Srour v. Aviva Insurance Company of Canada, 2024 CanLII 13101

Citation: Srour v. Aviva Insurance Company of Canada 2024 ONLAT 23-007391/AABS-PI

Licence Appeal Tribunal File Number: 23-007391/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:

Sobhi Srour

Applicant

and

Aviva Insurance Company of Canada

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Steven Wilder, Counsel

For the Respondent: Joanne Witt, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sobhi Srour, the applicant, was involved in an incident on March 12, 2022 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by Aviva Insurance Company of Canada, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

i. Was the applicant involved in an “accident” pursuant to s. 3(1) of the Schedule?

RESULT

3The applicant was involved in an accident as defined in s. 3(1) of the Schedule.

BACKGROUND AND PARTIES’ POSITIONS

4The parties are not in agreement as to all of the factual circumstances of the incident on March 12, 2022. Both parties agree that the applicant was operating his vehicle as a taxi and was completing a fare with three passengers. After dropping them off, he turned his vehicle around in a driveway and proceeded back up the street. At that point, the applicant saw two unidentified pedestrians.

5The applicant submits that he “heard a noise” and stopped, but the respondent points to the applicant’s statement to the police that an object had struck his roof. However, both parties agree that the applicant then stopped his vehicle and rolled down his window to investigate and speak to the pedestrians approaching the taxi.

6The applicant submits that he then decided to roll up the driver’s door window, when “it unexpectedly broke, forcing glass into the Applicant’s face and eyes.” The respondent argues that the applicant is downplaying the incident, and that the event was clearly a violent assault on the applicant. According to the applicant’s statement to the police, he reported that the approaching male pedestrian appeared angry. The applicant attempted to close his window and drive off, when the assailant struck the driver’s side window, causing it to break and shattering the glass. The applicant started to drive the taxi forward but stopped almost immediately due to reduced vision from the shards of glass in his eyes.

7The applicant submits that the March 12, 2022 incident was an “accident” as defined in s. 3(1) of the Schedule. The respondent disagrees and argues that the jurisprudence is well-settled that an assault against a driver of a vehicle is not an “accident” for the purposes of accident benefit claims.

ANALYSIS

Law

8Section 3(1) of the Schedule defines an “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, despite this preliminary issue being raised by the respondent.

10The Ontario Court of Appeal confirmed in Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, a two-part test to determine whether an incident is an “accident” as follows:

i. Purpose test: did the incident arise out of the use or operation of an automobile? and

ii. 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 satisfying the following considerations in sequential order:

i. The “but for” consideration;

ii. 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,

iii. 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”.

Was the incident an “accident”?

13I find that the applicant has met his onus to prove that the March 12, 2022 incident was an “accident” as defined in s. 3(1).

Purpose Test

14The respondent submits that the applicant has not satisfied the purpose test, arguing that a violent assault against the driver of a vehicle is not an ordinary activity to which a vehicle is put. In contrast, the applicant cites Tribunal decisions in support of his position that using a vehicle to transport people and sitting in a vehicle waiting for passengers are ordinary and well-known activities of vehicles such as taxis, see: 18-002501 v. Intact Insurance Company, 2019 CanLII 43895 (ON LAT), and Ntege-Lule v Pafco Insurance Company, 2024 CanLII 2655 (ON LAT).

15I agree with the applicant that picking up and dropping off passengers is an ordinary and well-known activity of taxis. The applicant had just completed dropping off passengers and was still in the running vehicle, when the incident took place. As such, I find that the purpose test has been met.

Causation Test

Would the alleged injuries have occurred “but for” the use or operation of the automobile?

16I find that the applicant has met this branch of the causation test. “But for” the applicant being the driver of a taxi and pausing his car after dropping off his passengers, he would not have sustained his injuries from the assault. The applicant was sitting in the driver’s seat and rolling up the window when the driver’s side window was shattered into glass shards. As he was using his vehicle at the time of the incident, I am satisfied that he has met the “but for” test.

Was there an intervening cause?

17I do not find that there was an intervening act which broke the chain of causation.

18The respondent cites a number of Tribunal decisions, and the Ontario Court of Appeal decision Downer v. The Personal Insurance Company 2021 ONCA 302 (C.A.) in support of its position that an assault is an intervening act that cannot be said to be in the ordinary course of things. The respondent argues that both Downer and Parviz v. Economical Insurance, 2023 CanLII 122910 (ON LAT) have similar fact patterns to the present case. In both cases the claimants were assaulted while sitting in their vehicles. In Parviz the assailant first released a dog into the vehicle that bit the claimant, and then the assailant dragged the claimant out of the vehicle. In Downer the assailant came into the vehicle and hit the applicant on the head, while other assailants tried to pull him out of the car.

19The respondent argues that the jurisprudence is very clear that in such cases, the use or operation of the automobile is not the direct cause of the injuries, but rather, such assaults sever the chain of causation.

20The applicant relies on the Ontario Superior Court decision North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143, to argue that there can be a combination of concurrent events, including an assault, which cause the impairments. In this decision, the Superior Court upheld the Director’s Delegate’s finding that the assault was not an intervening act, but that the use or operation of the vehicle continued throughout. The applicant further argues that even if external factors contributed to the accident, his injuries were still caused by the motor vehicle itself, namely, the broken glass from the driver’s window. He relies on Tribunal decisions Montesano v. Western Assurance Co., 2021 CanLII 54817 (ON LAT), and L.L.B. v. Intact Insurance Company, 2020 CanLII 95904 (ON LAT) in support of his claim that physical contact with the vehicle that causes injuries supports the finding of an “accident”.

21I do not find that the striking and shattering of the driver’s window is an intervening act severing the chain of causation. Rather, I am persuaded by the cases cited by the applicant which discuss the distinction between an accident and assault and the role of the use of the vehicle in such cases.

22I find the reasoning in the Tribunal decision L.L.B. to be persuasive. In this decision, an incident was separated into an “accident” phase and an “assault” phase. It was found that where the vehicle itself was used as an instrument of the applicant’s injuries – by using the vehicle door to strike the applicant – this constituted an “accident”. This was distinguished from the second phase of the incident, where the assault continued outside of the vehicle and the claimant was punched in the face. The Tribunal found that to be an assault and not an accident.

23In L.L.B., the adjudicator canvassed other Tribunal and FSCO decisions which considered whether the vehicle itself was the “instrument of injury”. In Idin Golizadeh v. Motor Vehicle Accident Claims Fund, 2017 ONFSCDRS 118, it was held that the throwing of a rock and punching the claimant was an assault and not an accident. However, the claimant’s subsequent contact with the departing vehicle was found to be an “accident”. In all of these cases, assaults were involved, but the determinative factor was whether the vehicle itself was used in inflicting the injury.

24In my view, it is clear that the applicant’s injuries were caused directly by the motor vehicle. As per L.L.B., the vehicle was used as an instrument of the applicant’s injuries. Whereas in L.L.B. the assailant used the car door to strike the claimant, in the present matter the assailant shattered the driver’s door window thereby injuring the applicant. There is no dispute that that the only injuries the applicant sustained were from the shards of glass from the car window. According to the Windsor police file, the applicant confirmed that at no point did the assailant enter the vehicle, rather, it was found that the driver’s window was entirely smashed with significant amounts of glass located on both seats and floorboards.

25I find the cases relied upon by the respondent to be distinguishable. The respondent cites the Court of Appeal decision Downer and the Tribunal decision Parviz as having similar facts patterns. However, in both of these cases, the injuries were caused directly by the assailants striking the applicant, and no part of the vehicle was used to inflict the injury.

26Further, the respondent cites the Supreme Court of Canada decision Citadel General Assurance v. Vytlingam, 2007 SSC 46, arguing that in this decision the Supreme Court found that the direct cause of the injuries was a rock being thrown from an overpass, and that the tortfeasors’ car did not give rise to coverage under the policy. However, I note that in Vytlingam, the issue was whether the wrongdoers’ or tortfeasors’ car could trigger coverage under their policy in addition to the claimant’s car. The question was whether transporting rocks to conduct a criminal act fell within the ordinary scope of activities. The insurer was not disputing whether the driver of the vehicle that was hit by the rock, the innocent party, was covered under his own policy, with the Court stating:

In the present case, there is no doubt the Vytlingams were entitled to no-fault benefits since they were using their car for an “ordinary and well-known” motoring activity…the injuries they suffered were related to such “use and operation”. Accordingly, their insurers have paid no-fault statutory benefits.

27Although cited by the respondent, in my view Vytlingam supports the applicant’s position that there was no severance in causation. For the foregoing reasons, I find that the operation of the vehicle directly caused the applicant’s injuries and that the chain of causation was not broken.

Was the use or operation of the vehicle the dominant feature of the incident and the resulting injuries?

28I find that the respondent has failed to establish that the assault was the dominant feature of the incident.

29Pursuant to 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.” Further, in Samad the Divisional Court upheld the Director Delegate’s findings that a combination of factors caused the injury and that there was no evidence to suggest that there was one dominant factor. In that case, it was found that the combination of the operation of the vehicle, ice and assault caused the injury.

30In the matter at hand, although I agree with the respondent that the assault was a feature of the incident, I find that the operation of the vehicle and use of the vehicle as an instrument to cause the injury are the “dominant features” of the incident. Moreover, in this situation, the assault was directly linked to the operation of the vehicle, as the vehicle itself was used to inflict the injury.

31As such, I find that the use and operation of the vehicle is the dominant feature of the incident.

CONCLUSION AND ORDER

32The applicant has established that the incident that took place on March 12, 2022 was an “accident”, as defined in s. 3(1) of the Schedule.

33The matter will proceed to the substantive issues hearing.

34Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full force and effect.