Citation: Han v. Co-operators General Insurance, 2024 ONLAT 23-013882/AABS-PI

Licence Appeal Tribunal File Number: 23-013882/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:

Xiaobo Han

Applicant

and

Co-operators General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Emily A. Schatzker, Counsel

Heard: By Way of Written Submissions

OVERVIEW

1Xiaobo Han (the “applicant”) was involved in an incident on April 5, 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 Co-operators General Insurance Company (“Co-operators”) 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 and Parties’ positions

4On April 5, 2022, the applicant was a victim of a horrible attack.

5The respondent argues that there is conflicting information of how the attack transpired, and therefore the police report and Scarborough Health Network Records (“hospital records”) should be given more weight, as they are most contemporaneous to the assault.

6However, upon review of all the evidence (the various OCF-1s, the Treatment Plan (“OCF-18”), dated March 11, 2014, the police report, and the hospital records), I find a similar fact pattern of how the incident arose. The consensus is that the applicant was pulled out of a vehicle by a group of assailants and assaulted. The assailants then stole his car.

7The disagreement between the parties arises from whether the applicant had any contact with the vehicle when this incident took place (i.e., when he was pulled/dragged out of the car) or whether the window shattered), which resulted in an impairment, and whether it meets the definition of an “accident” under s. 3(1) of the Schedule.

8The applicant argues that he was sitting in a running vehicle when the incident occurred, which resulted in him being dragged/pulled out of the car. He argues that both the purpose and causation test are met. To support this position, he relies upon the authorities of Srour v. Aviva Insurance Company of Canada, 2024 CanLII 13101 (ON LAT) (“Srour”), and North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (“North Waterloo”), where he argues that it was found that the assault was not an intervening act.

9In response, Co-operators submits that the April 5, 2022, incident does not constitute an “accident” as defined by s. 3(1) of the Schedule. It argues that assault cases do not meet the definition of an “accident” unless the operation of the vehicle caused the applicant’s injuries, which has not happened here. Co-operators submits that the vehicle did not move or strike anything as part of the accident, nor were the applicant’s injuries caused by making contact with the vehicle as part of the incident. Rather, the applicant sustained a small amount of subconjunctival hemorrhage to the right eye, a head injury, and multiple abrasions to his scalp as a result of the assault.

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.

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 (“Caughy”), the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:

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

ii. 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 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 has been met

16It is unclear from the respondent’s submissions whether it is disputing that the purpose test is met here. Co-operators argues that the Financial Services Commission of Ontario (“FSCO”) case of Kohli v. State Farm, FSCO Appeal P99-00035 (Director's Delegate Draper, March 28, 2000) is analogous to the present case. In Kholi, it was found that assaulting someone to steal their keys would not satisfy the purpose test. However, the respondent also referred to Caughy, where it was held that parking is an ordinary and well-known activity to which vehicles are put and that there is no “active use” requirement.

17In any event, I find that the applicant has satisfied the first part of the test. The applicant was inside his vehicle, which he intended to operate, when the incident transpired. As held in Caughy, there is no “active use” requirement to be met in order to satisfy the purpose test. As such, I now turn to the causation test.

The causation test has not been met

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

18I find that the applicant has met the first branch of the causation test.

19The applicant submits that he would not have sustained his injuries if he was not in the vehicle, therefore the “but for” test is met.

20Co-operators is not disputing that the “but for” test is met, and instead argues that there was an intervening act, the assault, which is not a normal incident of the risk created by the use or operation of a vehicle.

21Having 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.

22However, 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.”

23The 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?

24I find that the applicant has failed to establish that the use or operation of the vehicle was the direct cause of his injuries. Rather, I find that the injuries were caused by an intervening act, namely, the assault.

25The applicant argues that there were no intervening acts, as carjackings are a common event, and therefore an “ordinary course of things”. Further, the applicant argues that even if external factors contributed to the accident, his injuries were still caused by the vehicle, namely, the broken glass from the driver’s window. Finally, he submits that since he was physically dragged/pulled out of the vehicle, this means he made physical contact with the vehicle, which resulted in injuries, and therefore this supports a finding that this was an accident.

26Co-operators argues that the assault on the applicant after he was pulled out of the vehicle cannot be considered a normal incident of the risk created by the use or operation of the vehicle. The assault was an intervening act that caused the applicant’s injuries, and therefore this branch of the causation test is not met. Moreover, it submits that the applicant’s injuries were not caused by making contact with the vehicle, nor was the vehicle used as an instrument to inflict injury on the applicant. Lastly, it argues that there is no evidence that the applicant made contact with the vehicle or sustained injuries when he was dragged from the vehicle.

27I acknowledge that both parties made extensive submissions on whether the applicant made contact with the vehicle during the altercation. However, in a Divisional Court case of Madore v. Intact Insurance Company, 2023 ONSC 11 (“Madore”) the Court determined that a slip and fall off the top of a camper trailer was an “accident” within the meaning of the Schedule.

28Although neither party made submissions on Madore it is binding on me and the principles articulated are directly relevant to the arguments raised by the parties. Madore outlines and clarifies the “correct approach” to the causation test under the Schedule at para. 37. The court emphasized that it is the use and operation of the vehicle that is the relevant cause, not the vehicle itself.

29The applicant also relies on L.L.B. v. Intact Insurance Company, 2020 CanLII 95904 (ON LAT) (“L.L.B.”) in support of his case because he is of the view that it is analogous to his situation. In particular, he argues that in L.L.B, it was held that physical contact with the vehicle that causes injuries supports the finding that it is an accident. However, in L.L.B., the respondent conceded that the applicant’s contact with the door of the vehicle resulted in an accident. As this point was not debated or flushed out in L.L.B., it is of little persuasion to the facts before me. In any event, I find that being forcibly extracted from a vehicle is not in the ordinary course of things associated with the use or operation of the vehicle. The forcible act of removing the applicant from the vehicle is a form of assault and the use or operation of the vehicle was ancillary to the assault.

30The case law concerning assaults and accidents is well-settled—that is, unless the use or operation of a vehicle is directly associated with a specific impairment, assaults are not considered “accidents” under the Schedule. I agree with Co-operators that the cause of the applicant’s injuries was the assault and that the applicant’s vehicle was the location of the assault but it was not the direct or indirect cause of his injuries.

31Even if the vehicle provided the opportunity, location, and motivation for an assault, it did not directly cause the impairments. 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”); Guo v. Allstate Insurance Company of Canada, 2024 CanLII 28828 (ON LAT); Al Khazreji v. RSA Insurance, 2023 CanLII 15064 (ON LAT), Downer v. The Personal Insurance Company, (“Downer”) 2012 ONCA 302, Chisholm; and Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19 (“Martin”).

32I am persuaded by Co-operator’s submissions on case law and follow the line of Court of Appeal cases it relied on, namely Chisholm, Martin, and Downer. In Chisholm, the plaintiff was rendered a paraplegic when an unknown assailant fired gunshots at his car. His claim against his insurer under the Schedule was denied on the basis that his injuries were not caused by an "accident.” At paras. 29 and 34, the Court emphasized that, even if the use of an automobile may be said to be a cause of an insured's injuries, a later intervening event can break the chain of direct causation. I find this reasoning applicable here. First, it is clear that there was an intervening event—the assault that occurred outside of the vehicle—that broke the chain of causation. Second, as in Chisholm, it cannot be said that the use or operation was the cause of the applicant’s injuries.

33Similarly, in Downer, the plaintiff was assaulted by several unknown assailants while he was sitting in his car at a gas station. In the ensuing struggle, the plaintiff managed to escape by putting his vehicle in gear and driving away. He believed that he may have run over one of his assailants. He claimed psychological and physical injuries as a result of the incident and sought to recover from his insurer under the Schedule. The Court of Appeal found 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 have been part of the "ordinary course of things." The Tribunal has consistently followed the line of reasoning that incidents involving assaults are not accidents. I see no basis to depart from that reasoning here

34Again, In Martin, the plaintiff was loading his car in a parking lot after leaving work at a night club. He was assaulted by two unknown assailants in a parking lot, driven a few blocks away in his own vehicle, further assaulted and ultimately abandoned by his attackers. The Court of Appeal found that all of the senseless acts of violence against the plaintiff, except for an injury to his foot that occurred when the assailants drove away, had nothing to do with the use or operation of his vehicle. The Court held that the assaults constituted intervening acts that could not reasonably be said to be part of the "ordinary course of things" associated with the use or operation of a vehicle or a direct cause of the injuries suffered by the plaintiff, while also finding that there was a genuine issue for trial relating to the foot injury caused by the moving vehicle. I find this reasoning applicable here and see no basis to depart from it.

35Unlike, Martin and Downer, there is no evidence that the applicant sustained impairments from the use or operation of the vehicle. Indeed, in both the police report and the hospital records, which is the evidence most contemporaneous to the assault, the applicant sustained numerous physical injuries from the assault. There is no indication that the applicant sustained any impairments from the use or operation of the vehicle. Likewise, there is no indication that the applicant sustained psychological impairments from the use or operation of the vehicle. Instead, the applicant self-reporting in the OCF-18, dated March 11, 2014 supports that any alleged psychological impairments arose from the assault.

36I also find that the factual matrix in the authorities cited by the applicant are distinguishable from the matter before me.

37For example, in North Waterloo, a taxi driver was assaulted by his passenger. He stopped the vehicle, the passengers got out and, when he went to close the van door, was pushed by one of the passengers, resulting in him slipping on ice and falling. The decision, upheld on appeal, found that it was impossible to separate the insured’s attempt to close the door, being pushed by the passenger and his slipping on the ice, which meant that it was reasonable to conclude that his attempt to close the door was the dominant feature of the incident and a well-known activity related to the use and operation of a vehicle. While I am alive to the principle highlighted by the applicant, I disagree that it is a rule of general application and find North Waterloo is distinguishable from the facts of this case because there are no overlapping or competing events that resulted in injuries to the applicant that would make it impossible to separate, as there were in that matter.

38Likewise, in Srour, a taxi driver stopped his vehicle and rolled down his window to investigate and speak to the pedestrian approaching the taxi, because he heard a noise. When the applicant attempted to close his window and drive off, the assailant struck the driver’s side window, causing it to break and shattering the glass. Significantly, the Tribunal determined that the assault was not an intervening act because it was clear that the applicant’s injuries were caused directly by the motor vehicle, being the shattered window. Critically, the Tribunal also noted that there was no dispute that the only injuries the applicant sustained were from the shattered window. In the matter before me, while the applicant submits that there was a shattered window during the altercation, he has not tendered any evidence to support this position. It is well-settled that submissions do not constitute as evidence.

39The applicant has also submitted an website page from the Toronto Police Services, titled “Provincial Carjacking Joint Task Force”, as evidence of an increase in automobile theft. However, I am not persuaded that the average driver in Ontario expects to run the risk of being assaulted while behind the wheel or that being assaulted is a “normal incident of the risk” associated with driving or part of the “ordinary course of things” while operating a vehicle. Similar to the reasoning of Justice Lofchik in LaFond v. Allstate Insurance Company of Canada, 2006 CanLII 40104 (ON SC), I find it difficult to accept that this type of injury can be anticipated as a routine risk of operating a motor vehicle.

40In conclusion, 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 that 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. As a result, I find that 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?

41To borrow from para. 49 of Greenhalgh, I find the physical assault by the assailants was “the aspect of the situation that most directly caused” the applicant’s injuries and therefore was clearly the dominant feature in respect of the causation analysis.

42The use or operation of the vehicle was not the dominant feature of this incident, it was the assault. 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 assaulted him.

43I 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

44The applicant was not involved in an “accident” as defined in s. 3(1) of the Schedule. As a result, the applicant is not entitled to accident benefits.

45The application is dismissed, and the substantive hearing is vacated.