Licence Appeal Tribunal File Number: 23-013584/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:
Yixuan Li
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
1Yixuan Li 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 sur-reply should be excluded as it was filed late. While I agree that the sur-reply was filed one day late, the respondent has not identified any prejudice that resulted from the late-filed submissions. Pursuant to Rule 3.1, I find that considering the sur-reply will facilitate a fair, open and accessible process and allow effective participation by all parties, while still ensuring and efficient and timely resolution on the merits of the proceedings. Accordingly, I have considered all the submissions before me.
ANALYSIS
Background
5The evidence before me regarding the incident is limited, as the applicant did not file an affidavit (despite being granted the right to do so by the Tribunal) and it appears that there was no examination under oath.
6The application for accident benefits (OCF-1) dated October 6, 2022 describes the incident as a hijacking:
“at the shell gas station after pumping air in a tire (engine was on). I was blocked by another vehicle and hi jacked at gun point; I have headaches, nightmares, and anxieties”.
7There is no description of the incident on the OCF-3. According to the applicant’s self-report during a psychological assessment on October 7, 2022, at the time of the incident the applicant was a passenger sitting in the front seat of her boyfriend’s vehicle while he was filling the tires, and as he was about to get back into the car, two assailants pointed a gun at him. One of the assailants entered the driver’s side and ordered her out of the car. The vehicle was stolen. Police attended and her boyfriend provided a report to police. A friend picked them up and took them home.
8There is no indication that the applicant or her boyfriend were physically harmed by the assailants, or that the use or operation of the vehicle was the cause of any direct physical injury.
9The applicant submits that she 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 sitting in the vehicle at that location, she would not have sustained her injuries. The applicant submits that she was forced out of the vehicle by an armed assailant and made physical contact with the vehicle that caused injuries.
10The 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”?
11I find that the applicant was not involved in an “accident” as defined by s. 3(1) of the Schedule.
12Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.
13The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused her injuries. The parties agree on the legal test but disagree on whether the facts at hand meet that test.
14In 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?
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 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
17In its submissions, the respondent disputes whether the applicant was even at the scene of the carjacking, as the police occurrence report does not mention the applicant, there were inconsistencies between the date of loss in some reports, and there were no witness statements or EUO transcript to corroborate that she was present to satisfy the purpose test.
18While I agree that there is very little corroborating evidence, and an affidavit or witness statement would have been helpful, I am persuaded that the applicant was likely present at the scene of the incident. The OCF-1 provides some facts surrounding the incident (albeit brief), a description of the incident is provided during the psychological assessment, and the clinical notes and records from Dr. Cheng contains an entry indicating “female and bf presents carjacking September 9, 2022”. With respect to the incorrect date identified in the psychological assessment repot, it is plainly a typo as the correct date is identified at other places in the report. Finally, with respect to the police occurrence report, it was the boyfriend’s car that was stolen, not the applicant’s so I’m not certain if she would have been identified on the report.
19I agree with the applicant that sitting in a parked vehicle is an ordinary and well-known activities to which automobiles are put (see Caughy). Accordingly, I find that the incident arose out of the use or operation of an automobile.
The Causation Test
20Having considered the evidence before me, I find that the applicant would not have sustained her alleged injuries “but for” her use of the vehicle. But for sitting in the parked car, the applicant would not have sustained the alleged injuries.
21However, 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.”
22The 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?
23The 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”. She submits that carjackings are common events in the Toronto area.
24The 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 her 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 she sustained any injury caused directly by the motor vehicle. She submits that she made physical contact with the vehicle that caused injuries but fails to explain how this satisfies the test for causation, and has not provided any evidence to corroborate her submission.
25Samad 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 her alleged impairments were caused by her use or operation of the vehicle.
26Similarly, I find L.L.B. distinguishable. 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”.
27The applicant fails to explain what contact with the vehicle caused an injury. From the very limited information about the incident, it doesn’t appear that the assailants made physical contact with the applicant in any way, unlike the other “assault” cases she relies on. Nor is there any evidence that contact with the vehicle itself caused an injury, such as being pushed, or in the case of L.L.B. where the door was used to strike the claimant. While contact with the vehicle is not determinative, it is relevant.
28I 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.
29The 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 use or operation of 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, that the Court held that the use or operation did not directly cause the injuries, but rather the assault.
30The 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.
31In the subject case, the carjacking was an intervening event that caused the applicant’s injuries. Without the carjacking, the applicant would not have sustained injuries. Accordingly, I find than the carjacking interrupted the chain of events from the applicant’s ordinary use of the 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.
32As 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?
33As 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 attack by the assailants, which resulted in her alleged impairments.
34I 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’ injuries.
35The 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 vehicle directly caused any injuries whatsoever. The evidence indicates that the applicant’s injuries were caused by assailants who held up her boyfriend at gunpoint, ordered her out of the vehicle, and stole it.
36I 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
37The 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.
38As a result, the applicant is not entitled to accident benefits.
39The application is dismissed.
Released: August 6, 2024
Kate Grieves
Adjudicator