Licence Appeal Tribunal File Number: 21-009559/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:
Hussain B. Al Khazreji
Applicant
and
RSA Insurance
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Hussain Al-Khazreji
M. Ahmad Khan, Counsel
For the Respondent:
Alon S. Barda, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Hussain Al Khazreji, the applicant, was involved in an automobile accident on November 16, 2019, 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, Royal & Sun Alliance Insurance Company of Canada (“RSA”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue to be decided is whether the circumstances giving rise to the dispute meet the definition of an “accident” in s. 3(1) of the Schedule.
RESULT
3The applicant was not involved in an accident as defined by s. 3(1) of the Schedule.
ANALYSIS
Background
4The applicant is a taxi driver. On November 17, 2019, the applicant was driving a passenger home. He stopped his car in front of the passenger’s home. The passenger exited the car and the applicant informed him that he did not pay the fare. The applicant turned to get his debit machine when the passenger assaulted him through the open window. The applicant sustained a concussion and injuries to his face as a result of the assault. The applicant submits that this constitutes an accident under the Schedule.
5The respondent submits that the incident does not constitute an accident pursuant to s. 3(1) of the Schedule because, the incident does not meet the purpose or causation test, and the Tribunal has consistently held that an assault breaks the chain of causation because it is not part of the ordinary course of operating a vehicle. The respondent submits that the claim should be dismissed.
Was the incident an “accident”?
6For the following reasons, I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.
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 his injuries.
9In 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?
10The 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?
11The 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:
The “but for” consideration can act as a useful screen to eliminate irrelevant causes;
The “intervening act” consideration 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,
Finally, 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
12I 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. As the applicant is a taxi driver, I find that stopping his vehicle to pick up and drop off the passenger was part of the ordinary use and operation of an automobile. Similarly, securing payment from a passenger while remaining in the vehicle at the end of a trip is an ordinary and well-known activity.
13However, I do not find that the applicant meets the second stage of the Greenhalgh framework.
The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
14I find that the applicant meets this ground under the causation test. He would not have been assaulted by the passenger if he had not picked him up as a taxi driver. 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 act?
15I find that the applicant’s 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 assault by the passenger.
16The respondent submits that situations where drivers have been assaulted by passengers in their taxi or other ride sharing situations, have routinely been found not to meet the causation test because, they are intervening acts that are not part of the ordinary and well-known use of vehicles. The applicant did not provide submissions on whether there was an intervening act.
17The jurisprudence regarding assaults has been very clear that an assault is not considered to be an automobile accident because it severs the chain of causation. Here, I find the use or operation of the automobile was not the direct cause of the applicant’s injuries, but rather, the assault by the passenger was. Accordingly, it cannot be said that the assault was 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 applicant’s automobile happened to be the location of the assault, it did not cause the impairment. The use or operation of the vehicle was ancillary to the assault.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
18In this vein, I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries.
19The respondent submits, and I agree, that the dominant feature in this case was the assault of the applicant by the passenger. The applicant did not provide submissions regarding the dominant feature of his injuries.
20As 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.” I find this rationale applicable here, where it is clear that the dominant feature of the incident was the assault to the applicant’s face by the passenger which resulted in a concussion.
21While not binding on me, I am persuaded by similar reasoning from several Tribunal matters with similar fact patterns, for example: I.W. v. Coachman Insurance Company, 2020 CanLII 27393 (ON LAT); Rochford v. Unifund Assurance Company, 2021 CanLII 18927 (ON LAT); Sajid v. Certas, 2022 ONSC 2071, Fariad v. Intact Insurance Company, 2021 ONSC 6965, and Sorouri v. Intact Insurance Company, 2022 CanLII 92722 (ON LAT). In my view, like these cases, the dominant feature of the incident here was the assault, which is what directly caused the applicant’s alleged injuries.
22Finally, the applicant did not provide any evidence that shows that the use or operation of the automobile was the dominant feature of the incident. Nor did the applicant provide any medical evidence that shows that the use or operation of the automobile caused his injuries. Based on the evidence that is before the Tribunal, I find the applicant’s injuries were caused by the assault, which was an intervening act that severed the chain of causation and became the dominant feature of the applicant’s impairments.
ORDER
23I find that the November 16, 2019 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 November 16, 2019 incident did not result from an “accident” as defined in section 3(1) of the Schedule.
24As a result, the applicant is not entitled to accident benefits.
25The application is dismissed.
Released: February 28, 2023
Tavlin Kaur
Adjudicator