Released Date: 02/25/2021
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:
Shawn Rochford
Applicant
and
Unifund Assurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
John Russell Counsel
For the Respondent:
Ken Yip
Counsel
HEARD
By Way of Written Submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1Shawn Rochford (“applicant”) was assaulted when he exited his vehicle while attempting to park it on April 30, 2018 (“incident”). For the purpose of this hearing, automobile and vehicle hold the same meaning. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the ''Schedule'').
2Unifund Assurance Company (“respondent”) denied benefits claimed by the applicant. The respondent’s position is that the applicant was not involved in an “accident” within the meaning of s. 3(1) of the Schedule.
3The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
4The Tribunal ordered that the preliminary issue below be heard.
PRELIMINARY ISSUE
5The preliminary issue to be decided is:
i. Was the incident that took place on April 30, 2018 an “accident” as defined in s. 3(1) of the Schedule?
RESULT
6The applicant was not involved in an accident as defined in the Schedule. The application is dismissed.
LAW
7Section 3 of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
8The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.
ANALYSIS
Was the incident an “accident”?
9For the following reasons, I find that the applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.
10The Ontario Court of Appeal has established a two-part test to determine whether an incident constitutes an accident2 as follows:
a. Purpose test: did the incident arise out of the use or operation of an automobile, and
b. Causation test: did the use or operation of an automobile directly cause the impairment.
11If it can be established that the use or operation of an automobile was the cause of the injuries, then the applicant must establish that there was “no intervening act(s) that resulted in the injuries that cannot be said to be part of the course of the “ordinary course of things”. The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.”3
12The application of this test to the facts of this case follows.
Did the applicant’s injuries arise out of the use or operation of an automobile (the purpose test)?
13The applicant submits that during the incident he was assaulted while attempting to park his vehicle. When the applicant exited his vehicle to speak to individuals behind his vehicle, he was assaulted and when he attempted to re-enter his vehicle he was assaulted again and thrown up against the vehicle.
14The applicant relies on case law4 which he submits deem this activity to be the ordinary use and operation of a vehicle but did not put forward any evidence at this written hearing.
15The respondent concedes that the incident meets the purpose test but not the causation test and therefore is not an “accident” as that term is defined in s. 3(1) of the Schedule.
16Based on the respondent’s concession, I find that the incident meets the purpose test.
Did the use or operation of an automobile directly cause the applicant’s injuries (the causation test)?
17Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal5:
i. whether the incident would have occurred “but for” the use or operation of the automobile;
ii. whether there was an intervening act that cannot be said to be part of the ordinary course of the use or operation of the automobile; and
iii. whether the use or operation of the automobile was the dominant feature.
18I find that the applicant’s alleged injuries were not directly caused by his use or operation of his automobile because the applicant has not provided any evidence to meet his burden of proof. Submissions are not evidence.
19To the contrary, the evidence filed by the respondent makes it clear that the assault on the applicant by another individual was an intervening event that directly caused the applicant’s alleged impairment and it cannot be considered a normal incident or risk created by the use or operation of an automobile.
20Further, the applicant’s case law is not helpful here, especially given that he filed no evidence. LL v. Intact is not binding on me and I decline to follow it because in that case, unlike here, the respondent conceded that the assault was an accident. The Samad case turned on the evidence before the adjudicator. Here the applicant led no evidence.
21I find that the applicant has not met his onus to establish that the incident meets the causation test.
ORDER
22For the reasons above, I find that the applicant was not involved in an accident as defined in the Schedule. The application is dismissed.
Released: February 25, 2021
Avril A. Farlam, Vice Chair
Footnotes
- O.Reg. 34/10
- Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ON CA) at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.
- Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
- L.L. v. Intact Insurance Co., 2019 CarswellOnt 3604 (ON LAT); Samad and. North Waterloo Farmers Mutual Insurance Co., 2016 CarswellOnt 5685 (FSCO) affd. In North Waterloo Farmers Mutual Insurance Company and Samad, 2017 CarswellOnt 3800 (FSCO).
- Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ON CA) at paras. 36 and 38.