Fouad Sorouri v. Intact Insurance Company, 2022 CanLII 92722

Citation: Sorouri v. Intact Insurance Company, 2022 ONLAT 20-003723/AABS – PI

Licence Appeal Tribunal File Number: 20-003723/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:

Fouad Sorouri

Applicant

and

Intact Insurance Company

Respondent

PRELIMINARY DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Nilo Grarbar, Paralegal

For the Respondent: Elisa Cogan, Counsel

HEARD: By way of written hearing

REASONS FOR PRELIMINARY DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on March 24, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUES

2At the Case Conference², the parties consented to the following preliminary issue to be decided by the Tribunal:

a. Was the applicant involved in an “accident”?

LAW

3Section 2(3) of the Schedule provides that the benefits set out in the regulation shall be provided in respect of “accidents.”

4Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment […].”

5In Chisholm v. Liberty Mutual Group³, 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.

6The test was further refined by the Court in Greenhalgh v. ING Halifax Insurance Company⁴ 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”?

7The Causation Test concerns whether 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.

8Using the Causation Test, the applicant must show not only that the automobile was the location of the injury he/she/they obtained, or that the automobile was involved in the incident related to the injury, but that the use or operation of the automobile directly caused the injury⁵.

9In preliminary issue matters, when an applicant is trying to establish accident benefit coverage, the onus of proof rests with the applicant⁶.

factual history

10The parties agree that on the day of the accident, the applicant was driving his automobile to provide Uber services. The applicant accepted an Uber request and parked in a parking lot to wait for his passengers.

11As the applicant sat in the driver’s seat, waiting for his passengers, he saw 3 women and a man walk towards his vehicle. The applicant noted that his passengers were being “assaulted”⁷ and chased into the parking plaza by a group of unidentified people. The people were pushing and yelling at the applicant’s female passengers as they walked towards the applicant’s car.

12The 3 female passengers opened the back door of the applicant’s vehicle and sat in the rear, passengers’ seat, while the male passenger sat in the front, and the applicant locked the vehicle’s doors.

13While the applicant slowly drove out of his parking spot, the unidentified assailants tried to open the back door of the vehicle to remove a female passenger out of her seat. The applicant asked the assailants to stop grabbing his customers while the customers screamed in fear.

14One of the assailants then stood next to the applicant’s open driver’s window, leaned in and told him to “stay out of it”. The applicant asked the assailants to stop, when one of the assailants tried to open the driver’s door and remove the applicant from his vehicle by putting his hands inside the car and trying to punch and push the applicant’s face.

15The assailant then opened the driver’s door while the applicant’s car was still in gear and moving slowly. The assailant tried to remove the applicant from his vehicle by pulling and twisting the applicant’s left hand, but the applicant’s body did not hit his vehicle. The assailant then opened the driver’s door and pulled the applicant’s left hand to try to remove him from the vehicle while said vehicle was slowly in motion.

16Then, at least 6 other unidentified assailants ran towards the applicant’s vehicle and began attacking it and broke the driver’s door and window, the rear driver’s window, the back windshield, the side mirrors and the back up camera.

17The applicant stated the whole incident took a maximum of twenty seconds and that during such, he feared for his life.

Positions and EVIDENCE

Purpose Test

18The applicant submitted that the incident described above consists of an accident pursuant to the Schedule. He submitted that as a result of the accident, he suffered several injuries including a left rotator cuff tear, post-traumatic stress disorder, Whiplash Associated Disorder II, thoracic sprain/strain, Headaches (tension/cervicogenic), sprain/strain and/or dislocation of elbow, dislocation/sprain/strain of shoulder girdle, and wrist/hand sprain/strain/dislocation.

19As a result of these injuries, the applicant has sought treatment including physiotherapy, pain relief and psychological counselling⁸.

20The applicant submitted that based on the purpose test and causation test described above, it is clear that the applicant’s injuries were caused by an automobile accident.

21In relation to the purpose test, the applicant submitted that it is obvious that the applicant was operating his vehicle in his role as an Uber driver at the time of the accident, as he was picking up the passengers described above. The applicant submitted that it is an established principle, as seen in North Waterloo Farmers Mutual Insurance Co. v. Samad⁹, that picking up and dropping off passengers forms part of the ordinary use and operation of an automobile.

22In terms of the purpose test, the applicant submitted that there was no active use aspect, as seen in Economical v. Caughy¹⁰. However, since the applicant was driving and operating the vehicle during the accident in question, he submitted that the picking up and dropping off of passengers is an ordinary and well-known activity to which automobiles are used. Therefore, the purpose of such activity is obvious, and the purpose test is satisfied.

23The respondent disagreed with this position and submitted that the incident described above did not arise out of the use or operation of an automobile, or in the alternative, of the ordinary and well-known activities which cars are used in, as seen in Greenhalgh v. ING Halifax Insurance Co.¹¹. The respondent argued that picking up passengers is not an ordinary and well-known activity to which cars are put.

24Instead, the respondent submitted that the applicant’s ordinary and regular use of his automobile ended once the verbal threats and physical assault began, and the applicant began to be afraid.

25The respondent directed me to decisions to support this decision including 18-001029 v Primmum Insurance Company¹², Fariad v. Intact Insurance Company¹³, and L.L.B. v Intact Insurance Company¹⁴.

26After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has satisfied the “purpose test.

27I find that the applicant has satisfied the test developed in Chisholm v. Liberty Mutual Group and refined in Greenhalgh v. ING Halifax Insurance Company¹⁵. This is because the applicant has shown that his injuries arose out of the ordinary and well-known activities to which cars are put, namely picking up and dropping off passengers as a ride share driver.

28I was more persuaded by the applicant’s submissions regarding the normal use of the automobile in relation to North Waterloo Farmers Mutual Insurance Co. v. Samad¹⁶, and agree that picking up and dropping off passengers, like in both North Waterloo and the subject matter before me, form part of the ordinary use and operation of an automobile.

29With regard to the respondent’s submissions of 18-001029 v Primmum Insurance Company¹⁷, I found this matter less than persuasive, as in that matter, there was a verbal dispute between the applicant and his assailants, which turned physical and was not part of what would be considered the normal use or risk associated with operating a vehicle, nor was the applicant in that matter a person providing taxing or rideshare services. Therefore, I put little weight on this matter.

30With regard to Fariad v. Intact Insurance Company¹⁸, and I found this matter to be less than persuasive, as, again, there was a verbal altercation between the applicant and 2 rideshare passengers. which was not the case in the subject matter. Furthermore, in original application upon review of the Tribunal’s original decision regarding Mr. Fariad¹⁹ there was an issue of unreliable witness testimony regarding the circumstances of the applicant’s injuries, which is not the case here.

31Finally, I also considered L.L.B. v Intact Insurance Company²⁰, I found this matter to be distinct from the subject matter before me, as the applicant was not working as a taxi or rideshare driver, and like the previous matter discussed, involved a verbal altercation prior to her assault. Therefore, I find this case to be less than persuasive.

CAUSATION

Causation – the “But For” test

32The applicant submitted that that the circumstances of the incident above satisfy the “but for” part of the causation test. He argued that as he was the driver, appropriately seated and belted during the accident.

33Furthermore, from the start to the end of the incident, his car was moving and not parked, and required him to apply the brake to slow the car to limit the potential injuries caused by the assailants to himself, his passengers, and his vehicle.

34Based on this, he submitted that his use and operation of his vehicle was the direct cause of his injuries, and that ‘but for’ being belted in a seated position while using his acceleration and brake pedals, he would not have had his arm twisted and injured. As he was actively using his vehicle at the time of the incident while being injured by the assailants, he has satisfied this component of the causation test.

35The respondent did not make specific submissions to address the “but for” test, therefore I accepted that the respondent was not disputing this component of causation.

Causation – the Intervening Act

36The respondent argued that that the applicant must show that his use and operation of his vehicle directly caused his injuries, which the applicant has not done. The respondent also submitted that the applicant had not shown that his assault was not an intervening act, and thereby, has not satisfied the causation test.

37Instead, it submitted that the “intervening act” consideration of the causation test²¹ began when the applicant had his Uber customers enter his vehicle and lock the doors to ensure their security. The “intervening act” continued as the assailants tried to open the rear, passenger door and verbally threatened the applicant, and then assaulted the applicant.

38Based on this, the respondent submitted that the alleged injuries to the applicant are temporally linked to him trying to escape his assault and not his use and operation of his vehicle.

39The applicant submitted that the “direct cause”²² of the incident was the applicant’s direct and active use and operation of his automobile for its ordinary purpose, namely picking up and dropping off passengers. He also argued that the assault was as a result of his role as an Uber driver and is a foreseeable risk and circumstance when using or operating his vehicle as such.

40Further, and in the alternative, the applicant submitted that the operation of the motor vehicle was a prominent contributing cause for his injuries. Based on the principles of North Waterloo Farmers Mutual Insurance Co. v. Samad²³, the applicant argued that the actions of his assailants were a contributing cause and not a direct cause of his injuries, nor can it be isolated from the applicant being belted and driving the vehicle²⁴.

41In terms of the intervening act, the applicant submitted that there was no intervening act, as the applicant’s injuries resulted from an uninterrupted chain of events flowing from his use of the motor vehicle.

Causation – the Dominant Feature

42The applicant submitted that his active operation of the vehicle at the time of the incident was the direct cause of his injuries and that his assault was not the dominant feature of this incident. Instead, he argued that his active operation of the vehicle at the time of his assault directly caused his injuries. He based this on the fact that his car was moving while he was restrained was the dominant feature of the incident, as seen in Dittmann v Aviva Insurance Company of Canada²⁵.

43As taxis and Ubers are required to have insurance for commercial use, this demonstrates that there is an added liability and inherent risk to such services, as is the case for the applicant. As it is common use for taxies and ride share drivers is to pick up and drop off clients, who may be intoxicated, there is an increased and foreseeable risk of incident and assault.

44The respondent disagreed with this position. It submitted that under the “dominant feature” analysis, the applicant must show that his use or operation of the vehicle was the dominant feature of the incident, which is not the case here. Instead, it submitted that that once the assailant assaulted the applicant, the assault became the “dominant feature” of the incident.

45It relied on the applicant’s testimony, where he stated that no part of his body hit the vehicle, nor was he injured by the broken glass²⁶. The respondent also submitted that the applicant’s only injury was to his left shoulder. Thereby, the applicant’s use or operation of the vehicle was secondary in nature to his fear and attempts to thwart the assault, as seen in G.S. v. Wawanesa Mutual²⁷.

46Based on this, the respondent submitted that the applicant has not met his burden under the causation test and that the incident does not constitute an “accident” as defined by the Schedule.

ANALYSIS

47After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the incident described above does not constitute an accident pursuant to the Schedule.

48In terms of the “but for” test, it is clear that but for the applicant operating and being buckled into his vehicle, his injuries would not have occurred. Furthermore, as the respondent did not challenge this, I accepted that the applicant has satisfied the “but for” aspect of the causation test.

49In terms of the intervening act, I agree with the applicant’s position, namely that there was no intervening act; the assault was an act that intervened with the ordinary course of picking up passengers.

50Unlike in the matters of 18-001029 v Primmum Insurance Company²⁸, Fariad v. Intact Insurance Company²⁹, and L.L.B. v Intact Insurance Company³⁰, relied upon by the respondent, in this case, the subject accident did not involve any kind of verbal altercation or escalation, which could or would have caused a broken chain of events. Instead, the applicant in the subject matter tried to preserve his safety by asking the assailants to stop trying to enter his vehicle. Like Dittman, the applicant was injured in the course of his operations as a driver.

51Instead, I was presented with evidence that the applicant did and continued to use and operate his vehicle while being assaulted and then tried to escape; had the applicant stopped his vehicle or directly engaged with the assailant, this too could have broken the chain of events. However, since this was not the case, I find that there was no intervening act.

52I also agreed with the applicant’s arguments with respect to Downer v. The Personal Insurance Company³¹, that the case is less relevant as the facts are distinct; In Downer, the vehicle was parked when the assault took place and that Downer’s injuries were caused by the assault and not trying to escape.

53I agreed that the applicant has not shown that his use or operation of his vehicle was the dominant feature of the incident. I also found that the applicant had not shown that his injuries were as a result of him operating the vehicle, rather than being assault while driving, and found G.S. v. Wawanesa to be similar in that regard, and therefore, persuasive.

54I noted that the applicant did not provide any persuasive medical evidence that spoke to his injuries being caused by his operation of his vehicle and not the assault. I find that the applicant’s injuries were not caused by his use, care and control of his vehicle as a rideshare driver, but rather, as a result of his assault.

55Though I appreciated the applicant’s submissions with regards to Dittman, I did not find this argument persuasive, as I found the assault to be an intervening act. Moreover, I find that the assault to be “out the ordinary course of things” pursuant to paragraph 15 of Dittman and therefore not applicable.

56In terms of the applicant’s submissions regarding having commercial insurance, though I understood them, these submissions were not substantiated by evidence commenting or confirming this position, and therefore, I did not accept it.

57As the applicant has not satisfied the intervening act aspect of the but for test, his injuries are found to not be as a result of his accident, but rather the assault.

CONCLUSION and order

58The events that occurred on March 24, 2019, does not constitute an accident under the Schedule.

59The applicant is not permitted to pursue his application related to the substantive issues in dispute.

Footnotes

1. 1O. Reg. 34/10.
2. 2Held on October 7, 2020.
3. 3Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ONCA).
4. 4Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA).
5. 5Downer v. The Personal Insurance Company, 2012 ONCA 302.
6. 617-006174 v. Travellers Insurance Company, 2018 CanLII 115647 (ON LAT).
7. 7Based on the Examination Under Oath Transcript of the applicant, Fouad Sorouri, November 26, 2020.
8. 8Based on the clinical notes and records of Dr. Edwin Lee and the OCF-3 of Dr. Nolen dated March 28, 2019.
9. 9North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143.
10. 10Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226.
11. 11Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA) at paras. 10-12.
12. 1218-001029 v Primmum Insurance Company, 2019 CanLII 22205 (ON LAT).
13. 13Fariad v. Intact Insurance Company, 2021 ONSC 6965
14. 14L.L.B. v Intact Insurance Company, 2020 CanLII 95904 (ON LAT).
15. 15Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA).
16. 16North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143.
17. 1718-001029 v Primmum Insurance Company, 2019 CanLII 22205 (ON LAT).
18. 18Fariad v. Intact Insurance Company, 2021 ONSC 6965
19. 19Fariad v. Intact Insurance Company, 2020 CanLII 101927 (ON LAT)
20. 20L.L.B. v Intact Insurance Company, 2020 CanLII 95904 (ON LAT).
21. 21Chisholm at para. 25, see 3.
22. 22As seen in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ONCA).
23. 23North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143.
24. 24Based on the Examination Under Oath Transcript of the applicant, Fouad Sorouri, November 26, 2020.
25. 25Dittmann v Aviva Insurance Company of Canada, 2016 ONSC 6429.
26. 26Based on the Examination Under Oath Transcript of the applicant, Fouad Sorouri, November 26, 2020.
27. 2716-003963 v Wawanesa Mutual Insurance Company, 2017 CanLII 148391 (ON LAT).
28. 2818-001029 v Primmum Insurance Company, 2019 CanLII 22205 (ON LAT).
29. 29Fariad v. Intact Insurance Company, 2021 ONSC 6965
30. 30L.L.B. v Intact Insurance Company, 2020 CanLII 95904 (ON LAT).
31. 31Downer v. The Personal Insurance Company, 2012 ONCA 302.