Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-009610/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:
Josef Pec
Applicant
and
Certas Direct Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Josef Pec, Applicant
Jeton Memeti, Paralegal
For the Respondent:
Sanket Ullal, Counsel
Lucie Pivrnec, Counsel
HEARD:
By way of written submissions
BACKGROUND
1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on August 12, 2020.
ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the circumstances giving rise to the dispute meet the definition of “accident” in the Schedule.
FACTS
3On August 20, 2020, the applicant was driving his motorcycle on Cawthra Road, turning onto Bloor Street. A driver in another vehicle got out and started yelling at him because he allegedly cut him off when turning onto Bloor Street. Both parties yelled at one another. It is alleged that the other driver took out a gun from the back seat of his car. The driver left the scene. The applicant followed him to the intersection of Bloor Street and Dixie Road. The driver got out of his vehicle and the parties got into a physical altercation. The police determined that this was a consent fight as a result of road rage.
PARTIES’ POSITIONS
4The respondent submits that the incident does not constitute as an accident pursuant to section 3(1) of the Schedule. It is the respondent’s position that the incident in question is a fight between the applicant and another individual. The incident constitutes an “intervening act” that cannot reasonably be said to be part of the “ordinary course of things” associated with the use or operation of the applicant’s vehicle. The respondent submits that the assault and “consent fight” were the sole causes of the applicant’s injuries in the matter. Extending automobile insurance coverage in such situations is beyond the scope of such contracts and beyond the intention of the legislature.
5The applicant submits that he was engaged in the regular use and operation of an automobile and as a direct result, he sustained physical and psychological injuries and impairments. Moreover, he denies that he was in a consent fight. Therefore, he was involved in an accident on August 12, 2020.
RESULT
6The applicant was not involved in an accident as defined by section 3(1) of the Schedule.
LAW
7Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
8The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused the injuries.
ANALYSIS
Was the incident an “accident”?
9For the following reasons, I find that the applicant was not involved in an “accident” as defined within s. 3(1) of the Schedule.
10The Ontario Court of Appeal has established a two-part test to determine whether an incident is an “accident” as follows [Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) ; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 ]:
a. Stage I Purpose test: did the incident arise out of the use or operation of an automobile? and
b. Stage II Causation test: did the use or operation of an automobile directly cause the impairment?
11The first stage is a determination of whether the incident involves “the ordinary and well-known activities to which automobiles are put.” [Greenhalgh]. Said another way, for what “purpose” was the vehicle being used at the time of the incident?
12The second stage then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the impairments. Though there is no mechanistic means of conducting this stage of the analysis, the case law generally focuses on the following factors: the “but for” consideration; the “intervening act” consideration; and the “dominant feature” consideration. [Greenhalgh at paras 37-49]
- The “but for” consideration screens out trivial acts and events that could not be a possible cause of the impairments;
- The “intervening act” consideration asks the adjudicator to determine if some other event took place that can better explain the cause of the impairments; and,
- Finally, when faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity at issue is what “most directly caused the injury”.
13The application of this test to the facts of this case follows.
Stage I: The Purpose Test
14I must first determine whether the incident arose out of the use or operation of the vehicle. I 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 are put. The applicant was driving his motorcycle when the incident took place.
15However, I do not find that the applicant meets the second stage of the Greenhalgh framework.
Stage II: The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
16Based on the facts and evidence before me, I agree that the applicant might have not sustained these injuries “but for” him driving his motorcycle. However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As Laskin J.A. noted in 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.” 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.”
Was there an intervening cause?
17The respondent submits that the assault and consent fight were the sole intervening acts that resulted in the applicant’s injuries, which were not a normal risk associated with the use of a vehicle. The applicant failed to provide submissions that address whether or not there was an intervening act.
18I find that the applicant’s alleged injuries were not a consequence directly caused by the use or operation of the automobile. Rather, they were caused by an intervening act, which was the physical altercation with the other driver. The jurisprudence regarding assaults/physical altercations has been very clear that these are not considered to be automobile accidents. The use or operation of the automobile was not the direct cause of the applicant’s injuries. The physical altercation was not part of the “ordinary course of things” or a “normal incident of the risk created by the use or operation of the car”. Although the motorcycle was the situs of the physical altercation, it did not cause the impairment. The use or operation of the vehicle was ancillary to the physical altercation.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
19The applicant did not provide submissions regarding the dominant feature of his injuries.
20The respondent submits that the dominant feature in the current matter was solely an assault and injuries arising out of a “consent fight”, and not the use or operation of a vehicle. The nexus between the use and operation of his vehicle and the Applicant’s alleged injuries is too remote to be considered direct.
21As 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.”
22I find that the use or operation of the motorcycle was not the dominant feature of the applicant’s alleged injuries. I am persuaded by the reasoning in Alsaghir v. the Co-Operators General Insurance Co, 2022 ONLAT 20-010596/AABS and Sorouri v. Intact Insurance Company, 2022 CanLII 92722 (ON LAT). In my view, the dominant feature is the physical altercation that took place which is what directly caused the alleged injuries.
23Moreover, the applicant did not provide any evidence that shows that the use and operation of the motorcycle was the dominant feature of the incident. Nor did he provide any medical evidence that addresses his alleged injuries and what the cause of those injuries were.
CONCLUSION AND ORDER
24I find that the August 12, 2020 incident did not meet the two-part test to determine whether an incident is an “accident”. Therefore, any impairments the applicant may have sustained as a result of the August 12, 2020 incident did not result from an “accident” as defined in section 3(1) of the Schedule.
25As a result, the applicant is not entitled to accident benefits.
26The application is dismissed.
Released: February 17, 2023
___________________________
Tavlin Kaur
Adjudicator