Licence Appeal Tribunal File Number: 21-003797/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:
Zihua Jiang
Applicant
and
The Co-operators General Insurance Company
Respondent
AMENDED PRELIMINARY ISSUE DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Zihua Jiang, Applicant
Zoe Meditskos, Paralegal
Aline Avanessy, Counsel
For the Respondent:
Serena Gohal, Counsel
Jamie Pollack, 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 June 9, 2019. The respondent raised a preliminary issue, which is the basis for this decision.
ISSUE IN DISPUTE
2Preliminary Issue: The preliminary issue to be decided is:
- Was the applicant involved in an “accident”?
FACTS
3On June 9, 2019, the applicant was driving her car northbound on Kennedy Road. Her husband was a passenger in the car. An argument ensued between the couple. It is alleged that the applicant’s husband pulled her hair and smashed her head into the driver’s side window while she was driving. The applicant lost control of her vehicle and steered to the right. She hit a curb on the side of Kennedy Road. It is alleged that the applicant struck her head against the roof of the vehicle approximately two times and then landed in a patch of grass.
PARTIES’ POSITIONS
4The applicant submits that she was involved in an accident pursuant to the Schedule. As a direct result of the accident, the applicant sustained significant injuries including a traumatic brain injury with progression to post-concussion syndrome, headaches, blurry vision, dizziness, loss of balance, and hearing impairments. It is her position that if she was not operating her vehicle, she would not have hit her head against the vehicle multiple times.
5The 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 assault does not arise out of the ordinary activities to which vehicles are put. Moreover, her injuries would not have occurred but for the assault. The assault was the intervening and sole/dominant feature of the injury.
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 her 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 established a two-part test to determine whether an incident is an “accident” [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] 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 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.
Did the applicant’s injuries arise out of the use or operation of an automobile (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 when the incident took place.
15However, I do not find that the applicant meets the second stage of the Greenhalgh framework.
The Causation Test
16Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal [Chisholm and Greenhalgh]:
i. whether the incident would have occurred “but for” the use or operation of the automobile;
ii. whether there was an intervening act that cannot be said to be part of the ordinary course of the use or operation of the automobile; and
iii. whether the use or operation of the automobile was the dominant feature.
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
17It is the applicant’s position that her injuries were caused by, first, the automobile being used as an instrument of injury (head struck the window when she tried to escape her assailant’s grip) and second, the loss of control of the automobile resulting in injury (head struck the roof again as she lost control of the vehicle and hit a curb).
18The respondent submits that the applicant has advised that domestic violence had been an unfortunate reality of her entire marriage. Therefore, it cannot be said that but for driving, the applicant would not have been assaulted.
19Based on the facts and evidence before me, I agree that she might have not sustained these injuries “but for” her driving the automobile. 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?
20The applicant acknowledged that an assault committed on or by a driver or occupant of an automobile is generally not an “accident” as defined in the Schedule unless the automobile was the instrument of the injury or the assault caused an automobile to lose control resulting in injury to the victim (e.g., violent swerving, a crash or collision).
21She requested that the Tribunal adopt the reasoning in 17-002922 v Certas Home and Auto Insurance Company, 2018 CanLII 140343 (ON LAT) and 17-003125 v. Intact Insurance Company, 2019 CanLII 18331 (ON LAT) and deem the incident in question not an intervening act because the vehicle was used as an instrument of injury which caused the vehicle to lose control resulting in further injury. The applicant is of the view that there is a plethora of medical evidence attributing the applicant’s injuries to the accident.
22It is the respondent’s position that even though the assault occurred within a vehicle, the use or operation did not directly cause the applicant’s injuries. It is submitted that there is compelling evidence supporting that there was an intervening act that broke the chain of causation. The respondent is relying on Chisholm and Kumar and Coachman Insurance Company, Appeal P01-00026, August 9, 2002, in support of its case.
23I am not persuaded by the case law presented by the applicant and am not bound by it. The jurisprudence regarding assaults has been very clear that these are not considered to be accidents. Moreover, I find Chisholm and Kumar to be persuasive. The use or operation of the automobile was not the direct cause of her injuries. The assault was the intervening act and 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 automobile was the situs of the assault, it did not cause the impairment. The use or operation of the vehicle was ancillary to the assault.
24I 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 the later intervening act, which was the assault by her husband. The assault initiated the chain of events that led to her injuries, not the use or operation of the automobile. The assault was the independent intervening event which broke the chain of events which started with the applicant driving up on Kennedy Road and ended with her suffering the alleged injuries when she hit the curb.
Was the use or operation of the automobile a dominant feature of the applicant’s injuries?
25The applicant did not provide submissions on the dominant feature of her injuries.
26The respondent submits that the applicant has not demonstrated that her vehicle was the “dominant feature” that caused her injuries. The respondent is relying on L.L.B. v. Intact Insurance Company, 2020 CanLII 95904 (ON LAT)(“L.L.B.”) in support of its case.
27As 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.”
28I am persuaded by the reasoning in L.L.B. where the Tribunal found that punches from the assailant were the aspect of the situation that most directly caused the applicant’s injuries and were therefore clearly the dominant feature in respect of the causation analysis. I find that the use or operation of the automobile was not the dominant feature of her alleged injuries. Rather the dominant feature of her alleged injuries were the assaults, and the use or operation of the vehicle was ancillary to the assault.
Evidence surrounding the applicant’s credibility
29The 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 June 9, 2019 did not meet the causation test, I find it unnecessary to address the issues around her credibility in relation to the injury.
CONCLUSION AND ORDER
30The circumstances surrounding the incident are quite unfortunate. I am fully cognizant of the impact that this has on the applicant’s claim for accident benefits and do not make this decision lightly.
31I find that the June 9, 2019 incident did not meet the causation test. Therefore, any impairments the applicant may have sustained as a result of the June 9, 2019 incident did not result from an “accident” as defined in section 3(1) of the Schedule. As a result, the applicant is not entitled to accident benefits.
32The application is dismissed.
Released: February 5, 2023
Tavlin Kaur
Adjudicator