[R. S.] v. Optimum Insurance Company, 2022 CanLII 65541

Citation: [R. S.] v. Optimum Insurance Company, 2022 ONLAT 20-006166/AABS - A

Licence Appeal Tribunal File Number: 20-006166/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:

[R. S.] (By his representative, W. N.)

Applicant

and

Optimum Insurance Company

Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant: Eron Zaltz, Counsel

For the Respondent: Kadey Schultz and Steve Whibbs, Counsels

Heard by way of Videoconference on: October 13, November 15-16, 2021, April 11 and 19, 2022

REASONS FOR DECISION AND ORDER

BACKGROUND

1[R. S.] (“applicant”) was injured in his 2000 Volkswagen Jetta motor vehicle (the “vehicle”) on May 1, 2016 (the “incident”), while driving on a secluded, forested two-lane road on or near the grounds of a local college in a small city in northern Ontario. The applicant sought accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Optimum Insurance Company (“respondent”) denied accident benefits.

2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3At the case conference, the Tribunal ordered that the preliminary issue below be heard before any substantive issues.

PRELIMINARY ISSUE

4The preliminary issue to be decided is:

i. Does the applicant’s motor vehicle incident of May 1, 2016 meet the definition of an “accident” in the Schedule?

RESULT

5The applicant’s motor vehicle incident of May 1, 2016 meets the definition of an “accident” in the Schedule. No costs are awarded to the respondent.

LAW

6Section 3 of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment…”

7The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused the applicant’s injuries.²

ANALYSIS

Was the incident an “accident”?

8I find that the applicant’s motor vehicle incident of May 1, 2016 meets the definition of an “accident” in the Schedule.

9The Ontario Court of Appeal established a two-part test to determine whether an incident is an “accident” as follows:³

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.

10If 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.”⁴ The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.”⁵ Direct causation requires a determination of the “dominant factor that physically caused the applicant’s injuries”.⁶

11The 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)?

12The applicant submits that he was involved in an accident because he was injured while using and operating his, to drive to an outdoor space to meditate.

13The respondent does not concede that the purpose test is met.

14I find that the purpose test is satisfied because driving his automobile is an ordinary and well-known activity to which a vehicle is put. For reasons set out below, I find that the applicant was not using his motor vehicle on May 1, 2016 for an aberrant purpose, specifically to attempt suicide.

15The real issue here is whether the applicant’s automobile was a direct cause of the applicant’s injuries and therefore will address the balance of the test.

Did the use or operation of an automobile directly cause the applicant’s injuries (the causation test)?

16Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal:⁷

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.

17The applicant submits that he meets the legal test of an “accident” under the Schedule. The applicant submits that despite his long history of mental health issues and addiction, and even considering that he has said before that he would end his life, he has never acted on these suicidal thoughts and did not act on them on May 1, 2016. The applicant also submits that I should prefer the testimony of the applicant, his mother and Dr. Zakzanis over that of the written records when determining the facts of this incident.

18The respondent submits that the applicant was using his automobile in a deliberate manner to end his own life, a suicide attempt, and therefore, the incident was not an “accident” as that term is defined in s. 3(1) of the Schedule. The respondent submits that using his automobile in a suicide attempt is an aberrant use of his automobile and therefore, not within the “ordinary course of things” or a normal risk of using or operating an automobile. As a result, the dominant cause of the applicant’s injuries was his suicide attempt, not the use or operation of the vehicle. The respondent relies on various case law and ss. 3(1), 2(1) and 53 of the Schedule and seeks a dismissal of the applicant’s application.

19I find that the dominant factor that caused the applicant’s injuries was the unintended loss of control of his motor vehicle while he was driving it. Although the applicant has a history of mental health issues since adolescence, I find that the applicant was not using his automobile on May 1, 2016 in a suicide attempt for the following reasons.

20Firstly, although there is no requirement to inform anyone, the applicant did not express any intention on May 1, 2016 to anyone to commit suicide by way of his motor vehicle, and none can be inferred from the pre-incident activities of the applicant that day. The applicant’s testimony was that earlier in the day on May 1, 2016 he went to church with his son, took his son out for brunch at a restaurant, spent the afternoon with his son, prepared dinner for the two of them, ate dinner with his son and then invited his son to go with him to an outdoor space with a pond to meditate. The applicant testified that he had gone to this outdoor space to meditate on several occasions before. The applicant said his son preferred to stay home and play video games with his friends, so the applicant left home about 6:30 or 7p.m. and drove for about ten minutes before the incident occurred.

21The applicant’s plan was to meditate for about 20 minutes following which he was planning to go to an AA meeting which would take place at 7:30 or 8pm. He said it would have taken ten to 15 minutes for him to get to the AA meeting from the outdoor space. The applicant also told the ambulance attendant on May 1, 2016 that he was on his way to an AA meeting. This is consistent with the applicant telling his occupational therapist Carole Gour that he was on his way to attend an AA meeting as recorded in her March 15, 2018 OCF-3, disability certificate. The applicant’s 19 year old son attended the first day of the hearing and was to be called as a witness by the applicant. This became impossible due to his unexpected death during the course of the hearing. In these circumstances, and given the evidence above and the lack of any evidence to the contrary, I find that the applicant intended to go to an AA meeting after meditating in the outdoor space. I also find that the applicant’s pre-incident activities on May 1, 2016 are more likely than not inconsistent with an attempt at suicide by vehicle, particularly in view of the fact that the applicant had invited his son to accompany him on the drive to the outdoor space.

22Secondly, the applicant’s actions during the incident are inconsistent with a suicide attempt. The applicant testified that he was driving the vehicle at 50 kilometers per hour, the speed limit on the roadway he was travelling. The applicant testified that during the incident, he tried to correct the vehicle’s course by turning the steering wheel. The applicant testified that during the incident the vehicle’s airbags did not deploy. There is no evidence to the contrary on any of these.

23Thirdly, the conclusion that the applicant was attempting suicide with his vehicle appears to have started with the police officers at the scene. While the police constable’s handwritten notes dated May 1, 2016, indicate the applicant said; “he had been feeling down lately-issues with his wife”, this appears to be in response to a question from the officer about “…stress in his life”. The motor vehicle accident report goes further and records that the applicant “…failed to negotiate slight bend in the road (purposely/suicide attempt)…and indicates “code 33. Suicide attempt”.

24The basis for this conclusion is not clear from the officer’s notes or the motor vehicle accident report. From their notes, the police officers do not appear to have asked the applicant if he had attempted suicide with his vehicle during the incident and the applicant does not appear to have said this to them. Neither police officer testified at the hearing. Further, although the police officers’ notes indicate at the scene of the incident there are “no signs of braking prior to the gravel shoulder…” there is no explanation as to how or if this supports the conclusion that the incident was a suicide attempt. Without explanatory testimony from the officers who wrote the notes and the motor vehicle accident report, these documents remain insufficiently explained and untested hearsay on the central issue in dispute at this hearing. As a result, and in view of the applicant’s testimony to the contrary, I give these documents little weight on the specific issue of whether the incident is an attempted suicide. There is no evidence before me that the police officers were not available to be witnesses. As a result, I find these notes and the report are not sufficient evidence to establish that the applicant attempted suicide by vehicle on May 1, 2016.

25Fourthly, the applicant’s actions immediately after the incident are inconsistent with a suicide attempt. The applicant believes he struck his head on the vehicle during the incident and the medical records contain references to possible loss of consciousness. Post-incident, the applicant testified that he got out of his motor vehicle through the broken window because he could not open the door and walked down the road looking for help. The applicant flagged down a security guard. This is consistent with the police officer’s handwritten notes which indicate the applicant was with College security “down the road” when they arrived at the scene. Although the applicant was in a wooded area with no other vehicles or persons in sight, there is no evidence that the applicant stayed at the scene of the incident and attempted to further injure himself. To the contrary, his immediate reaction was to seek help. I find that this behaviour is more likely than not inconsistent with an attempt at suicide by vehicle.

26Fifthly, the day after the incident, the applicant was assessed by the hospital psychiatrist and released. I find this medical assessment is more likely than not inconsistent with an attempt at suicide by vehicle. I give this evidence greater weight than the notes and report of the police officers, the ambulance attendants and the emergency room physician because, it was performed by a medical specialist within a relatively short time post-incident.

27Sixthly, when the applicant saw Jonathan Collins, his counsellor, a few weeks post-incident, Mr. Collins noted on May 17, 2016 that “the information provided makes me believe this car crash was a suicide attempt. [R.]is now accepting this…” Mr. Collins did not testify at this hearing. There is little information before me about the education, training or experience of Mr. Collins that would qualify him to come to his belief. Further, absent any other explanation, the note made by Mr. Collins on May 17, 2016 shows that the applicant did not share Mr. Collins’ belief. The statement that “[R] is now accepting this” tends to indicate that the applicant was reluctant to “accept” the incident as an attempt at suicide by vehicle. This is consistent with the applicant’s testimony that the incident in fact was not a suicide attempt by vehicle. I give the note of Mr. Collins little weight.

28Although the applicant’s mother, [W. N.], a retired nurse, and his psychologist Dr. Zakzanis testified, I found their testimony to be of little help. Dr. Zakzanis was retained several years post-incident and did not appear to have reviewed all of the applicant’s medical records. The applicant’s mother generally corroborated the applicant’s testimony about his history of struggles with mental health issues and addiction through the years, efforts at rehabilitation and his religious beliefs. However, she admitted that she had no contact with the applicant on May 1, 2016 pre-incident and had no direct knowledge of his state of mind on May 1, 2016.

29The respondent relies on the police, ambulance and hospital records from May 1, 2016 and the pre and post-incident records which the respondent submits establish that the applicant intentionally drove his vehicle off the road on May 1, 2016 in a suicide attempt. None of the makers of these notes testified at this hearing. Without any other explanation, I am prepared to accept the applicant’s testimony that he did not say he had attempted to commit suicide with his vehicle that day, and if he did, it was in circumstances where he had injured his head. In this particular case, I prefer the applicant’s evidence, not seriously shaken in cross-examination, that he did not say he had attempted to commit suicide with his vehicle May 1, 2016, to the records of others not tested by cross-examination.

30Further, there is no evidence before me that either the police or the ambulance attendants who made these notes, apart from likely being the first persons to see the applicant post-incident, have any specific credentials which would qualify them to characterize the incident as a suicide attempt by vehicle. The facts in this case are unlike the situation in which the driver of the vehicle is deceased and not available to testify as to what happened, and findings as to the cause of death made by specialists is the only evidence as to what happened⁸. The notes here purport to record statements made by the applicant and conclusions based on his statements. However, the applicant denies saying he had attempted suicide on May 1, 2016, and if he did, did so at a time when the applicant had injured his head.

31Although the emergency room physician who examined the applicant when he arrived at the hospital assessed the applicant as suicidal, his credentials to do so are not clear from the records. This physician completed a Form 1, application by physician for psychiatric assessment and noted that the applicant “had attempted/was attempting to cause bodily harm to himself”. The basis for this statement is not clear from the records and this physician did not testify at the hearing. When assessed the next day by a psychiatrist, the applicant was released from the hospital with instructions to see his family doctor and follow up with his community support worker. The psychiatrist did not testify at the hearing. Without any further explanation, the discharge from hospital would tend to indicate that the applicant was not a danger to himself or others. I give greater weight to the discharge from hospital made by the psychiatrist because it is made by a medical specialist and made within a day post-incident.

32The fact that the applicant expressed thoughts of suicide for a number of years pre-incident, as recently as two weeks pre-incident, and has done so post-incident, does not establish on the balance of probabilities that he deliberately drove into a rock face on May 1, 2016 in an attempt to commit suicide. The pre-incident records are not sufficiently proximate in time to May 1, 2016 to be reliable proof of any intent or plan that the applicant intended to commit suicide by vehicle on May 1, 2016 and I give them little weight. The post-incident records, except for the hospital discharge records on May 2, 2016, are also not sufficiently proximate in time to the incident to outweigh the applicant’s testimony on whether or not this was a suicide attempt, and more importantly, to outweigh his immediate post-incident actions on May 1, 2016 described above.

33That the applicant was driving to a secluded outdoor space to meditate before going to an AA meeting does not take this incident out of the ordinary course of the use or operation of the automobile, nor does the fact that he was not wearing his seatbelt and the police reported that the applicant had alcohol in his automobile. Not wearing his seatbelt does not establish that the applicant intended to commit suicide by vehicle on May 1, 2016 given the totality of the evidence. Similarly, having alcohol in his vehicle does not establish that the applicant intended to commit suicide by vehicle on May 1, 2016 given the totality of the evidence.

34The automobile itself was the cause of the injury. The applicant’s body struck the vehicle, including his head when he lost control of it in the gravel, was unable to regain control of it despite attempt, and struck the rock face.

35I find the applicant’s testimony to be credible on the issue of whether he was attempting suicide by vehicle on May 1, 2016. His testimony was largely consistent and forthright on his mental health history and his alcoholism and addictions. The applicant made no attempt to minimize his long history of mental health issues and addiction, acknowledged these issues, but explained that he had tried to deal with them and get better by undergoing treatments, attending rehabilitation, becoming religious and attending AA meetings. The applicant admitted he had relapsed sometimes, sometimes he had been hospitalized against his will and had told medical personnel about his suicidal thoughts in the past because that helped him get more immediate medical care. However, the applicant also said he had not acted on these thoughts, did not want to die and would never take his own life because of his religious beliefs and I find this to be credible overall. Despite expressing his suicidal thoughts, the applicant testified that if he really wanted to commit to suicide, he would no longer be alive and I believe him. I recognize that this evidence can be viewed as self-serving but, despite this, I found his testimony to be compelling, convincing and overall credible.

36In cross-examination the applicant’s testimony was not seriously shaken. The applicant confirmed that he did not want to die in the incident, has never actually carried out any suicide attempt with a vehicle and stated that his religious beliefs prohibit him from taking his life. He admitted that he had spoken about taking his hands off the steering wheel hoping to collide with a transport truck in order to end his life but the one time when he did that, he changed his mind and put his hands back on the steering wheel. Considering the totality of the evidence, I find that this behaviour is more likely than not inconsistent with an attempt at suicide by vehicle on May 1, 2016 by the applicant.

37Although the respondent submits that it has no liability to pay benefits and relies on ss. 3(1), 2(1) and 53 of the Schedule and the Insurance Act⁹, including ss. 118 and 447(2)(a.i). I find that these do not assist the respondent here. For the reasons set out, I have that the incident is an accident within the meaning of s. 3(1) of the Schedule. Section 53 provides that an insurer may terminate payment of benefits for a person if the insured person has wilfully misrepresented material facts with respect to the application for the benefit. I have not found that the applicant wilfully represented material facts with respect to his application for benefits or otherwise. To the contrary, I have found him to be a credible witness and have accepted his testimony that he was not attempting to commit suicide with his vehicle on May 1, 2016. Section 53 has no application to the facts of this case. Similarly, I find s. 2(1) does not assist the respondent on these facts.

38Section 118 of the Insurance Act provides that, unless the insurance contract provides otherwise, a contravention of any criminal or other law in force in Ontario or elsewhere does not, by that fact alone, render unenforceable the insured’s claim for indemnity under the insurance contract except where the contravention is committed by the insured with intent to bring about loss or damage. I have not found that the applicant intended to bring out loss or damage. Section 118 has no application to the facts of this case. Section 447(2)(a.i) provides that it is illegal to make a false or misleading statement or representation to an insurer under a contract of insurance. The OCF-1 contains similar language. The Tribunal has found before¹⁰ that a staged collision offends the Insurance Act. On the evidence before me, I have not found that the applicant has staged the collision or made any material, false or misleading statements to the respondent during this application process, in his testimony, in his examination under oath or otherwise. Section 447(2)(a.i) has no application to the facts of this case.

39The respondent conceded in closing submissions that none of the case law it cited involves an attempted suicide by vehicle.

40Having reviewed the respondent’s case law and closing submissions in detail, together with the applicant’s case law and closing submissions, I am of the view that the Tribunal decisions cited by the respondent are not binding on me and I decline to follow them as they are specific to their facts. Further, the Tribunal’s approach in E.C. v. Northbridge Commercial Insurance Corporation¹¹ that medical records are to be accepted as accurate unless the claimant calls evidence to contradict them, is factually distinct from this case. Here, the applicant did call evidence to specifically contradict the May 1, 2016 notes of the police, ambulance attendant and the hospital. The applicant testified that the records about the May 1, 2016 incident being a suicide attempt by vehicle were not accurate and I have found his evidence credible and given it greater weight than the records. This finding is consistent with the approach approved by the Supreme Court of Canada in Ares v. Venner¹² that although hospital records may be admitted as prima facie proof of the facts stated, this in no way precludes a party wishing to challenge the accuracy of the records from doing so.

41The cases cited by the respondent involving property damage claims¹³ are too factually remote to be helpful here as neither the Schedule, nor the definition of accident nor a suicide attempt by vehicle was considered in those cases. Also unhelpful are the respondent’s cases involving a person who jumped from the tailgate of a vehicle into the water and was injured,¹⁴ a driver that died in a vehicle¹⁵, and a dispute over HST on attendant care benefits.¹⁶

42Instead, I prefer to follow the reasoning of the Divisional Court in Porter. The dominant factor that physically caused the applicant’s injuries must be determined and here, it was the applicant’s unintended loss of control of his vehicle and the collision with the rock face that was the dominant cause of the applicant’s injuries.

Would the alleged injuries have occurred “but for” the use or operation of the automobile?

43The “but for” test does not conclusively establish legal causation, the cause that attracts legal liability.

44As Laskin J.A. noted in Chisholm,¹⁷ the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome…the but for test does not conclusively establish legal causation.” Here, the applicant being in his automobile just prior to the incident and being proximate to the automobile when allegedly injured is not determinative of causation. Legal entitlement to accident benefits “requires not just that the use or operation of the car be a cause of the injuries but that it be a direct cause.”¹⁸

Was there an intervening cause?

45I find that the applicant’s injuries were a consequence directly caused by the applicant’s use or operation of the automobile and I find that the collision of the applicant’s vehicle with the rock face caused the applicant’s injuries consequent to his use or operation of his automobile.

46I find there is no independent intervening event, specifically the suicide attempt suggested by the respondent, which broke the chain of events which started with the applicant driving his automobile to the outdoor space and ended with his being injured when he lost control of the vehicle and it collided with the rock face.

Was the use or operation of the automobile a dominant feature of the applicant’s injuries?

47I find that the use or operation of the automobile was the dominant feature of the applicant’s injuries. The applicant was using or operating the vehicle as a means of transportation to his destination, the outdoor space where he intended to meditate, when he lost control of his motor vehicle in the gravel and hit the rock face. I find the evidence does not establish that the applicant was using the motor vehicle for any aberrant purpose, specifically a suicide attempt, and does not establish that the applicant deliberately caused or staged the incident to occur.

48As a result, I find that the incident meets the causation test of an “accident”. This is the applicant’s burden to prove and he has done so.

49Therefore, I find that the applicant’s motor vehicle incident of May 1, 2016 meets the definition of an “accident” in the Schedule.

COSTS

50The respondent requested costs of the applicant’s motion to adjourn this hearing and on the respondent’s motion that the applicant not be allowed to testify at this hearing, both of which motions were determined by my order released November 13, 2021. The respondent’s request for costs of both motions was reserved to the end of the hearing.

51I am not satisfied that the applicant’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Common Rules of Practice & Procedure, October 2, 2017 either in respect of these motions or during the conduct of the proceeding. This is a high bar to meet and the respondent has not met it.

52No costs are awarded to the respondent.

ORDER

53For the reasons above, I find that the applicant’s motor vehicle incident of May 1, 2016 meets the definition of an “accident” in the Schedule. I decline to make a Rule 19 order for costs.

54The Tribunal will schedule a case conference for the substantive issues in dispute.

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct.).
3. 3Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.
4. 4Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 36; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
5. 5Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 14.
6. 6Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107 (Div. Ct.).
7. 7Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA).
8. 8W.R. v. Aviva Insurance Company, 2020 CanLII 40348 (ON LAT).
9. 9Insurance Act, R.S.O. 1990, c.I.8.
10. 1017-000532 v. Intact Insurance Company, 2017 CanLII 87155 (ON LAT), 2017CanLII 87155 (ON LAT).
11. 11E.C. v. Northbridge Commercial Insurance Corporation, 2020 CanLII 98727 (ON LAT).
12. 12Ares v. Venner, 1970 CanLII 5 (SCC), [1970] SCR 608 (S.C.C.).
13. 13York Region Condominium Corporation No. 772 v. Lombard Canada Ltd, 2007 CanLII 3885; Shakur v. Pilot Insurance Co., 1990 CanLII 6671.
14. 14Intact Insurance Co. v. Roberts, 2017 CarswellOnt 4716.
15. 15Vijeyekumar v. State Farm Mutual Automobile Insurance Company, 1999 CanLII 16440.
16. 16Dominion of Canada General Insurance Company v. Ridi, 2021 ONSC 3707.
17. 17Supra note 3 or 14 , para 25.
18. 18Ibid., para 26.