Licence Appeal Tribunal File Number: 23-013573/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:
Pengfei Ji
Applicant
and
Aviva Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Cezary Paluch, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Penfei Ji (“the applicant”) was involved in an incident on September 9, 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 Aviva 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.
PROCEDURAL ISSUE
4The respondent submits that the applicant’s reply and sur-reply should be excluded, as both were filed late. I have considered all the evidence before me, including the reply and sur-reply. While I agree, the submissions were filed late (the reply by one day and the sur-reply two days late), the respondent has not identified any prejudice that resulted from the late-filed submissions. It could have filed a motion to exclude the submissions. The prejudice to the applicant if I were to exclude his submissions greatly exceeds any prejudice to the respondent for this minimal delay.
ANALYSIS
Background
5On September 9, 2022, the applicant drove his vehicle to a gas station. He parked the vehicle and was filling his tires with air when two individuals approached, pointed a gun at him, and stole his vehicle.
6The application for accident benefits (OCF-1) dated September 28, 2022 describes the incident as a hijacking:
“at the shell gas station after pumping air into a tire (engine was on). I was blocked by another vehicle and hijacked at gun point”.
7The OCF-1 indicates that, as a result of the incident, the applicant suffers from neck pain, headaches, severe sleeping issues, and anxiety.
8The police records identify the incident as a “robbery – vehicle jacking”. There was no collision report filed. On individual was later charged with robbery.
9According to his examination under oath, the applicant testified that he was not physically struck or injured in any way. The assailants did not physically touch him. Nor is there any indication that there were any injuries caused by making contact with the vehicle as part of the incident. The assailants demanded the keys, which were still in the running vehicle, and drove away.
10The 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 if not for the applicant’s operating the vehicle and filing up his tires at that location, he would not have sustained injuries.
11The respondent submits that the applicant has failed to prove that the use and operation of an automobile directly caused injuries as required by s. 3(1) of the Schedule.
Was the incident an “accident”?
12I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule, for the following reasons.
13Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
14The 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.
15In 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:
The purpose test: Did the incident arise out of the use or operation of an automobile? and,
The causation test: Did the use or operation of an automobile directly cause the impairment?
16The 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?
17The 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:
The “but for” consideration;
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,
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
18In its submissions, the respondent concedes that the applicant has met the purpose test. I agree with the parties that filling up the tires of a vehicle are part of the ordinary and well-known activities to which automobiles are put. Accordingly, I find that the incident arose out of the use or operation of an automobile.
The Causation Test
19Having considered the evidence before me, I find that the applicant would not have sustained these injuries “but for” his use or operation of the vehicle. But for operating his vehicle and filling up his tires with air, he would not have sustained his alleged injuries.
20However, 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.”
21The 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?
22The 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 submits that carjackings are common events in the Toronto area.
23The applicant relies on Srour v Aviva Insurance Company of Canada, 2024 CanLII 12101 (ON LAT) (“Srour”); North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (“Samad”); and L.L.B. v. Intact Insurance, 2020 CanLII 95904 (ON LAT) (“L.L.B.”) in support of his position that there was no intervening event that broke the chain of causation. I find these cases distinguishable. In Srour, the applicant was injured by shards of glass when his window was struck and shattered by an assailant. The vehicle itself was used to inflict the injury. Here, there is no evidence that the applicant was struck in any manner or that he sustained any injury caused directly by the use or operation of the motor vehicle. The applicant was standing next to his car when the assailants ordered him to hand over the keys and they drove away. There was no physical contact between the applicant and the vehicle, nor was it used to inflict injury. While contact with the vehicle is not determinative, it is relevant.
24Samad is also distinguishable on the facts. In that case, the applicant was a taxi driver, who was punched in the face by a front seat passenger. The passengers then left the vehicle, but left the door open. As the applicant went to close the door, he was shoved by one of the passengers and slipped and fell into a ditch. The Superior Court upheld the finding that the assault was not an intervening act, but than the use or operation of the vehicle continued throughout. In this case, the applicant fails to connect how his alleged impairments were caused by his use or operation of the vehicle.
25Similarly, I find L.L.B. unpersuasive. The incident in that case was separated into an “accident” phase and an “assault” phase. It was found that where the vehicle itself was used as an instrument to the applicant’s injuries – the door of the car was used to strike the applicant – was found to be an “accident”. It was distinguished form the second phase of the incident, where the assault outside of the vehicle when the applicant was punched in the face, was not an “accident”.
26I agree with the respondent that the cause of the applicant’s purported impairments was the carjacking. The carjacking was an intervening act that broke the chain of causation. The respondent relies on Downer v. The Personal Insurance Co., 2012 ONCA 302 (“Downer”); Parviz v. Economical Insurance, 2023 CanLII 122910 (ON LAT) (“Parviz”); Patel v. Coseco Insurance Co., 2021 CanLII 154590 (ON LAT) (“Patel”); and Guo v. Allstate Insurance Company of Canada, 2024 CanLII 28828 (“Guo“) in support of its case. I 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.
27The Court of Appeal in Downer noted that proximity and location are not enough to satisfy the causation test. It was not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that an automobile was somehow involved in the incident giving rise to the injury. The use or operation of the automobile must have directly caused the injury. The plaintiff in Downer was sitting in his vehicle at a gas station when he was assaulted. The Court held that the use or operation did not directly cause the injuries, but rather the assault.
28I find that the applicant’s vehicle was the location of the carjacking but it was not the direct or indirect cause of his injuries. Even if the vehicle provided the opportunity, location, and motivation for the carjacking, 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. Similarly, in Patel, the applicant was in his car when gunshots were fired at him. The Tribunal rejected the applicant’s submission that the injuries resulted from a continuous chain of events related to the operation of a motor vehicle. Rather, the shooting was a severable act of violence which clearly broke the chain of causation.
29In the subject case, the carjacking was an intervening event that caused the applicant’s injuries. Without the carjacking, the applicant would not have been injured. Accordingly, I find than the carjacking interrupted the chain of events from the applicant’s ordinary use of his vehicle. I am persuaded by the reasoning in Guo, where the Tribunal found 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 use or operation of the vehicle was ancillary to the assault.
30As 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?
31As 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 carjacking by the assailants, which resulted in his alleged physical and psychological impairments.
32I 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.
33The use or operation of vehicle was not the dominant feature of this incident, it was the carjacking. There is no evidence that the use or operation of the applicant’s vehicle directly caused any injuries whatsoever. The evidence indicates that the applicant’s injuries were caused by assailants who held him up at gunpoint and stole his vehicle.
34I 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
35I find that the September 9, 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.
36As a result, the applicant is not entitled to accident benefits.
37The application is dismissed.
Released: August 7, 2024
Kate Grieves
Adjudicator