Licence Appeal Tribunal File Number: 22-004579/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:
Halimah Ntege-Lule
Applicant
and
Pafco Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Taran Hoogsteen, Counsel
For the Respondent:
Joel Chrolavicius, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Halimah Ntege-Lule, the applicant, was involved in an incident on January 20, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent, Pafco Insurance Company, 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 not involved in an accident as defined in s. 3(1) of the Schedule.
procedural issue – page limit of the respondent’s submissions
4The applicant submits that the respondent exceeded the page limit as stipulated in the Case Conference Report and Order (“CCRO”) dated January 30, 2023, where the Tribunal set a page limit of 15 pages for the respondent’s submissions. She requests that I not consider the last five pages of the respondent’s submissions.
5While I agree with the applicant that the respondent has exceeded the page limit set out in the CCRO, the applicant has not provided any submissions as to the prejudice suffered as a result of the breach. In addition, I note that the CCRO contains the standard clause that submissions that exceed the page may not be considered. As a result of the permissive word “may”, I am not bound by the page limits as set forth in the CCRO. I further note that, in “accident” cases, the respondent is often afforded the opportunity to submit a sur-reply, which was not ordered in this case.
6When weighing procedural fairness and potential prejudice, I find that the scales tip in favour of the respondent. The respondent would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded, as striking the last five pages would prevent the respondent from addressing some of its Law and Analysis. As such, I will consider all of the respondent’s written submissions in rendering this decision.
BACKGROUND AND PARTIES’ POSITIONS
7The applicant was involved in an incident on January 20, 2019. While the parties are not in agreement as to all of the facts of the case, they do agree that the applicant was travelling as a passenger in a motor vehicle, when the driver assaulted her by striking her left arm and later, her face. The applicant demanded that the driver stop the car, so that she could exit. The parties do not agree as to whether the car came to a complete stop or whether it was still moving, but they do agree that the driver then forcibly pushed the applicant out of the vehicle.
8The applicant submits that she then fell onto the roadway and began to roll down the road due to the momentum of the vehicle, and that a vehicle travelling behind had to swerve to avoid hitting her. She argues that she sustained physical injuries directly as a result of being pushed out of the vehicle, including injuries to her ribs, right ankle, right thigh, bruising down the right side of her body. The applicant also submits that she has been diagnosed with borderline personality disorder, post-traumatic stress disorder and manic depressive disorder, as a result of being pushed from a moving vehicle and nearly being run over. The applicant relies in large part on her testimony at her Examination Under Oath (“EUO”) on November 25, 2021, to establish her claim.
9The respondent disputes that the applicant’s impairments were caused by a motor vehicle accident, or as a result of being pushed out of the vehicle. Rather, it argues that they were caused by the multiple assaults committed by the driver. It points to the assaults committed prior to the applicant being pushed out of the vehicle. It also relies on the Police Occurrence Report dated January 29, 2019 (“police report”), which reported that the applicant returned to the vehicle after she was pushed out. Once in the car again, the driver hit the applicant’s face, at which point she jumped out of the car to get away. The report stated that the applicant again returned to the car at which point the driver drove her to her residence and assaulted her again by pushing her into her coffee table.
10The respondent argues that it was the multiple assaults which caused the applicant’s injuries, particularly the assault at her residence where the driver pushed her into her coffee table. It submits that where the applicant’s evidence at her EUO conflicts with her evidence in the police report, the evidence in the report should be preferred, as it was made only nine days after the incident, while the EUO was almost three years post-incident.
ANALYSIS
Law
11Section 3(1) of the Schedule defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment.”
12The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries, despite this preliminary issue being raised by the respondent.
Was the incident an “accident”?
13I find that the applicant has failed to establish that she was involved in an accident as defined in s. 3(1) of the Schedule.
14The 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?
15The 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?
16The 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”.
Purpose Test
17In its submissions, the respondent concedes that the applicant has met the purpose test. It agrees that the insured vehicle was being used to transport people from one location to another, which is a regular use or operation to which automobiles are put. I agree with the parties that the purpose test has been satisfied.
Causation Test
Would the alleged injuries have occurred “but for” the use or operation of the automobile?
18The applicant submits that she would not have sustained her injuries “but for” the fact that she was a passenger in the vehicle. She argues that she sustained her physical injuries when she was pushed from the moving vehicle, and psychological trauma from almost being run over. The respondent submits that given that the applicant’s injuries were caused by the various assaults, it cannot be said that “but for” being a passenger, the applicant would not have sustained her impairments.
19I agree that the applicant might not have sustained her injuries “but for” her being a passenger in the vehicle. As noted by Laskin J.A. in Chisholm v. Liberty Mutual Group, 2002 CanLII 4502 (ONCA), the purpose of the “but for” test is exclusionary, so it 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.” As such, this test is a low threshold that acts to filter out cases that cannot succeed. Given the low threshold, I am prepared to proceed on the basis that the “but for” test is met. However, legal entitlement, according to Chisholm, also “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?
20I find that the applicant has failed to establish that the use or operation of the vehicle was the direct cause of her injuries. Rather, I find that the injuries were caused by an intervening act, namely, the various assaults perpetrated by the driver.
21In her submissions, the applicant concedes that it “may well be the case” that an assault is not part of the ordinary use and operation of an automobile. I agree with the respondent that it has been consistently held by the Tribunal that incidents of assault sever the chain of causation, see Demers and Intact Ins. Co., 2021 CanLII 114037 (ON LAT), B.H. v. Primmum, 2019 CanLII 222-5 (ON LAT), Sorouri v Intact Insurance Company, 2022 CanLII 92722 (ON LAT).
22However, the applicant argues that the assaults were not the only cause, rather, the fact that the vehicle was moving when she was pushed out, was also a direct cause of her injuries. The applicant argues that her ejection from the moving vehicle was an act subsequent to the assault, that “brought the use and operation of the vehicle back into play”, relying on Salamone v. Aviva Canada Inc., 2016 ONFSCDRS 173, at para 25.
23I am not persuaded by the applicant’s argument. The applicant submits that her impairments were not sustained during the various assaults, but rather, when she was forcibly ejected from the moving vehicle. However, I find that the applicant has not led sufficient evidence to establish this claim. I agree with the respondent that the applicant’s testimony at the EUO conflicts in part with the information contained in the police report.
24The applicant points to her EUO in support of her claim that she was pushed out of the car while it was still moving, leading her to hit the roadway and start to roll. She argues that this caused injuries to her ankle, thigh, ribs and bruises down the right side of her body. She further testified in her EUO that once she was pushed out of the vehicle, she had to crawl on all fours as a result of her ankle injury.
25However, in the police report, the applicant reported that the driver had stopped the car before he pushed her out. She did not report any injuries to the police as a result of being ejected from the car, and reported that she then “ran across the parking lot”. Rather, the applicant stated in the police report that she sustained bruising to the right side of her body, her ribs and her leg as a result of being pushed into the coffee table in her apartment. Where the information in the applicant’s EUO conflicts with that in the police report, I prefer the evidence in the police report, as this report was provided only nine days after the accident, while the EUO was conducted almost three years post-accident.
26The applicant has not submitted any additional evidence outside of the EUO and the police report, to establish that she sustained impairments directly as a result of being pushed out of a moving vehicle, rather than the various assaults. Although she argues that she was diagnosed with borderline personality disorder, post-traumatic stress disorder and manic depressive disorder as a result of being pushed out of a moving vehicle, no medical evidence was provided in support of this claim. The evidentiary onus rests with the applicant to establish that the use or operation of an automobile directly caused her injuries. I find that she has not led sufficient evidence in this regard.
Was the use or operation of the vehicle the dominant feature of the incident and the resulting injuries?
27I find that the applicant has not led sufficient evidence to establish that the dominant feature that caused her injuries was the ordinary course of use or operation of the vehicle.
28The applicant submits that her role as a passenger and ejection from a moving vehicle, was the dominant feature and direct cause of her physical injuries to her ribs, right ankle, right thigh and her psychological impairments. She argues that the listed physical injuries are clearly distinct from the injuries to her left arm and face, that she sustained during the various assaults. However, as previously noted, the applicant has not led sufficient evidence to establish that these impairments were caused by her ejection from a moving vehicle. Rather, the police report noted that the vehicle was not moving at the time she was pushed, and that the reported physical injuries were sustained from the later assault in her apartment. No medical evidence was provided to support the applicant’s claim of psychological impairments stemming from the ejection from the car.
29As such, I agree with the respondent that the applicant has not led sufficient evidence to establish that her status as a passenger in the car was the dominant feature that caused her injuries, rather than the assaults.
CONCLUSION AND ORDER
30The applicant has not established that the incident that took place on January 20, 2019 was an “accident”, as defined in s. 3(1) of the Schedule.
31The application is dismissed.
Released: January 19, 2024
__________________________
Ulana Pahuta
Adjudicator