Release date: 2021/03/12
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:
Allstate Canada
Applicant
and
Leroy Staglon
Respondent
DECISION
VICE CHAIR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Kevin Mitchell, Counsel
For the Respondent:
Maria Grubsic, Student at Law
HEARD: by videoconference:
February 2 and 3, 2021
OVERVIEW
1Leroy Staglon was allegedly injured in an incident on May 10, 2018 (“incident”) during which, while riding his bicycle, he wound up on the ground in front of the vehicle being operated by Greg Acheson (“driver”). For the purpose of this hearing, automobile and vehicle hold the same meaning.
2Mr. Staglon unsuccessfully sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the ''Schedule''). Mr. Staglon submitted an application for dispute resolution to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) in Tribunal file #19-007082.
3The Motor Vehicle Accident Claims Fund (“Fund”) submitted this application for dispute resolution to the Tribunal naming both Leroy Staglon and Allstate Insurance Company of Canada (“Allstate”) as respondents.
4As a result of negotiations, Allstate replaced the Fund as the applicant in this proceeding, Mr. Staglon withdrew his application in file #19-007082 and was named as respondent in this proceeding.
5On April 6, 2020, the Tribunal ordered the preliminary issue below be heard between Allstate (“applicant”) and Leroy Staglon (“respondent”).
PRELIMINARY ISSUE
6The preliminary issue to be decided is:
i. Was the respondent involved in an “accident” as defined under s. 3(1) of the Schedule?
RESULT
7The respondent was not involved in an accident as defined in the Schedule.
LAW
8Section 3(1) of the Schedule defines an “accident” as an incident in which the use or operation of an automobile directly causes an impairment or damage to prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.
9The courts have established a two-part test to determine whether an insured was involved in an accident: whether the use or operation of an automobile was involved in the incident (the purpose test) and, if so, whether such use or operation directly caused the claimant’s injuries (the direct cause test).2
If it can be established that the use or operation of an automobile was the cause of the injuries, then it must be established 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 thing”. The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.”3
10The application of this test to the facts of this case is as follows.
ANALYSIS
Positions of the Parties
11The applicant’s position is that the incident does not meet the purpose test and therefore is not an “accident” as that term is defined in s. 3(1) of the Schedule because there was no collision contact between the driver’s vehicle and the respondent’s body or bicycle. The vehicle was stopped at a traffic light. The bicycle was stopped at the traffic light. When the light changed, the bicycle went ahead, and the vehicle did not. The respondent’s injuries did not arise out of the use or operation of an automobile but because the respondent fell off his bike. The applicant submits that if the purpose test is not met, no analysis of the direct cause test need take place. Alternatively, if the direct cause analysis is undertaken, the applicant submits that the “but for” test applies here and further submits that, for the same reasons, the use or operation the driver’s vehicle did not directly cause the claimant’s injuries
12The respondent’s position is that both the purpose test and the direct cause test are met. The respondent submits that whether or not there was contact between the driver’s vehicle and the respondent’s body or bicycle, the motion of the two vehicles is a key part of the purpose test, there does not need to be contact for the incident to be an “accident” and the respondent was led too close to the curb and was in a defensive mindset. The respondent relies on Economical Mutual Insurance Company v. Caughy. Further, the respondent submits there was no intervening cause for the respondent’s alleged injuries.
Did the respondent’s injuries arise out of the use or operation of an automobile (the purpose test)?
13After hearing evidence from the driver of the vehicle, Detective Constable Amir Butt (“D.C. Butt”) and the respondent, and reviewing the documents submitted by both parties, I find the incident and the respondent’s alleged injuries did not arise out of the ordinary use or operation of an automobile and does not meet the purpose test. As a result, further analysis concerning the direct cause test is not necessary.
FACTS
14It is not in dispute the driver’s vehicle and the respondent riding his bicycle were both travelling westbound on Finch Avenue West toward the intersection of Finch Avenue and Yorkgate Boulevard in the curb lane just before the incident. However, the parties disagree on what happened next.
15The driver testified that he holds an AZ driving licence and his occupation is driving commercial vehicles including tractor trailers. He testified that an amputation of his right leg below the knee and use of a prosthetic does not impact his ability to drive commercial vehicles or his personal vehicle. At the time of the incident he was driving his personal vehicle, a Ford Escape.
16The driver testified that he first saw the respondent on his bicycle when the tractor trailer to his left switched lanes because the respondent was bicycling in the middle of the lane. There were no vehicles in front of the driver’s vehicle, and he passed the respondent in the curb lane without incident and got to the intersection before the respondent. The light was red, so he brought his vehicle to a complete stop and left the respondent ample room between the driver’s vehicle and the curb. The respondent got to the red light after the driver’s vehicle and stopped beside the vehicle, putting his left hand on the driver’s hood in front of the passenger side mirror to steady and balance himself. Both waited for the light to turn green
17The driver testified that as the light was about to change, the respondent took his hand off the driver’s vehicle, tried to balance himself and then fell on the ground in front of the driver’s vehicle. The driver testified he had not moved his vehicle forward at all and was still behind the white stop line before the crosswalk. He did not hear the respondent, or his bicycle strike the driver’s vehicle. The driver expected the respondent to get back up and continue on his bicycle until he heard someone at the nearby bus stop ask the respondent if he was okay. When he heard that, the driver put his vehicle in park, got out, walked to the front of his vehicle.
18The driver testified that he saw the respondent lying on the ground in front of the vehicle complaining about his back. No part of the respondent’s body or his bicycle was under any part of the driver’s vehicle. There was no damage to the bicycle that he could see. The respondent didn’t say anything about being struck by the driver’s vehicle and didn’t engage in any verbal communication with the driver. The driver concluded that the respondent fell off his bicycle. The driver said “what the f*** are you doing” after which the respondent jumped up and started punching him in the face with a closed fist. The driver covered his head with his hands as he was being punched and went down on the ground where he curled up until the punching stopped. The driver had a bruised face and a couple of cuts and was bleeding. He did not strike back at the respondent.
19The driver got up when the punching stopped and called 911 but could not get through. The respondent was standing on the curb a few feet away from him. The bus came and the bystanders got on the bus and left. No independent witness came forward. The driver drove his vehicle around the bicycle and parked around the corner on Yorkgate in order to clear the intersection. There were several police vehicles on Yorkgate, and D.C. Butt was on the scene a few minutes later. D.C. Butt recorded the driver’s statement in his squad car. This statement was played at the hearing and corroborates the driver’s testimony.
20The respondent was 58 years old at the time of the incident and said he had been riding a bicycle for some 50 years, has a G class driving licence, is familiar with the rules of the road and with this stretch of road because it is his usual route from home to work. The respondent testified that before he stopped for the traffic light at the intersection the driver yelled at him through his open passenger window to ride on the sidewalk, called him names and squeezed him in the curb lane. The respondent said he arrived at the traffic light before the driver’s vehicle and stopped at the white stop line before the crosswalk. The driver’s vehicle stopped behind his bicycle. The respondent put his hand on the right front fender of the driver’s vehicle over the wheel to prevent the mirror from striking him in the back. Both of his feet were on the ground.
21The respondent testified that when the traffic light turned green, he put both feet on the pedals of his bicycle, felt an impact on his back wheel which made him fall down and he landed on the ground with part of his body under the front bumper of the driver’s vehicle. The respondent said the driver’s vehicle directly contacted the rear tire of his bicycle before he even got over the crosswalk. The respondent said he believes the driver hit him deliberately although he admits the driver did not say that to him. A man helped him get up off the ground and onto the sidewalk, but the man didn’t stay around.
22When the driver got out of his vehicle, the respondent believed he was being aggressive and struck him four blows with his closed right hand. The respondent denied getting up off the ground without assistance from a bystander. After that the respondent called 911. The police came right away and called an ambulance for him at his request. A police officer came to the hospital to talk to him about the incident, but the officer refused to listen to him. The respondent asked the officer if he needed to have a lawyer and the officer said yes so, he stopped talking. He testified that it was insulting trying to give a statement when the officer refused to listen to him. He was arrested and charged with assault.
23The respondent said he fell off his bicycle to his left side and the right front fork of his bicycle was bent and the left side pedal. The driver’s vehicle had no damage.
24D.C. Butt, a 15-year veteran of the Toronto Police Services who investigates crimes, testified at the hearing. D.C. Butt was nearby was at the scene within a few minutes. He called for a traffic officer to come and deal with the collision and Officer Kumar was sent. D.C. Butt handled the assault issue and Officer Kumar handled the collision issue. D.C. Butt looked at the scene, the driver’s vehicle and the respondent’s bicycle as part of his investigation. He also made notes and recorded an audio statement from the driver in his cruiser shortly after the incident. After investigating, D.C. Butt concluded that after the light had turned green for westbound traffic the respondent started to ride his bicycle but lost balance and fell to the ground in front of the driver’s vehicle. This conclusion is consistent with the prosecution summary for the assault charge against the respondent that D.C. Butt wrote. D.C. Butt also testified that the driver’s vehicle was stationary at the time of the incident, not in motion and had not entered the crosswalk. D.C. Butt testified that the accused had no visible injuries but said he was hurt and asked for an ambulance, so an ambulance was called for him.
25D.C. Butt, the officer on the scene within a few minutes of the incident, testified that he observed the respondent’s bicycle laying in the crosswalk some six to eight feet away from where the driver’s vehicle had stopped behind the white stop line before the crosswalk. D.C. Butt said there was damage to the front brake of the respondent’s bicycle and said if the bicycle had been hit from behind by the driver’s vehicle there would have been damage at the rear of the bicycle. D.C. Butt concluded there had been an assault but no collision and testified that Officer Kumar came to the same conclusion. D.C. Butt testified with the aid of his notes and other police records which were substantially consistent with his testimony at the hearing. D.C. Butt’s testimony was not shaken in cross-examination and I accept his testimony as credible and reliable.
26I find that the respondent’s injuries did not arise out of the use or operation of an automobile based on the testimony of the driver and D.C. Butt.
27The driver’s testimony is corroborated by the audio statement he gave to D.C. Butt at the scene and by the statement he gave to the applicant approximately a year later. It is also consistent with the fact that the respondent’s bicycle was not damaged at the rear as observed by D.C. Butt.
28D.C. Butt was the only independent witness who testified at the hearing. D.C. Butt, a police detective trained and experienced in investigative techniques, was on the scene within minutes of the incident because he was nearby. I prefer his evidence to that of the respondent. D.C. Butt observed the scene, the driver, the respondent, the vehicle and the bicycle and at the end of his investigation concluded that the vehicle was stopped at the traffic light when the respondent started to pedal his bicycle, lost control and fell off his bicycle without any contact from the vehicle. D.C. Butt’s testimony is consistent with the notes, reports and prosecution summary he prepared in connection with the incident.
29To the contrary, I find that the respondent’s testimony is not reliable for the following reasons. Firstly, the respondent’s testimony at the hearing is contrary to statements he made at the time as reported by ambulance and hospital personnel. The respondent disagreed with his weight as noted by the police at the time of the incident. The respondent disagreed at the hearing with his August 24, 2018 statement and testified that he now remembers that he struck his head on the bumper of the vehicle. The respondent admitted in cross examination that the same statement says nothing about him being under the front of the car with the bumper in his neck, as he testified at the hearing. Although the respondent testified that his version of events was recorded incorrectly by others, there are so many reports that he now denies or says he never made for this to be likely.
30Secondly, the respondent’s testimony is not corroborated by the testimony of any other witness or any other evidence, including the damage to his bicycle. There is no evidence that the driver’s vehicle impacted the back wheel of the bicycle from behind which caused him to fall off his bicycle except the respondent’s self-serving testimony which I find to be unreliable for the above reasons.
31Thirdly, the respondent’s testimony conflicts with the testimony of D.C. Butt. D.C. Butt is an independent professional investigator. There is no evidence before me that D.C. Butt has any reason to side with one party over another. I find D.C. Butt’s testimony more credible.
32Based on the factual findings I have made; I find that the incident does not meet the purpose test because any injuries the respondent may have suffered as described in s. 3(1) of the Schedule do not arise out of the use or operation of an automobile. The fact that the respondent fell near the driver’s vehicle is not enough to establish that his injuries arose from the use or operation of an automobile despite the respondent’s submission to the contrary. To meet the definition of accident in s. 3(1) of the Schedule the use or operation of an automobile must directly cause an impairment or damage, not just be nearby.
33Although the respondent argues that the motion of the two vehicles is a key part of the purpose test and the respondent was led too close to the curb and was in a defensive mindset, there is no evidence establishing these facts. I have found that the driver’s vehicle was not moving when the respondent fell off his bicycle. Even if the respondent was in a defensive mindset at the time of the incident, as opposed to an aggressive mindset, this is not a relevant consideration in the finding of fact that he fell off his bicycle independent of the driver’s use or operation of his vehicle.
Did the use or operation of an automobile directly cause the respondent’s injuries (the causation test)?
34Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal4:
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.
35As I have found the purpose test has not been met, further analysis concerning the direct cause test is not necessary.
ORDER
36For the reasons above, I find that the respondent was not involved in an accident as defined in the Schedule.
Date of Issue: March 12, 2021
_______________________
Avril A. Farlam, Vice Chair
Footnotes
- O.Reg. 34/10
- Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 [SCC]; [1995] 3 S.C.R. 405; Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ON CA); Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226.
- Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 para 14.
- Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ON CA).