Released Date: 02/12/2021
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:
Fabbio Baldinelli
Applicant
and
Aviva Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
George Pappas, Counsel
Matthew Wasserman, Counsel
For the Respondent:
Brittanny K. Tinslay, Counsel
HEARD:
Via written submissions
OVERVIEW
1This matter arises out of an incident that occurred on September 27, 2016. The incident, which involved a series of assaults, resulted in physical impairments to the applicant, who then sought accident benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule'').
2Aviva denied the applicant’s claim for benefits, taking the position that the incident did not constitute an “accident” under s. 3(1) of the Schedule, but rather that it was an assault that does not entitle the applicant to accident benefits. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUE IN DISPUTE
3The parties agree that the preliminary issue in dispute is as follows:
i. Whether the incident that occurred on September 27, 2016 was an “accident” as defined by s. 3(1) of the Schedule?
result
4The incident that occurred on September 27, 2016 does not meet the definition of an “accident” under s. 3(1) of the Schedule.
ANALYSIS
September 27, 2016
5The parties agree on the facts giving rise to the dispute.2 Around 5:30pm on September 27, 2016, the applicant was sitting on his front porch when he saw police cruisers go by. He heard a commotion and a number of “bangs.” Due to the applicant’s lengthy driveway, which is approximately 200 feet long, he was unable to see what was happening in the street from his porch.
6So, the applicant decided to get into his rental vehicle and drive the length of his driveway to get a better view of the police in the distance. Then, a black truck, driven by a male in his 20s (“older assailant”), approached the applicant’s rental vehicle. The applicant reversed to move back up his driveway. The black truck stopped in front of the applicant’s rental vehicle and the older assailant exited his truck, approaching the applicant’s vehicle asking for help.
7However, after the applicant opened his driver side door, he was immediately struck in the neck/face by the older assailant. A struggle ensued, with the applicant alternating stepping on the accelerator and the brake and swerving the vehicle in an attempt to throw the older assailant from his rental vehicle. The applicant was successful in throwing the older assailant from the rental. He then began driving behind the older assailant, forcing him towards the road where the black truck was idling. Notably, there was also a younger male (“younger assailant”), described as 15 years old, who had arrived in the black truck with the older assailant and had retreated back to it. The applicant reversed back up his driveway to his house.
8The two assailants then stopped a different vehicle passing them on the road, urging again for help. The applicant heard them, then got back in his rental vehicle and proceeded back down his driveway towards the road. The applicant saw the assailants blocking the path of a pickup truck driven by a man (“victim”) with a young boy (“young victim”) as a passenger. The older assailant grabbed the open window and pulled the glass out of the frame. The older assailant then climbed into the victim’s side window and began attacking him. The younger assailant approached the passenger door and attempted to pull the young victim out of the pickup truck. The applicant ran toward them and as the younger assailant saw him approaching, he released the young victim, who was able to get back into the passenger seat of the pickup.
9The applicant then approached the older assailant from behind and placed him in a headlock and pulled him to the ground where the two wrestled. The younger assailant then ran up behind the applicant and hit him in the lower left side of his back with a Ball-Peen hammer, while also brandishing an icepick in his other hand. When the applicant turned toward the younger assailant, he appeared to back down, which allowed the victim and the young victim to drive away in their pick-up truck. The younger assailant fled the scene.3
10The applicant’s impairments from this incident were caused when he was wrestling with the older assailant and when the applicant was struck in the neck/face. As a result of this incident, the applicant sustained a blown eardrum, suffers from pain, headaches, balance and sleep issues, and also exacerbated a pre-existing hand injury.
“Accident” framework
11Section 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 […].”
12In Chisholm v. Liberty Mutual Group4, 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” tests. The test was further refined by the Court in Greenhalgh v. ING Halifax Insurance Company5 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 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. In Greenhalgh, the Court also addressed “but for”, “intervening act” and “dominant feature” considerations to analyze the modified Causation Test.
Positions of the Parties
13Aviva submits that the use or operation of a motor vehicle did not cause the impairment, that the applicant drove himself to a location where an assault then took place within the vicinity of, or inside his rental vehicle. Aviva argues that the incident does not meet the Purpose Test or Causation Tests because the assaults on the applicant, regardless of any presumed motive to steal the rental vehicle, were not ordinary and well-known activities to which automobiles are put and the assaults were intervening acts that broke any chain of causation.
14To this end, it directs the Tribunal to a series of assault cases, Russo v. John Doe, 2009 ONCA 305, Downer v. The Personal Insurance Company, 2012 ONCA 302, and Martin v. 2064324 Ontario Inc. (Freeze Nightclub), 2013 ONCA 19, that it submits fall squarely within the line of cases that clearly establishes that an assault is an intervening act that breaks the chain of causation, making it so the use or operation of the applicant’s vehicle was not the direct cause of his injuries. In the present case, Aviva asserts that the vehicle is no more than the location of the first assault on the applicant and that the use or operation of a motor vehicle was not even a cause of his injuries, but rather that the cause of the applicant’s injuries were the assaults.
15In response, the applicant submits that the incident that occurred was an accident that meets both the Purpose and Causation tests. He relies on Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 and North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 to support his position that he was using the rental vehicle for its ordinary and well-known purpose of driving when he was assaulted and that the rental vehicle was a direct and necessary cause of his impairments because without it, his assailants would not have assaulted him in an attempt to steal it.
Not an accident – the Purpose Test and the Causation Test
16I am persuaded by Aviva’s submissions and follow the line of binding Court of Appeal cases it relied on, namely Chisholm, Downer and Martin. On the facts, I find the incident that occurred on September 27, 2016 was an assault and not an accident, as defined by s. 3(1).
17I find it clear that the dominant feature of the incident and the applicant’s impairments involved the older assailants’ fists and the younger assailants hammer. A vehicle did not cause any of the applicant’s impairments and it cannot be said that the applicant’s impairments from these assaults were directly caused by the vehicle or that they resulted from “the ordinary and well-known” use of his rental vehicle just because he was in it (or by the black truck that his assailants arrived in). While the first assault on the applicant certainly occurred in or perhaps halfway inside the rental vehicle, I find that it was merely that: the location of an unprovoked and alarming assault. In this vein, while I accept the applicant’s position that opening a vehicle door while the vehicle is running in order to see if someone needs help would be an ordinary use of a vehicle, I find that once the older assailant struck the applicant in the neck/face, this constituted an intervening act that severed the chain of causation. The vehicle was not the dominant feature or the direct cause of the applicant’s impairments from the incident, failing the Causation Test.
18Further, while the applicant should be commended for aiding the victim and the young victim, I find the fact that he pursued the assailants after the first assault, by driving to the road, getting out and proceeding towards them, means that it was not an uninterrupted journey or chain of events to the second assault/wrestling struggle, as the applicant suggests, nor does it make any of the vehicles involved a dominant feature or the direct cause of the incident, as they were ancillary. In this sense, I cannot find that the incident meets the modified Causation Test. Rather, the applicant’s decision to pursue the assailants is another intervening cause that certainly falls outside of the “ordinary course of things” that would not normally involve the use or operation of a vehicle.
The Caselaw
19In 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. In this case, as with the gun shots in Chisholm, I find the assault on the applicant by an otherwise unknown assailant can hardly be considered an intervening act in the “ordinary course of things.” Indeed, the circumstances leading to the exchange and the assault itself were so bizarre and chaotic that I find they cannot be characterized as “ordinary” in any sense of the word. In this vein, I find that the assault constituted an intervening act that broke the chain of causation.
20The applicant asserts that the entire incident was an “accident” because it was an uninterrupted chain of events that began with him opening his vehicle door to see if the older assailant needed help, which led to being struck in the neck/face, the subsequent struggle and successful removal of the older assailant from the vehicle and then the brawl that ensued on the road. I disagree. Even where the use of a 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.”6 Here, I agree with Aviva that the strike to the applicant’s neck/face was the direct cause of his impairment, not the proximity of the rental vehicle to the assault or the fact that it was running at the time. To borrow from para. 49 of Greenhalgh, I find the strike from the older assailant was “the aspect of the situation that most directly caused” the applicant’s blown eardrum and was therefore clearly the dominant feature in respect of the causation analysis.
21I also agree with Aviva that there is limited distinction between the facts of this case and those in Downer and Martin. While the applicant asserts that these cases are distinguishable because the purported purpose of the assault was to take possession of his rental vehicle, I concur with Aviva that these cases are instructive, and motive is not determinative. Importantly, in both cases, it was held that assaults on unsuspecting motorists were not part of the “ordinary course of things,” that the assaults were not part of the ordinary and well-known uses to which vehicles are put and in neither case were the injuries sustained as part of the assault covered under the Schedule as “accidents.” In my view, these cases provide authority for Aviva’s position that an incident like the one that occurred on September 27, 2016 can be separated into distinct phases where the dominant phase of an incident can be characterized as an intervening assault that does not constitute an “accident.”
22For instance, 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 Court did agree, however, that running over someone can fairly be considered as a normal incident of the risk created by the use or operation of a vehicle and determined that any resulting psychological impairment from such an incident could be "a direct consequence of the use or operation of his motor vehicle".
23Similarly, in Martin, the plaintiff was loading his car in a parking lot after leaving work at a night club. He was assaulted by two unknown assailants in a parking lot, driven a few blocks away in his own vehicle, further assaulted and ultimately abandoned by his attackers. The Court of Appeal found that all of the senseless acts of violence against the plaintiff, except for an injury to his foot that occurred when the assailants drove away, had nothing to do with the use or operation of his vehicle. The Court held that the assaults constituted intervening acts that could not reasonably be said to be part of the "ordinary course of things" associated with the use or operation of a vehicle or a direct cause of the injuries suffered by the plaintiff, while also finding that there was a genuine issue for trial relating to the foot injury caused by the moving vehicle.
24Likewise, in Russo, the Court of Appeal addressed whether a plaintiff’s injuries were caused by the use or operation of a motor vehicle when she was shot by passengers travelling in a van while she was inside a restaurant. The Court found that the plaintiff's injuries did not arise from the driver of the van who was carrying the shooters but as a result of the shooting. The Court found that the shooting was a distinct and intervening act completely independent from the use or operation of the van. In this sense, the vehicle was found to have created an opportunity in time and space for damage to be inflicted, similar to the facts here.
25For completion, the applicant relies on North Waterloo Farmers Mutual Insurance Co. v. Samad to support his position that an accident includes a series of events that starts with the use or operation of a vehicle and ends with an assault. In Samad, a taxi driver was assaulted by his passenger. He stopped the vehicle, the passengers got out and, when he went to close the van door, was pushed by one of the passengers, resulting in him slipping on ice and falling. The decision, upheld on appeal, found that it was impossible to separate the insured’s attempt to close the door, being pushed by the passenger and his slipping on the ice, which meant that it was reasonable to conclude that his attempt to close the door was the dominant feature of the incident and a well-known activity related to the use and operation of a vehicle. While I am alive to the principle highlighted by the applicant, I disagree that it is a rule of general application and find Samad is distinguishable from the facts of this case because there are no overlapping or competing events that resulted in injuries to the applicant that would make it impossible to separate, as there were in Samad. Here, there is no dispute that the primary impairment was the blown ear drum from the older assailant’s strike, which I accept has likely led to the applicant’s headache and balance issues.
26For these reasons, I find the case law supports Aviva’s position. While the events of September 27, 2016 were truly bizarre and the applicant’s actions in fending off the assailants were admirable and, frankly, heroic, I find that the incident does not meet the Causation Test necessary to qualify as an “accident” under s. 3(1) of the Schedule.
ORDER
27The incident that occurred on September 27, 2016 was not an accident as defined by s. 3(1) of the Schedule. Accordingly, the application is dismissed.
Released: February 12, 2021
__________________________
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.
- Transcript of the Examination Under Oath of FABBIO BALDINELLI, taken at the offices of London Verbatim Reporting Inc., 495 Richmond Street, Suite 503, London, ON, on September 28, 2018.
- While it is not a fact germane to this dispute, the applicant, who trains police dogs, then also assisted the police in chasing down the younger assailant, who was eventually apprehended nearby. The older assailant remained at the scene of the incident and was apprehended by police.
- 2002 CanLII 45020 (ONCA), at 17. [“Chisholm”].
- 2004 CanLII 21045 (ONCA), at 11. [“Greenhalgh”].
- LaFond v. Allstate Insurance Company of Canada, 2006 CanLII 40104 (ON SC).