Amritpaul Athwal v. AIG Insurance, 2023 CanLII 125815

Citation: Athwal v. AIG Insurance, 2023 ONLAT 23-003788/AABS-PI

Licence Appeal Tribunal File Number: 23-003788/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:

Amritpaul Athwal

Applicant

and

AIG Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

David Himelfarb, Counsel Melissa Gizzo, Counsel

For the Respondent:

Katherine Kolnhofer, Counsel Damien Van Vroenhoven

Heard by way of written submissions

OVERVIEW

1Amritpaul Athwal, the applicant, was involved in an incident on February 15, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, AIG Insurance (“AIG”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule?

RESULT

3The applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

ANALYSIS

Background

4The applicant is a truck driver. He hauled a load to Fort Wayne, Indiana on February 14, 2020. He went to sleep around 8:00p.m. He turned on the Webasto heater in his D13 Volvo transport truck. The applicant lost consciousness. The following morning, he was found by Officer Dan Ulrich and Detective Kevin Hamrick of the New Haven Police Department. He was found on the floor between the driver and passenger side seat. His legs were near the Webasto heater. He sustained burns on his legs, ankles shins and calves. He was taken to St. Joseph’s Hospital. He was subsequently transferred to Sunnybrook where he underwent bilateral knee amputations on February 22, 2020.

Parties’ positions

5The applicant submits that his injuries fall within the definition of an accident pursuant to section 3(1) of the Schedule.

6The respondent submits that he was not involved in an accident.

Was the incident an “accident”?

7For the following reasons, I find that the applicant was involved in an “accident” as defined by section 3(1) of the Schedule.

8Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

9The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.

10In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:

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?

11The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh v. ING Halifax Insurance Company, (2004), 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?

12The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:

a. The “but for” consideration;

b. The “intervening act” consideration, which may be used to determine if some other event took place that cannot be said to be part of the ordinary course of use or operation of the vehicle; and,

c. When faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what “most directly caused the injury”.

The Purpose Test

13The applicant submits that he meets the purpose test because he was sleeping in the cab of his parked transport truck when the accident occurred. His truck was specifically designed for this purpose as it had a built-in sleeper bed in its cab. Sleeping in the cab of a transport truck is an ordinary and well-known purpose to which this kind of automobile is put and constitutes the use and operation of an automobile.

14The respondent submits that the applicant is unable to meet the purpose test because the presence of a gasoline-powered generator inside the truck confirms that the applicant introduced a combustible element into the cab. The vehicle was not being used as ordinarily intended. The respondent asserts that the improper storage of the generator or gasoline near the cab heating system suggests the “purpose test” is not met in the present circumstances. Similarly, operation of a kettle near the truck sleeper cab would not meet the “purpose” test either given the obvious risk posed to operators.

15I am satisfied on a balance of probabilities that the purpose test has been met because the incident arose out of the ordinary and well-known activities for which automobiles, such as a truck, are put. I agree that parking an automobile and sleeping in the cab of a transport truck is an ordinary and well-known purpose to which this kind of automobile is put and constitutes the use and operation of an automobile. Furthermore, I also note that using a heater that is part of the design of the transport truck to stay warm during the winter season is also an ordinary and well-known activity for which an automobile is put.

16I am not persuaded by the respondent’s position because there is no evidence that a gasoline-powered generator or the kettle were in use at the time of the accident. The respondent’s position is speculative.

The Causation Test

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

17Based on the facts and evidence before me, I find that the applicant would not have sustained these injuries “but for” sleeping in his parked truck. As Laskin J.A. noted in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA)(“Chisholm”) 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.”

18Since the but for test does not conclusively establish legal causation, the analysis turns to a consideration of whether there was an intervening act that severs the chain of causation.

Was there an intervening cause?

19The applicant submits that the Investigation Report dated October 31, 2023 by Stephen R. Hawken, professional engineer, definitively concludes that the source of the heat that caused the burn injuries to his legs was the hot air discharged from the heater installed within the truck.

20The respondent submits that even it is accepted that the heater caused the injuries, the applicant’s stroke, loss of consciousness and unusual placement on the floor of the cab would be an intervening act that would break the chain of causation so as to no longer constitute ordinary use and operation of the truck. The respondent also asserts that interference from a gas-powered generator and the unusual proximity to a heat source such as a kettle were also acts that led to the injuries.

21I am unable to determine whether there was an intervening act that would break the chain of causation. The respondent is relying on various theories in support of its position. The first theory is that the applicant’s stroke broke the chain of causation.

22Furthermore, while there is evidence that the applicant suffered a right caudate and internal capsule infarct (an ischemic stroke), there is no conclusive evidence that this caused his loss of consciousness. In the Neurology Stroke Consult note dated February 24, 2020, Dr. Mark Boulos and Dr. Ryan Muir concluded that it is “impossible to know whether this subcortical infarct was the cause or as a consequence of the sequelae that followed his injuries. It is unusual for subcortical strokes to cause sudden loss of consciousness unless there were bilateral thalamic infarcts, diffuse cortical injury or brainstem infarction.” I note that there was no evidence before me that there were any were bilateral thalamic infarcts, diffuse cortical injury or brainstem infarction.

23Moreover, in the Neurology Stroke Consult note dated February 28, 2020, Dr. Conrad Eng noted that, “the stroke does not explain why he lost consciousness”. Furthermore, on June 15, 2020, Dr. Amy Yu of the Stroke Prevention Clinic concluded that “certainly the stroke occurred in the context of acute illness, post-surgical state, infection and metabolic abnormalities which have now largely stabilized”.

24The second theory advanced by the respondent is that the kettle caused the applicant’s burns. Based on the evidence, I note that there was a kettle found in the truck. The respondent is relying on a report from Mark Fabbroni, professional engineer, dated September 1, 2023. He states that, “One possibility is that when Mr. Athwal lost consciousness, he fell in such a way that his feet contacted the switch of the kettle, causing water to boil, and subsequently spill on his lower legs.” There is no evidence to suggest that the kettle was in use at the time of the accident. Moreover, I have reviewed the transcripts from the depositions of Officers Dan Ulrich and Kevin Hamrick, who were the first responders at the scene. There testimonies do not support the respondent’s theory.

25The third theory advanced by the respondent is that a combustion from an improperly stored generator broke the chain of events. While there was a generator found in the truck, there is no evidence that it caused his injuries or ignited vapours.

26The applicant raised the issue of carbon monoxide in his submissions and states that it is considered a reasonably foreseeable risk of using an automobile and would not break the chain of causation. It should be noted that the respondent did not argue that this was an intervening act. In any event, the clinical notes and records from Sunnybrook Hospital indicate the applicant did not have signs of carbon monoxide poisoning.

27I am unable to find evidence of an intervening act that broke the chain of causation. Similar to Madore v. Intact, 2023 ONSC 11 (Div. Ct.) (“Madore”), while it is difficult to ascertain how the applicant lost consciousness, there is no evidence to suggest his injuries were caused by an intervening act. The causal link therefore was not broken. Therefore, I find that there was no intervening act.

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

28As described in Greenhalgh, the “dominant feature” consideration requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused the injuries.” For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her vehicle stuck on a country road. In dismissing the claim of an “accident” Justice Labrosse found, that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure with the elements, and that the use of the motor vehicle was ancillary to that injury.”

29The applicant submits that the dominant feature of his accident was the act of the applicant parking and sleeping in his vehicle. This arises out of the use and operation of a vehicle.

30The respondent submits that the act of the applicant parking and sleeping in his truck is not the dominant feature of his burn injuries. The chain of events that started from him using the vehicle was broken by the intervening causes of the stroke-like event and inadvertent contact with the portable electric kettle/boiling water or combustion from an improperly stored generator. The dominant feature of the subject incident had nothing to do with the ordinary use and operation of an automobile. The automobile was simply the location in which he suffered his burns. Any connection between the use or operation of a vehicle and the burns is too remote to be the dominant feature of his injuries.

31I find that the use or operation of the automobile was the dominant feature of the applicant’s injuries. The dominant feature that physically caused the applicant’s injuries was the Webasto heater.

32Both parties retained professional engineers to determine what could have caused the applicant’s injuries. Mr. Hawkens, who was retained by the applicant, conducted testing and found that the source of heat that caused the applicant’s burns was the hot air from the Webasto parking heater, which was in use throughout the time he was within the sleeper cabin. The hot air that was discharged from the air from the outlet vent was near or exceeded the boiling temperature of water and was sufficient to cause burn injuries. Mr. Hawkens placed items, such as cheese and a pork cutlet, on the floor of the outlet vent to explore the effect of being exposed to the hot air flow from the outlet vent. It was found that the heat discharged from the outlet vent was sufficient to melt a slice of cheese placed on the floor within five minutes. It was sufficient to partially cook and render fat and organic juices from a pork cutlet that was positioned about six to seven inches from the vent over a period of three hours of the heater operating.

33In his report dated September 1, 2023, the respondent’s expert, Mr. Fabbroni, presented three scenarios. The first scenario is that the applicant lost consciousness and fell in such a way that his feet contacted the switch of the kettle which caused the water to boil and spill on his lower legs. The second scenario is that the burns were caused over approximately 17 hours by outlet air from the parking heater blowing over Mr. Athwal’s legs. He noted that the burns were worse on the left leg and that would have been the leg closest to the parking heater vent if he was found face down. The third scenario is that both things occurred. However, he asserts it is more likely that the kettle caused the injuries.

34In my view, both experts agree that it is possible that the burns were caused by the parking heater blowing on the applicant’s legs. I find that Mr. Hawken’s testing of the scenario was more thorough compared to Mr. Fabbroni. I am persuaded that the heater caused the applicant’s injuries. I am not persuaded that the kettle caused his injuries because there is no evidence that it was in use at the time of the incident. Moreover, the respondent’s position is speculative. As such, the dominant feature of the applicant’s injuries was the heater, which is part of the ordinary use and operation of a vehicle.

35Accordingly, I conclude the use or operation of an automobile directly caused the applicant’s injuries. Thus, this incident meets the definition of an “accident” as per section 3(1) of the Schedule.

ORDER

36The applicant has demonstrated the incident on February 15, 2020 constitutes as an “accident”, as defined in section 3(1) of the Schedule.

37The matter will proceed to the substantive issues hearing scheduled for June 10, 2024.

38Except for the provisions contained is this order, all previous orders made by the Tribunal remain in full force and effect.