aberrant situation – the headstand falls so far outside of what is expected in an insurance contract which normally the Purpose Test would exclude (it seems the incident was less aberrant than treating a car as a diving platform or where an insured attempted to lift his car solely to show his strength, thereby hurting his back).

43Yet the Arbitrator in Whipple found that Mr. Whipple’s headstand met the purpose test of an “accident” holding that the activities around the stripper pole were “part of the ordinary course of things” for the party bus, and the integral stripper pole, was used for the purpose it was designed. Thus, Mr. Whipple’s actions can be seen as occurring in the course of the ordinary and well-known activities of that particular limo bus. In doing so, the Arbitrator looked closely at the particular vehicle that was involved in the incident (the party limo) to see what type of ordinary and well-known activities that vehicle could be put to. In that case, the vehicle was marketed as a party vehicle and Mr. Whipple’s activities were not outside of the scope of the vehicle’s use and operation. Looked another way, in that particular case, that was the ‘motoring purpose’ of that particular type of vehicle.

44So how can I reconcile the Whipple decision (where the purpose test was met) with my conclusion reached here? This leads to the second reason why the Whipple decision is relevant and at the same time supports my finding that the applicant does not meet the Purpose Test. In Whipple the arbitrator referred back to another principle discussed in Reliance Petroleum Ltd. v. Stevenson.²³ Rand J. stated that the “ordinary and well-known activities to which automobiles are put” applies to different forms of accommodation or service, and depends upon its ordinary features. So, as the Arbitrator did in Whipple, you have to look at the type of vehicle to see what type of ordinary and well-known activities or function it could be put to. In other words, the type of vehicle matters, and I have to look closely at the type of vehicle in question – here the Ryder van itself and ascertain what the motoring purpose of that particular vehicle was.

45On this point, in my view, John Doe (unlike Mr. Whipple) was clearly not using the Ryder van within the scope and course of its ordinary functions or how that particular vehicle was to be used. The Ryder van was a rental van used normally for commercial type activities such as moving or transporting or such common uses. A picture of the van depicts a large white rental van with two doors, large side mirrors and significant damage to the front bumper and engine compartment from the impact. On the side reads: “Truck Rental & Leasing.”²⁴

46Here, however, unlike its ordinary use, the van was being used principally as a weapon to run over and injure innocent people and not for transportation or moving objects. In my view, this was outside of the vehicle’s ordinary use and not within the scope and course of its specific function. Unlike in Whipple, it is obvious that the Ryder van was not advertised for the purpose that it was used for. Notably, the side of the truck read “Truck Rental & Leasing” and “Buy the Best Used Trucks” with a 1-800 number and web page to contact. Nothing about its parts or amenities (such as the stripper pole was found to be in Whipple) can be seen as an invitation to engage in the form of activity that occurred, vehicle-ramming innocent people.

47Further support for my position is found in the Divisional Court decision of Charbonneau v. Intact Insurance Company²⁵ involving a dispute between the parties regarding the Purpose Test when Ms. Charbonneau stood on the rear bumper of a car in motion and fell and hit her head on the concrete. During the hearing before the Tribunal, the parties referred to this misadventure as involving “car surfing” where a person rides on the top or rear of a moving vehicle. There was no dispute that the Causation Test was satisfied, and the appeal involved the Purpose Test.

48In upholding the Tribunal decision, the Divisional Court found that, while reckless and foolish, Ms. Charbonneau was using the vehicle for its normal purpose of transportation and there was an accident. Instructive for the case here is that the Divisional Court stated that “the purpose test is designed to exclude a person from receiving accident benefits where a vehicle is being used for abnormal and aberrant purposes disassociated from the normal purposes of a vehicle, which are to transport people and things.”²⁶ In this case, because the adjudicator and the court found that Ms. Charbonneau was using the vehicle for its normal purpose of transportation an accident did occur. The court also gave examples that using a vehicle for a diving board or as a permanent prop to support a building does not entail entitlement to statutory accident benefits should a misadventure occur.²⁷

49In this case, I find that the applicant has not satisfied the Purpose Test because the Ryder van, albeit was being driven and was involved, it was not being operated in a manner that is consistent with the ordinary use and well-known activities of rental vans. The common word “ordinary” is defined as “of no special quality or interest; commonplace; unexceptional… something regular, customary, or usual.”²⁸ The van was being used principally as a weapon to run over and injure innocent people and not for transportation or such common uses. This was highly extra-ordinary and usual incident and there was nothing normal or ordinary about it. Justice Molloy in her reasons from the criminal trial described this incident as a “one of the most devastating tragedies this city has ever endured…”²⁹ The man that perpetrated this act of violence was convicted of first-degree murder. An injury resulting from such an aberrant, or off-beat use could not sensibly be said to arise “from the use or operation” of the motor vehicle as a motor vehicle. Put another way, simply, it can not be said that the van was being used or operated as a motor vehicle. As in the Divisional Court stated in Charbonneau, the purpose test is designed to ensure that benefits are not provided for an accident in which a vehicle simply is involved but not involved for the normal purposes of that particular vehicle. To this end, I find that the incident did not arise out of the ordinary and well-known activities for which a Ryder rental van is used for.

Causation test: Did the use or operation of an automobile directly cause the applicant’s injuries?

50As both components of the two-part test must be satisfied, and as I have concluded that the applicant has not satisfied the Purpose Test, in this first scenario, it is not necessary to consider whether the use or operation of the van directly caused the applicant’s injuries.

51However, if I am wrong regarding my analysis regarding the Purpose Test as it applies to the Ryder Van scenario, I also find that the Causation Test is not met based on the principle and rationale from P.F. That is when a vehicle ceases being used as automobiles; we cannot expect the insurance companies to provide coverage. If I was to accept the applicant’s position, then that could potentially open claims for anybody who was impaired by being on the accident scene, including first responders, or anyone who was injured while passing by the accident to claim for accident benefits. This would not be the intention of Schedule that over the years has narrowed the definition of an accident.³⁰

52Here, the applicant merely attended the accident scene after the incident occurred. The van was no longer in use and operation by the time the applicant arrived on the scene. The incident also does not meet the Causation Test under the first scenario.

53I will now address the second scenario.

Scenario 2 – Fire Truck: Was the applicant involved in an accident in relation to his use and operation of the fire truck?

Purpose Test: Did the incident arise out of the use or operation of an automobile?

54The Purpose Test under this scenario will be satisfied where the vehicle in question (i.e., the fire truck) is being operated in a manner that is consistent with the ordinary use and well-known activities of vehicles. As already noted above, in considering this principle, I must look closely at the type of vehicle in question. Here, as the applicant was operating a fire truck, the question is properly framed as what the ordinary and well-known activities of a fire truck are.

55It is undisputed that the applicant drove the fire truck to the scene of the incident at approximately 12 noon on April 23, 2018 and was on the scene for approximately ten hours. There were three other fire fighters in the truck with him including two junior firefighters and a captain. A portion of that ten hours was spent on the scene in the truck waiting and guarding the bodies of the victims. The applicant also provided medical care to injured individuals while he exited the truck and travelled on foot. During the EUO the applicant stated that he went back to the truck and moved it to where the crew was. My understanding is that he did this several times although the applicant’s submissions stated that he moved the fire truck three times to move to each group of injured people.³¹ At approximately 10 or 11 pm the applicant drove the truck back to the fire station where he cleaned it up and replenished the supplies.

56In order to use and move the fire truck, the vehicle must be turned on and engines running. Driving his firetruck, carrying other firefighters, hearing dispatches, avoiding other vehicles, looking out the window and seeing where to park, returning to the station, and cleaning the truck are all well known and ordinary activities that a fire truck is put to.

57I will now address the Causation Test – whether the use or operation of the fire truck directly caused the applicant’s injuries. In the end, while I conclude that while the use of the fire truck may have contributed to the injuries, it cannot be said to have directly caused the injuries.

Causation test: Did the use or operation of an automobile directly cause the applicant’s injuries?

58The Court of Appeal in Greenhalgh sets out two questions that must be answered in order to determine the Causation Test and they are as follows:

1. Was the use or operation of the vehicle a cause of the injuries?

2. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that results 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.³²

59The incident does not meet the Causation Test under this scenario. As stated previously, the Causation Test considers the “but for” test, the “dominant feature” test, and whether the use and operation was a “direct” cause of the applicant’s injuries or whether there were intervening factors. Finally, as a stand-alone criterion, the “but for” consideration does not determine legal causation.

60The applicant argues that since the fire truck was in use and operation while he was attending the scene of the accident, the impairments stemmed from the use of that vehicle and therefore should qualify as an accident.

61In attempting to answer the first question above, Greenhalgh applied the “but for” test. Again, the “but for” consideration screens out trivial acts and events that could not be a possible cause of the impairments. It is factual inquiry approached as a yes or no question with doubts resolved on a balance of probabilities. The incident either caused the harm or it did not. If the but for test is not met, then the inquiry would have occurred regardless of the act or omission in question. If the but for test is met, then the act or omission in question is a factual cause of the injury.

62Briefly, in this case, the use and operation of the fire truck was not the cause of the injuries. If you remove the fire truck from the equation, the applicant would still have been exposed to the aftermath of the terrorist attack. Looked another way, if he had cycled/walked to the scene of the accident, he would have sustained the injuries that he did. Therefore, it could not be the use and operation of the vac-truck that directly caused the impairments.

63This brings me to the heart of this appeal being the focuses on the meaning of "directly causes” that directly flows from the language of the provision of s. 3(1) of the Schedule. Notably, this section requires a direct link of causation. What will amount to a direct link will depend on the circumstances of each incident. Again, under the Causation Test from Chisholm and Greenhalgh, it is not enough to show the mere presence of a vehicle at the location of an injury.

64In this case, again, the use and operation of the fire truck was not the cause of the injuries. It was exposure to the accident scene as a witness after the fact. I find the accident occurred prior to the applicant attending the scene and the incident the applicant merely witnessed the aftermath of that accident. He testified during his EUO that he did not know where [the location] the injuries started and that he did not see the vehicle strike a pedestrian.³³ The applicant further stated that he believes he saw the Ryder van but was “not 100 – sure it was that”³⁴ and that he “didn't know it was a van until later until we got all the details.” [emphasis added]

65When asked if he could tell how long the people had been down the applicant answered that he could not tell but “obviously there were different times involved with each person, right, because he had travelled and struck several on the way and each one would have been at a different time…. the people that were struck southbound that we initially dealt with would have been 30 seconds before.”³⁵ The applicant estimated that it took three minutes to travel from the fire station to the accident scene. All of this testimony points to the applicant arriving at the scene after the carnage had occurred.

66The psychological injuries sustained by the applicant were not the direct result of the accident or even through the use or operation of a motor vehicle, but rather the aftermath of the accident, where he rushed to the scene to aid the victims. Yes, he may have moved his truck at the scene several times but at that point the accident had already occurred, and this was merely incident to his impairment. He could have been doing anything else at the scene of the attack and still been impaired.

67More to the point, the fire truck did not cause the applicant the psychological distress he suffered which, based on the applicant’s testimony during the EUO, came from seeing the images left in the wake of the incident and hearing the victims. The applicant did not touch the van nor was he struck by the van. The applicant did not see the van strike pedestrians and confirmed during his EUO that “I did not see it strike a pedestrian.” The applicant did not hear the van strike pedestrians. The applicant also conceded that there was no contact between the van the fire truck.

68In this case, the use or operation of the fire truck cannot be said to be a direct cause of the applicant’s injuries. The fire truck was merely in the vicinity of the aftermath of the accident. More is required than establishing that the fire truck brought the applicant to the location of the incident. The location of the truck on the streets could be said to have led to the applicant’s injuries – and in that limited sense, his injuries were “as a result of” or connected to the use and operation of the fire truck. But the use and operation of the fire truck did not directly cause her injuries.

69While it may be said that but for where the fire truck was located at the scene, the applicant would not have seen or experienced what he did. Taking one further step, the applicant was very likely closer to the traumatic scene when he was out of the fire truck and attending the victims on foot. Again, the same thing would have likely happened if he had walked or rode a bike to the scene. When faced with a number of possible causes, the “dominant feature” consideration is instructive and directs me to determine what is the dominant feature of this incident. It seems that the "dominant feature" of the applicant’s injuries could best be characterized as exposure to the scene of the accident, and that the use of the motor vehicle was at best ancillary to that injury and the use or operation of the fire truck did not cause his injuries. This too supports the conclusion that the use was not a direct cause of the impairment.

70The applicant relies on Souchuk v State Farm Mutual Automobile Insurance Co.,³⁶ where the insured pulled over to the side of the highway to see if her friends had been hurt, exited her car, and was running to check on the condition of her friends following their vehicle veering off the road when she fell and was injured. The insurer submitted that Ms. Souchuk was not involved in an “accident” because her injuries were caused by her fall, not by her use or operation of a car. The insurer’s principal objection was that Ms. Souchuk’s injury was not causally related to the use or operation of an automobile.

71The Financial Services Commission of Ontario (“FSCO”) arbitrator found that the use of a car directly caused an uninterrupted chain of events ending in her injury. There applicant argues that there is very little difference between Souchuk and the case at hand. I do not agree and find Souchuk distinguishable from the present case. I am not bound by that decision or any other FSCO cases cited by the applicant but point out that in Souchuk the insured car was not “merely ancillary” to her injuries, and she was directly involved in the motor vehicle accident between the small pick-up truck and her brother-in-law’s larger pick-up truck. Ms. Souchuk saw the collision between the small truck and her trailer. The key takes away, unlike in this case, is that the Arbitrator found that the use of her own car, as well as that of her brother-in-law’s pick-up truck, played an instrumental role in the chain of events leading to Ms. Souchuk’s injury. She also suffered physical injuries. In the case here, the applicant was simply in the vicinity of the location of the incident, and the fire truck did not play any instrumental role. The applicant did not run from his truck, trip, and fall.

72The applicant also relied on Cooper v Wawanesa Mutual Insurance.³⁷ Ms. Cooper was a pedestrian crossing on a green light and was frightened by a siren of a fire vehicle which caused her to take evasive action to get out of the way of the oncoming fire vehicle and she fell into a steel pole at the curb and was injured. The FSCO Arbitrator held that the use and operation of the fire vehicle was the dominant feature in this incident and the direct cause of her injuries. The Arbitrator’s decision was confirmed on appeal. Again, this was a highly fact specific case involving a pedestrian and physical injuries. More importantly, the case is also clearly distinguishable because the fire vehicle was the dominant feature in this incident whereas in this case the dominant feature is the applicant being a witness to an accident.

73Ultimately, while it is well-settled that the Schedule is consumer-protection legislation and should be interpreted broadly, entitlement to accident benefits requires, at a bare minimum, that an insured be involved in an accident and prove that their impairments were caused as a result of their involvement in that accident. While the events of April 17, 2018 were tragic and the applicant’s actions in assisting the victims were admirable and heroic, it cannot be said that the injuries were suffered as a "direct" result of an "accident", within the meaning of the of s. 3(1) of the Schedule.

74For the reasons provided, I find the applicant has not demonstrated that he satisfies these minimum requirements.

CONCLUSION

75The applicant was not involved in an “accident” as defined by section 3(1) of the Schedule. As a result, the applicant is not entitled to claim accident benefits under the Schedule.

76The application is dismissed.

Footnotes

1. 1Out of respect for the victims, and to support the wishes of Justice Molloy in the criminal trial 2021 ONSC 1258, the Tribunal will not mention the perpetrator’s name and refer to him merely as John Doe.
2. 2O. Reg. 34/10, as amended.
3. 3Amiri and Mireskandari v. The Co-operators, 2021 CanLII 45657 (ON LAT) [Amiri].
4. 4P.F. v. Economical Mutual Insurance Company, 2020 CanLII 19569 (ON LAT). [P.F.]
5. 5Para. 23 of Applicant’s submissions refers to the definition of an “accident’ as the “sole issue in dispute is whether Jeff is entitled to accident benefits on the basis that he was involved in an incident in which the use and operation of an automobile directly caused an impairment.”
6. 6Report of Jiha Humayun, Applicant’s Evidence Brief at Tab 3.
7. 7Transcripts of the EUO, Respondent’s Evidence Brief, Tab 1, pages 45-46.
8. 82002 CanLII 45020 (ONCA). [“Chisholm”].
9. 92004 CanLII 21045 (ONCA). [“Greenhalgh”]. Application for leave to appeal to the Supreme Court of Canada was dismissed with costs March 3, 2005.
10. 10Greenhalgh at para. 11.
11. 11Greenhalgh at paras. 37-49.
12. 12Downer v. The Personal Insurance Company 2012 ONCA 302 (CA) at para. 39.
13. 13Scarlett v. Belair Insurance Company, 2013 Carswell Ont 17362, [2013] O.F.S.C.D. no. 227.
14. 14P.F. v. Economical Mutual Insurance Company, 2020 CanLII 19569 (ON LAT) [P.F.].
15. 15Smith v Cooperators, 2002 SCC 30 at para. 11.
16. 16Tomec v Economical Mutual Insurance Company, 2019 ONCA 882 at para 42.
17. 17Economical Mutual Insurance Company v Caughy, 2015 ONSC 3251 at para. 12.
18. 18Greenhalgh at para. 11.
19. 19Citadel General Assurance Co. v. Vytlingam, [2007] 3 S.C.R. 373, 2007 SCC 46.
20. 20Greenhalgh at para 23.
21. 21Greenhalgh at para 27; Incerto Estate v Landry, 2000 CanLII 22346 (ON SC), [2000] 47 OR (3d) 622, 2000 Carswell 797 at para. 14.
22. 22Whipple v Economical Mutual Insurance Co. 2011 Carswell Ont 11739 at paras 15-21 (FSCO Appeal), Applicant’s Book of Authorities at Tab 36.
23. 23Reliance Petroleum Ltd. v. Stevenson, 1956 CanLII 27 (SCC), [1956] S.C.R. 936 (S.C.C.). See: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/3890/index.do.
24. 24Applicant’s Book of Evidence, page 4.
25. 25Charbonneau v. Intact Insurance Company 2018 ONSC 5660 [2018] (Div. Ct.). [Charbonneau]
26. 26Charbonneau at para. 10.
27. 27Charbonneau at para. 11.
28. 28See https://www.dictionary.com/browse/ordinary.
29. 29R. v. M., 2021 ONSC 1258 at para. 1.
30. 30P.F. v Economical Mutual Insurance Company, 2019 CanLII 119747 (ON LAT) at para. 36.
31. 31Applicant’s Submission’s at para. 16.
32. 32Greenhalgh at para 36.
33. 33EUO Transcripts Q 62.
34. 34EUO Transcripts Q.50.
35. 35EUO Transcripts Q. 76-79.
36. 36Souchuk v State Farm Mutual Automobile Insurance Co., [2004] OFSCD No 4, 2004 CarswellOnt 6039 at pars 28-30, Applicant’s Book of Authorities at Tab 9.
37. 37Cooper v Wawanesa Mutual Insurance, 2008 ONFSCDRS 180, [2008] 68 CCLI (4th) 149, 2008 CarswellOnt 7340.