Citation: Alsaghir v. The Co-operators General Insurance Company, 2022 ONLAT 20-010596/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:

Salem Alsaghir

Applicant

And

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Samia Makhamra

APPEARANCES:

For the Applicant: Georgina Masgras, Counsel

For the Respondent: Kathleen O`Hara, Counsel

Heard by Way of Written Submissions

OVERVIEW

1This matter arises from an incident that occurred on August 23, 2018 (the “incident”), when the Applicant parked his vehicle in someone else’s parking spot and, as a result, the Applicant was yelled at, and his vehicle was vandalized.

2The Applicant claims that the incident is an automobile accident that left him with psychological injuries and sought benefits, pursuant to s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

3The Respondent disagrees and has denied the benefits on the basis that the incident was not an automobile accident.

4The parties have sought a preliminary issue determination on whether the applicant was involved in an “accident” for the purposes of entitlement to statutory accident benefits.

RESULT

5I find that the Applicant was not involved in an “accident” as defined in the Schedule.

FACTS

6The facts are not in dispute. On the August 23, 2018, the Applicant had driven with his wife and three daughters to his youngest daughter’s medical appointment. He dropped his wife and youngest daughter at the clinic and went to park the vehicle.

7The Applicant found a spot in an outdoor surface-level parking lot at 206 James Street, Hamilton, and parked. After some time, he and his two older daughters left the vehicle to check on his wife and youngest daughter. They all met up at the medical clinic’s entrance.

8As the family returned to the parking lot, the Applicant saw branches and rocks on top of his vehicle. A bystander told him that the debris had been put on the vehicle by a man and a woman standing by.

9While the bystander called the police, the female assailant approached the Applicant, swearing and raising her arms. He thought she might hit him.

10There was no physical contact between the assailant and the Applicant.

11The Applicant attended an Examination under Oath on October 6, 2020, wherein he provided this account of the incident.

ANALYSIS

The Schedule

12For the incident to be an automobile accident, the Applicant must prove on a balance of probabilities that it meets the definition of an “accident”, according to s. 3(1) of the Schedule. This section defines an “accident” as: “an impairment in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”

13There is a two-part test to the definition of an “accident”, the purpose test and the causation test. Whether the incident in question satisfies the purpose and causation tests is fact-dependent and determined in light of the particular circumstances, such as: what the applicant was doing and whether he was operating the vehicle; the timing of the events that led to the injuries; the location of the applicant in relation to the vehicle; and whether the injuries he suffered were directly caused by his operation of the vehicle.

14The Court of Appeal for Ontario in Greenhalgh v. ING Halifax Insurance¹ (“Greenhalgh”), stated that the language of the provision sets out the test as involving a consideration to the following two questions:

i. Did the incident arise out of the use or operation of an automobile?

(the purpose test)

ii. Did such use or operation of an automobile directly cause the impairment?

(the causation test)

15The Court of Appeal set out two questions that must be answered in order to determine the "causation test":

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

ii. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted 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?

16The Court of Appeal went on to suggest the following tests to assist decision-makers in determining how to answer the causation test:

i. The “but for” test

ii. The intervening act that may serve to break the link of causation

iii. The dominant feature of the incident, which is the aspect of the incident that most directly caused the injuries.

Submissions of the Parties

The Applicant

17Both parties agree that the purpose test is met, because parking a vehicle is an ordinary and expected use of a vehicle. The parties instead disagree on causation.

18The Applicant submits that the incident met the causation test:

• There was no intervening cause breaking the chain of events: i.e., the applicant suffered psychological injuries from seeing the damage done to the vehicle, which was followed by the actual (verbal) assault, that also led to psychological injuries.
• If damage to the vehicle is considered an intervening act, then damage to the vehicle is a normal incident of the risk created when taking someone else’s parking spot. Here the Applicant makes submissions on road rage and how it is part of the ordinary use of a vehicle nowadays.
• Parking of the vehicle is the dominant feature which directly led to the psychological injuries. The assault only exacerbated the injuries.

The Respondent

19The Respondent disagrees. It submits that there are several intervening causes between the use of the vehicle and the onset of the injuries the Applicant is alleging. In short, the use of the vehicle ended when the Applicant exited the vehicle and the parking lot. As such, the events that transpired afterwards are all intervening causes.

20The Respondent relies on assault cases that have considered the assault to be an intervening cause. For example, in B.A. and Gore Mutual Insurance Company², the claimant was physically assaulted by mechanics during a dispute at a repair shop. Despite the vehicle being the subject of the dispute, the incident did not constitute an “accident”. In G.S. and Wawanesa Insurance Company³, the assault took place in a parking lot and began while the claimant was standing outside of his vehicle. Even though the claimant’s body struck the vehicle during the assault, the incident was found not to be an “accident”. In S.R. and Unifund Assurance Company⁴, this Tribunal found that an assault against a claimant, which took place when he was attempting to park, but had exited his vehicle to speak to the would-be assailants, was not an “accident”.

Findings

The Purpose Test

21I find that the purpose test was met. Parking is an ordinary use of a vehicle, and, as such, I agree with the parties that the purpose test is satisfied.

The Causation Test

22Relying on my finding that the ordinary use of a vehicle at issue is parking, I then find that the incident does not satisfy the causation test. In applying the causation test as set out in Greenhalgh, I find that the alleged injuries the Applicant suffered were not directly caused by the use or operation of his vehicle.

23Though each case must be determined by the specific facts at issue, I find the intervening act analysis is helpful in this case, because it reminds decision-makers to rule out any event that did not arise from the normal risk created by the use or operation of the vehicle⁵. Or, as noted in Greenhalgh, an intervening act may break the link of causation if it cannot be said to be part of the ordinary use or operation of the automobile.

24In this case, I am not persuaded that the damage done to the vehicle, which is claimed to have caused psychological injuries, or the assailant’s behavior, also claimed to have caused psychological injuries, form part of the normal risk of parking a vehicle.

25Here, I agree with the Respondent. When the Applicant left the vehicle and the parking lot, the use of the vehicle ended. The events that happened subsequent to that – i.e., seeing the damage done to the vehicle and the verbal assault by the assailant – are both intervening acts.

26The Applicant submits his case is similar to L.L. and Intact Insurance⁶ (L.L.), which is a case wherein the claimant was already psychologically injured (fear) from the use or operation of a car after being struck and injured by the car door, and was subsequently assaulted by being struck in the face. The subsequent assault of the assailant in getting out of his car and striking the claimant in the face did not break the chain of causation. The Tribunal stated that there was no evidence that the long-term psychological impairments were caused solely by the assailant striking the claimant in the face.

27The current case is distinguishable. In L.L., Intact had already agreed that the first assault (i.e., with the car door) was an accident under the Schedule. The disagreement was whether the injuries were due to the first or second assault.

The Dominant Feature

28In further support of my findings, I then conclude that the dominant feature of the incident is the altercation that took place, because it is the aspect of the incident that most directly caused the alleged injuries. I disagree with the Applicant that the dominant feature in the incident was the parking of the vehicle. Regardless, having found that there were intervening acts, the dominant feature would not be enough to find that the incident met the definition of an accident under the Schedule.

CONCLUSION

29Based on the foregoing, I find that the Applicant was not involved in an “accident”, under the Schedule. Since the incident is not an “accident”, the applicant is not entitled to accident benefits under the Schedule.

Footnotes

1. 12004 CanLII 21045 (ON CA).
2. 22018 CanLII 112128 (ON LAT).
3. 32017 CanLII 148391 (ON LAT).
4. 42021 CanLII 18297 (ON LAT).
5. 5Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA), 2002 CarswellOnt 2652, [2002] O.J. No. 3135, at para. 29.
6. 62019 CanLII 18331 (ON LAT).