Leonie Lindo v. Echelon General Insurance Company, 2021 CanLII 19408

Lindo v. Echelon General Insurance Company

Citation: Lindo v. Echelon General Insurance Company, 2021 ONLAT 19-014520/AABS Released: February 19, 2021 Tribunal File Number: 19-014520/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:

Leonie Lindo Applicant

and

Echelon General Insurance Company Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Safiyyah Ferouz, Paralegal

For the Respondent: Daniel Strigberger, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant claims she was involved in an automobile accident on October 22, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')¹. The applicant submits her vehicle was side swiped by another vehicle causing her injuries and damaging her vehicle.

2The respondent denies that there was an accident that caused any injuries. It submits the applicant was injured during a drive by shooting when the applicant’s vehicle had stopped at a red light. She and the passengers in the vehicle were injured in the drive by shooting. The respondent claims that although the applicant was injured while she was driving her vehicle based on a forensic investigation of the incident and the testimony of the applicant in an Examination under Oath (OEU), the applicant was not injured in an accident. It requests the appeal be dismissed.

3At the case conference held on May 28, 2020, a written preliminary issue hearing (PIH) was scheduled to decide the issue of whether the applicant was injured in an accident. The Order of Adjudicator Msosa released June 1, 2020 set a schedule for written submissions. The substantive issues were to be addressed on conclusion of the PIH. The PIH proceeded by way of by written submissions.

ISSUE

4The preliminary issue is:

(i) Whether the applicant’s impairment was caused by an accident as defined in section 3(1) of the Schedule?

5The respondent seeks costs in the amount of $1,000.00.

RESULT

6The applicant’s impairment was not caused by an “accident” as defined in s. 3(1) of the Schedule.

7The request for costs is dismissed.

ISSUES

8The issue in this appeal is whether there was an accident that caused the applicant’s injuries. She claims it was during a car accident. The respondent denies such and claims it was caused by the drive by shooting when 24 bullets were fired into her vehicle.

9The applicant bears the burden of proof to establish that any impairment she sustained is the result of an automobile accident. The applicant filed submissions after the date set for submissions by Adjudicator Msosa at the case conference. The submissions contain only a few statements about the incident which she requests be found to be an accident.² She lists a number of injuries sustained including chronic pain, headaches, a fractured shoulder, injuries to the right hand, etc.³ The submissions contain statements contrary to those made at an Examination Under Oath (EUO) and do not advance any arguments to support her position that she was injured in an accident. The written submissions and attached documents filed after the date set in Adjudicator Msosa’s Order relate to the substantive issues in dispute.

HOW THE ACCIDENT OCCURED

10The applicant in her submissions⁴ states that she was a seat belted driver of a vehicle and was driving on a highway and she was injured when her vehicle was side-swiped by another vehicle causing her to come to a stop at a red light. Her body was jolted forward causing her injuries. She lost consciousness. She stated further that the front seat passenger (her boyfriend) got shot. She stated⁵ that a vehicle slammed hers causing severe damage to her and her vehicle. In her application for accident benefits ⁶ the applicant stated she was stopped at a red light and all that she remembers is flashing lights and loud noises and sounds.

11The applicant’s version of how the accident occurred as stated in her submissions and the Form 1 are not consistent with the testimony of the applicant given at an EUO which proceeded on January 16, 2020.⁷ The statement of how the accident happened is also not supported by the findings of the forensic investigator who was hired by the respondent to assess whether there was an accident as claimed.

Examination under Oath

12The applicant testified at the EUO that on the night in question, she and three other individuals attended a party. At around 9:00 p.m., the applicant and the other three individuals left the party.⁸ The applicant states she drove the vehicle⁹ northbound on a major highway and she then drove off the highway and onto an off ramp where she came to a stop at a red light.¹⁰ At this point she had stopped in the left lane.¹¹ This is contrary to her statement in the submissions where she stated she was hit by the vehicle which caused her to stop at the light. She testified that while she was stopped at the red light, another vehicle drove up on the right hand side of her vehicle (which would be the right hand lane) and stopped beside her vehicle.¹² At that time she was changing songs on the radio when she states she felt an impact, saw lights and heard noises.¹³ She felt like something hit the side of her car. She testified she felt an impact like “… they hit, like, the side of my car…” and that she “… felt, like, a boom…”¹⁴ The third-party vehicle drove off. She lost consciousness. Her submissions make no reference to the third-party vehicle that drove up beside her vehicle.

13The applicant testified at the EUO that she was shot, at least 4 times, in the back, face, right hand and shoulder.¹⁵ She was bleeding. She was taken to the hospital and treated for her injuries. She subsequently underwent 5 surgeries.¹⁶ The other passengers were also shot several times in the shooting. They were also taken to the hospital. The front seat passenger (the boyfriend) who was shot, she later learned died at the scene. The police were subsequently called to the area.

14The respondent filed into evidence news articles¹⁷ that described a drive by shooting as well as photos taken of the damaged vehicle.¹⁸ The photos and forensic investigative report¹⁹ show the car had 24 bullets that had been fired into the right hand side of the applicant’s vehicle.

The Investigative Report

15The respondent ordered a forensic investigation into the incident. The investigative report dated August 24, 2020 reviewed the applicant’s EUO testimony, pictures of the vehicle, and the news stories regarding the incident. The investigation was to assess whether there was an accident as claimed. The investigation found no evidence of any damage to the car to support the applicant’s statement in her EUO that another vehicle hit her vehicle during this incident. The report concluded there is no evidence of any damage to the side of the vehicle which would have been caused by being sideswiped by a vehicle. There was also no evidence of any damage to the vehicle at or to the back if it had been rear ended.

16It was concluded that the height of the bullet holes on the right side of the car suggest that there would have been some separation between the applicant’s car and the third-party vehicle. Further, the only damage shown was from the 24 bullets shot into the right side of the car. There was no damage consistent with a sideswipe impact or a collision at the rear of the vehicle. The report concluded there was no evidence of any collision.

17The respondent, based on the testimony of the applicant and its investigative report, concluded that the subject incident was not an “accident” as defined by the Schedule. It advised the applicant of its position and denied her claim for a medical benefit on that basis.

18The respondent argues the EUO and the investigative report indicate the applicant was shot while she sat in her vehicle and any alleged injuries do not arise from the use and operation of a motor vehicle. I agree with the respondent’s position that the EUO evidence and investigative report indicate that the drive-by shooting is the cause of the injuries and not an “accident”.

19Based on the facts and evidence presented, I find the applicant has not met her burden of proof that the injuries as alleged are the result of an accident as defined in as defined in s. 3(1) of the Schedule.

ANALYSIS AND DECISION

20An “accident” is defined in subsection 3(1) of the Schedule means an incident in which the use or operation of an automobile directly causes an impairment”.

21The applicable legal test to determine if there is an accident is as follows:

a. Purpose Test: Did the accident result from the ordinary and well-known activities to which automobiles are put?²⁰

b. Direct Causation Test: Was the use or operation of the vehicle a cause of the injuries?²¹

22The applicant presented no submissions on the legal test to determine if the injuries were caused by an accident.

23The respondent concedes that the applicant was operating her vehicle when she was injured in way in which it would ordinarily be used. She was driving the vehicle at the time. However, it maintains the applicant does not meet the causation test set out in the court decisions in the case of Chisholm and Greenhalgh²² where the court stated that it is not enough to show that an automobile was at 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. In this case it maintains the use and operation of the vehicle was not the direct cause of the injuries. I agree. The EUO testimony and the investigative report show that the drive by shooting was the direct cause of the applicant’s injuries. The fact that she was in a vehicle was simply incidental. It was the shooting that was the sole cause of her injuries.

24The applicant stated she felt an impact. That may be so, but the cause appears to have been the shots fired at her. She testified being shot at least 4 times. I find the shots are the source of the impact rather than being hit by another vehicle. Had the vehicle been sideswiped as claimed or rear ended, the forensic investigative report should have found damage to the vehicle. No such damage was found.

25The respondent also referred to another case, the Chisholm²³ case, which has similar facts to this appeal. In the Chisholm case, the driver was injured by random third-party gun shots fired into the driver’s vehicle. The Court found the driver did not meet the causation test. Legal entitlement to accident benefits “…requires not just that the use or operation of a car be a cause of the injuries but that it be a direct cause. I find in this appeal the injuries were from the gun shots and not a collision with another vehicle.”

26The respondent also referred to the Tribunal decision in file 17-000796.²⁴ The claimant in that case was driving a car with her boyfriend as a passenger in the vehicle. While stopped at a red light, an unidentified car pulled up beside the claimant’s car and sprayed the claimant’s car with 18 bullets, some of which struck the claimant’s boyfriend causing fatal injuries. The claimant subsequently made a claim for accident benefits for psychological impairments. In that case, the Adjudicator found the dominant feature of this whole incident was the assault, not the operation of the automobile.” The use of an automobile was “merely ancillary” to the impairments sustained by the claimant.

27I am not bound by the previous Tribunal decision however I do find it persuasive in that it contains facts almost identical to this appeal and provides further support when considered with the EUO testimony and the investigative report of my finding that the applicant was not involved in an accident.

28I find there is no evidence that any claimed impairment was caused by an accident as defined in section 3 (1) of the Schedule.

COSTS

29The respondent in its submissions requests costs in the amount of $1,000 under Rule 19.1 of the Tribunal Rules of Practice and Procedure.²⁵ It states that the applicant filed her submissions late and it was forced to file submissions prior those of the applicant thereby causing it to be permanently disadvantaged. It also asks that the applicant not be provided with any additional time to file submissions. As to the latter point, and as the applicant has not requested any additional time to file any other submissions, it is not necessary to consider granting an extension.

30The submissions were filed late but I do not find the behaviour of the applicant warrants an order for costs. The submissions which relate primarily to the substantive issues do not support the applicant’s position that she was injured in an accident and thus offer support for the respondent’s position. Other than being forced to file submissions prior to those of the applicant, the respondent has offered no evidence of being permanently disadvantaged. It agreed to and was required to file written submissions by Order of the case conference adjudicator. For these reasons, I decline to order costs.

31In conclusion, I find the injuries as claimed were not caused by an accident within the meaning of section 3(1) of the Schedule. The applicant’s appeal is accordingly dismissed. The request for costs is dismissed.

Date of Issue: February 19, 2021

Thérèse Reilly

Adjudicator

Footnotes

1. 1Ontario Regulation 34/10.
2. 2Paragraph 13, page 9 of the applicant’s written submissions.
3. 3The injuries are listed in paragraphs 2, 14 and 15 (pages 5 and 6) of the applicant’s written submissions.
4. 4Paragraph 2 of the applicant’s written submissions.
5. 5Paragraph 24 of the applicant’s written submissions.
6. 6Form 1, application for accident benefits, part 3.
7. 7Transcript of the Examination under Oath dated January 16, 2020 (EUO), tab 3, written submissions of the respondent.
8. 8Question 40 of the EUO.
9. 9Question 66 of the EUO.
10. 10Question 83 of the EUO.
11. 11Question 93 of the EUO.
12. 12Question 96 of the EUO.
13. 13Questions 83 to 85 of the EUO.
14. 14Question 177 of the EUO.
15. 15Question 110 and 111 of the EUO.
16. 16Question 121 of the EUO.
17. 17News articles dated October 23 and 25, 2019, tabs 4 and 5 of the respondent’s submissions.
18. 18Numerous photos of the car and bullet holes are contained in the investigative report.
19. 19MEA Forensic Report dated August 24, 2020, tab 8 of the written submissions of the respondent.
20. 20Citadel General Assurance Co. v. Vytlingam 2007 SCC 46, [2007] 3 SCR 373 and paragraph 30 of the respondent’s written submissions.
21. 21Chisolm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) and Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), paragraghs 33 and 35 of the respondent’s written submissions.
22. 22Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) and paragraph 46 of the respondent’s written submissions.
23. 23Chisolm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA).
24. 2417-000796 v Certas Direct Insurance Company, 2018 CanLII 84053 (ON LAT), paragraph 40 of the respondent’s written submissions.
25. 25Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), Paragraphs 58 to 61 of the written submissions of the respondent.