Guo v. Allstate Insurance Company of Canada, 2024 CanLII 28828

Citation: Guo v. Allstate Insurance Company of Canada, 2024 ONLAT 23-006252/AABS-PI

Licence Appeal Tribunal File Number: 23-006252AABS

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:

Xiu Xian Guo

Applicant

and

Allstate Insurance Company of Canada

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Moninder Khattra, Counsel

For the Respondent:

Oliver Gorman-Asal, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Xiu Xian Guo (“the applicant”) was involved in an incident on May 25, 2022 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 Allstate Insurance Company of Canada (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant was involved in an “accident” as defined in section 3(1) of the Schedule.

RESULT

3The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule.

ANALYSIS

Background

4On May 25, 2022, the applicant was the victim of a terrible attack. He was sitting in his vehicle, parked, at a shopping plaza when several individuals approached his vehicle with guns, pulled the applicant out of his vehicle, and assaulted him before stealing his vehicle.

5On July 26, 2022 the applicant submitted an application for accident benefits (OCF-1) to the respondent. According to the OCF-1, which appears to have been written by his then-counsel:

“a vehicle pulled up in front of our client’s vehicle, there were at least 3 people in that vehicle. Two men came from the vehicle, pulled out their guns and pointed at our client. They pulled our client out of his vehicle and kicked our client in the back and punched our client in the left rib. Then they took all the valuable belongings from our client and drove away with our client’s vehicle”.

6The police records from the incident were requested by the respondent and ordered to be produced, according to the Case Conference Report and Order, but have not been provided. A local news story dated May 27, 2022 appears to confirm that the applicant was assaulted and robbed while sitting in his parked car but offers little other detail.

7From the available information, it does not appear that his vehicle moved or struck anything as part of the incident, nor is there mention of any injuries caused by making contact with the vehicle as part of the incident.

8The applicant submits that he was involved in a motor vehicle accident as per the definition of an “accident’ in the Schedule. The applicant submits that he was sitting in the driver’s seat, intending to operate the vehicle. He submits that if not for the applicant’s intention to operate the vehicle, the incident and his resulting injuries would not have happened.

9The respondent submits that the applicant has failed to prove that the use and operation of an automobile directly caused his injuries as required by s. 3(1) of the Schedule.

Was the incident an “accident”?

10I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule, for the following reasons.

11Section 3(1) of the Schedule defines “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 his injuries. The parties agree on the legal test but disagree on whether the facts at hand meet that test.

13In 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:

1. The purpose test: Did the incident arise out of the use or operation of an automobile? and,

2. The causation test: Did the use or operation of an automobile directly cause the impairment?

14The 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?

15The 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:

1. The “but for” consideration;

2. The intervening act consideration, which may serve to break the chain of causation where some other intervening events cannot be said to be part of the ordinary course of use or operation of the vehicle; and,

3. 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

16The applicant did not make submissions on the purpose test. However, I find that the applicant has satisfied the first part of the test.

17The Court of Appeal in Caughy held that parking is an ordinary and well-known activity to which vehicles are put and that there is no “active use” requirement. In the present case, the applicant was parked in his vehicle, which he reportedly intended to operate.

The Causation Test: Would the injuries have occurred “but for” the use or operation of the automobile?

18Having considered the evidence before me, I find that the applicant would not have sustained these injuries “but for” his use of the vehicle. But for operating his vehicle and sitting in his vehicle at that location, he would not have sustained his injuries.

19However, the “but for” test does not conclusively establish legal causation, the cause that attracts legal liability. As noted by the Court of Appeal in Chisholm v. Liberty Mutual Group, 2002 CanLII 4520 (ON CA) (“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 […] but the but for test does not conclusively establish legal causation.”

20The analysis must next turn to a consideration of whether there was an intervening act that severs the chain of causation.

Was there an intervening cause?

21The applicant submits that there were no “intervening acts” that resulted in injuries that could not be said to be part of the “ordinary course of things”. He cites no caselaw in support of his position. He submits that being the operator of the vehicle directly led to his injuries.

22I agree with the respondent that the cause of the applicant’s injuries was the assault. The assault was an intervening act that broke the chain of causation. The respondent relies on Parviz v. Economical Insurance, 2023 CanLII 122910 (ON LAT) (“Parviz”); 18-992591 v. Intact, 2019 CanLII 43895 (ON LAT) (“H.A.”); Amrok v. Economical Insurance Company, 2021 CanLII 110996 (ON LAT) (“Amrok”); and Young v. Economical, 2023 CanLII 47535 (ON LAT) (“Young”) in support of its case.

23I am persuaded by the line of authorities raised by the respondent and find that the applicant’s injuries were not a consequence directly caused by the use or operation of the automobile. The applicant’s vehicle was the location of the assault but it was not the direct or indirect cause of his injuries. Even if the vehicle provided the opportunity, location, and motivation for an assault, it did not directly cause the impairment. In Parviz, the Tribunal held that an assault by an assailant constituted an intervening act. The Tribunal did not agree that an assault and carjacking was a foreseeable risk related to the operation of the automobile. See also Downer v. The Personal Insurance Co., 2012 ONCA 302, where the Court of Appeal found that the plaintiff’s injuries were not directly caused by the use or operation of his vehicle, but rather were caused by an intervening act in the form of an assault that cannot be said to be part of the ordinary course of things.

24In the subject case, the assault was an intervening event that caused the applicant’s injuries. Without the assault, the applicant would not have been injured. Accordingly, I find than the assault interrupted the chain of events from the applicant’s ordinary use of his vehicle. Being forcibly extracted from a vehicle is not in the ordinary course of things associated with the use or operation of the vehicle. The use or operation of the vehicle was ancillary to the assault.

25As a result, I find than the applicant has not satisfied the second part of the causation test.

Was the use or operation of the automobile a dominant feature of the applicant’s injuries?

26As described by the Court of Appeal 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”. Here, it is clear that the dominant feature was the physical attack by the assailants, which also resulted in his alleged psychological impairments.

27I am persuaded by the reasoning in the line of authorities relied upon by the respondent which held that the dominant features of the incidents were the assaults, which directly caused the applicants’ alleged injuries.

28The use or operation of vehicle was not the dominant feature of this incident, it was the assault. The applicant did not provide any medical evidence to show that the use or operation caused his injuries. There is no evidence that the use or operation of the applicant’s vehicle caused any injuries whatsoever. The evidence indicates that the applicant’s injuries were caused by assailants who held him up at gunpoint and assaulted him.

29I find that the use or operation of the vehicle did not directly cause the applicant’s injuries. This incident does not meet the definition of an “accident” pursuant to s. 3(1) of the Schedule.

ORDER

30I find that the May 25, 2022 incident does not meet the two-part test to determine whether the incident is an “accident”. Therefore, any impairments the applicant may have sustained as a result of the incident did not result from an “accident” as defined in s. 3(1) of the Schedule.

31As a result, the applicant is not entitled to accident benefits.

32The application is dismissed.