21-010393-PI
Licence Appeal Tribunal File Number: 21-010393/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:
O'Niel Ghonis
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
O'Niel Ghonis, Applicant
Elvis Viskovic, Paralegal
For the Respondent:
Jonathan Heeney, Counsel
Ledya Abdalla, Counsel
Heard by way of written submissions
OVERVIEW
1O’Niel Ghonis, the applicant, was involved in an incident on January 30, 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, Wawanesa Insurance (“Wawanesa”), 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 January 30, 2020, the applicant was driving westbound on Brimorton Road. There was a Canada Post van parked by the curb. The rear doors to the van were open and swinging back and forth. The vehicles traveling eastbound on Brimorton Drive prevented the applicant from passing, so the applicant waited. Once the traffic cleared, the applicant pulled alongside the van, lowered his window and told the Canada Post worker “you got to be safe man. Like, the road is too small.” The Canada Post worker became irate at the applicant’s comments. He verbally assaulted the applicant and kicked his automobile a couple of times. The applicant was not physically harmed and nor did his automobile come into contact with the Canada Post worker’s vehicle.
5The applicant submitted an Application for Accident Benefits (“OCF-1”) on April 3, 2020. The applicant is alleging that he sustained psychological injuries as a result of the incident. The respondent denied his application on November 12, 2020.
6The respondent submits that the incident does not constitute as an “accident” pursuant to section 3(1) of the Schedule. The respondent argues that the case law has consistently found that instances of assault do not meet the definition of an accident unless the operation of the vehicle was actually a cause of the claimant’s injuries. Even where the purpose test has been satisfied, the incident fails the causation test due to the intervening act.
7The respondent is relying on Kipfer v. Belair, 2021 CanLII 11135 (ON LAT)(“Kipfer”), Fariad v. Intact Insurance Company, 2021 ONSC 6965 (“Fariad”), Liu v. Lombard, FSCO Appeal P02-00030 (Director’s Delegate Draper, January 8, 2004)(“Liu”), D.M. v. Certas Direct Insurance Company, 2018 ONLAT 17-000180/AABS(“D.M.”), R.M. v. Certas Direct Insurance Company, 2019 ONLAT 18-000468/AABS (“R.M.”), Martin v. 2064324 Ontario Inc, 2013 ONCA 19 (“Martin”), Brar v. ING, (2008 CanLII 40144)(“Brar”), and B.H. v. Primmum, 2019 CanLII 222-5 (ON LAT)(“B.H.”) in support of its case.
8The applicant submits that the incident constitutes as an “accident” pursuant to section 3(1) of the Schedule. It is the applicant’s position that but for the accident, he would not have sustained psychological injuries. The applicant is relying on 16-000131 v TD Insurance Meloche Monnex, 2017 CanLII 43837 (ON LAT) in support of his case.
Was the incident an “accident”?
9For the following reasons, I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.
10Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
11The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused his injuries.
12In 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” under the Schedule 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?
13The 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?
14The 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 satisfying the following considerations in sequential order:
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. 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
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 are put. At the time of the incident, the applicant driving his automobile. However, I do not find that the applicant meets the causation test.
The Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
16I find that the applicant meets this part of the causation test. He would not have been verbally assaulted by the Canada Post worker if he were not driving by in his automobile. However, the “but for” test does not conclusively establish legal causation. As Laskin J.A. noted in Chisolm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA) (“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 cause?
17I find that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile. Rather, his injuries were caused by an intervening act, which was the verbal assault by the Canada Post worker.
18The jurisprudence from the Tribunal 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. I find the use or operation of the automobile was not the direct cause of the applicant’s injuries, but rather, the verbal assault by the Canada Post worker.
19Although the automobile was the location of the verbal assault, it did not cause the impairments. The use or operation of the vehicle was ancillary to the assault. Accordingly, it cannot be said that the verbal 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”.
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 but instead that the dominant feature of the applicant’s injuries was the verbal assault.
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 person’s injuries could be best characterized as exposure to 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 verbal assault, which caused the applicant’s psychological impairments.
22While not binding on me, I am persuaded by similar reasoning from several Tribunal decisions such as Kipfer and Fariad. In my view, the dominant feature of the incident in this case was the verbal assault, which is what directly caused the applicant’s alleged injuries. I am not persuaded by 16-000131/AABS because in that case, there was no assault. Rather, the applicant tripped and fell into a parked vehicle.
23I find that the January 30, 2020 incident does not meet the causation test. Therefore, any impairments the applicant may have sustained as a result of the January 30, 2020 incident, did not result from an “accident” as defined by section 3(1) of the Schedule. As a result, the applicant is not entitled to benefits.
ORDER
24The applicant was not involved in an accident as defined by s. 3(1) of the Schedule.
25For the reasons above, the application is dismissed.
Released: May 24, 2023
Tavlin Kaur
Adjudicator