Licence Appeal Tribunal File Number: 21-003160/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:
Hellen A. Taylor
Applicant
and
Unifund Assurance Company
Respondent
AMENDED PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Hellen Taylor, Applicant
Joe Gaynor, Counsel
For the Respondent:
Jennifer Sweitzer, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Hellen Taylor, the applicant, was involved in an automobile accident on April 20, 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, Unifund Assurance Company (“Unifund”), 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
4On April 20, 2020, the applicant was cleaning her automobile. All of the doors of the automobile were open, and she had her radio on at a medium to high level. Her neighbour approached her and told her to turn the volume down. There was a verbal altercation between the applicant and her neighbour. The applicant refused to turn the volume down. Her neighbour went into her automobile and turned it down. This resulted in a further altercation and resulted in the applicant turning the volume back up. The applicant then moved to the passenger seat of the automobile and continued to yell at her neighbour. The neighbour kicked the passenger door. The applicant used both of her feet to push back as her neighbour was kicking the door. The applicant’s neighbour slammed the door several times on the applicant, which resulted in injuries.
5It is the respondent’s position that the incident in question was an assault, and the applicant has not satisfied her burden of demonstrating that it meets the definition of an “accident”. Moreover, it asserts that the applicant is not credible, and her version of events is drastically different from the video footage she produced to the respondent.
6The applicant submits that the incident that took place on April 20, 2020 is an accident and that she should be entitled to statutory accident benefits. At the time of the accident, the applicant was cleaning her automobile. In the process of doing so, the vehicle door was closed on her several times by her neighbour. Both activities, the maintenance of a vehicle and the use of the vehicle door, are well-known and ordinary tasks for which automobiles are put. The applicant argues that the fact that the vehicle door was closed on the applicant does not permit the respondent to deny coverage under the Schedule. Further, the applicant submits that the use and operation of the vehicle door was not ancillary to the incident, rather, it was integral, because it was the instrument of injury to the applicant.
Was the incident an “accident”?
7For the following reasons, I find that the applicant was not involved in an “accident” as defined by s. 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:
The “but for” consideration;
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,
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
13I 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. At the time of the incident, the applicant was cleaning her automobile. I find that the maintenance of a vehicle, as well as the opening and closing of a car door, are well-known and ordinary tasks for which an automobile is put. However, I find that slamming a car door on a person is not part of the ordinary use or operation of an automobile, because it is an assault.
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 part of the causation test. She would not have been assaulted by her neighbour if she had not been cleaning her automobile and blaring her music on the radio. However, the “but for” test does not conclusively establish legal causation. As Laskin J.A. noted in Chisholm, the purpose of the “but for” test of the causation analysis 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, her injuries were caused by an intervening act, which was the assault by the neighbour.
16The respondent submits that the applicant’s injuries were caused by the intervening act of the neighbour intentionally kicking the door in order to assault the applicant, which is not part of the normal incident of risk created by the use or operation of the car.
17The applicant submits that there was no intervening or separate distinct act that caused or contributed to her injuries. The force of the door being closed on her several times was the direct cause. The causation branch of the test is satisfied. The law is clear that the use of a vehicle door is considered one of the many uses and operations of an automobile, and if it is the instrument of injury or directly causes an injury or impairment, then the incident qualifies as “accident” under the Schedule.
18The 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. I see no basis to depart from that reasoning here. 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 neighbour 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”. One cannot anticipate that cleaning a vehicle or having the car door open would result in an assault. Moreover, it cannot be said that a verbal altercation and physical assault regarding the volume on the car’s stereo system is part of the “ordinary course of things” involving an automobile. Unlike its ordinary use, the vehicle was being used mainly as a weapon to assault the applicant. In my view, this was outside of the vehicle’s ordinary use.
19The applicant relies on L.L.B. v Intact Insurance Company, 2020 CanLII 95904 (ON LAT) (“L.L.B.”) in support of her case because she is of the view that it is analogous to her situation. In L.L.B., the respondent conceded that the applicant’s contact with the door of the vehicle resulted in an accident. As this point was not debated or flushed out in L.L.B., it is of little persuasion to the facts before me.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
20In this vein, I find that the use or operation of the automobile was not the dominant feature of the applicant’s injuries.
21The respondent submits, and I agree, that the dominant feature in this case was the assault of the applicant by the neighbour. The applicant did not provide submissions regarding the dominant feature of her injuries.
22As 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 by the neighbour.
23I am persuaded by similar reasoning from several cases with similar fact patterns, for example: Brar v. ING Insurance Company of Canada, [2008] OFSCD No. 68 (finding that the truck created an atmosphere of hostility between the applicant and the attacker) and Martin v. 2064324 Ontario Inc (Freeze Night Club), 2013 ONCA 19 (finding that assaults constituted intervening acts that could not reasonably be said to be part of the "ordinary course of things" associated with the use or operation of a vehicle). Like these cases, the dominant feature of the incident here was the assault, which is what directly caused the applicant’s alleged injuries.
24In my view, the force that was used to slam the door on the applicant originated from the neighbour. The door cannot move itself. Simply put, if the applicant was inside of the automobile and the neighbour did not slam the car door, the applicant would not have been injured. Therefore, even though the car door may have played a role in causing the applicant’s injuries, I find that it was not the direct cause of those injuries.
25Finally, the evidence that the applicant submitted shows that the altercation is what caused her injuries. For example, the consultation report of Dr. Abdel-Rahman Lawendy, orthopaedic surgeon, dated September 4, 2020, the clinical notes and records (“CNRs”) from Dr. Victoria Soo, general physician, and the note from South London Urgent Care, dated May 14, 2020, all note that the applicant was in an altercation with her neighbour and that the neighbour had tried to shut the car door on her a number of times. In my view, the medical evidence does not support the fact that the use or operation of the automobile caused her injuries. Rather, it was the assault through the use of the car door.
26Based 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.
Evidence surrounding the applicant’s credibility
27The respondent submits that the applicant is not credible and therefore the Tribunal should not rely on her evidence. As I have determined that the incident on April 20, 2020 did not meet the causation test, I find it unnecessary to address the issues around her credibility in relation to the injuries.
COSTS
28The applicant is seeking costs in the amount of $2,500.00 to compensate for legal fees in preparation of this hearing. The respondent submits that the applicant has not pointed to any conduct of the respondent which is unreasonable, frivolous, vexatious, or in bad faith.
29In the absence of reasons and particulars, I am unable to award costs to the applicant. In any event, I find the actions of the respondent are not sufficient to award costs. The test to find bad faith and unreasonable, frivolous, vexatious behaviour is very high. The respondent’s behaviour has not met this threshold.
ORDER
30I find that the April 20, 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 April 20, 2020 incident did not result from an “accident” as defined in section 3(1) of the Schedule.
31As a result, the applicant is not entitled to accident benefits.
32The application is dismissed.
Released: April 12, 2023
Tavlin Kaur
Adjudicator