Soukamneuth v. Kent & Essex Mutual Insurance Company, 2025 CanLII 20843

Citation: Soukamneuth v. Kent & Essex Mutual Insurance Company, 2025 ONLAT 24-003865/AABS-PI

Licence Appeal Tribunal File Number: 24-003865/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:

Sourigna Soukamneuth

Applicant

and

Kent & Essex Mutual Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Michael Blois, Counsel

For the Respondent:

Kerry L. Figliomeni, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Sourigna Soukamneuth (the “applicant”) was involved in an incident on August 20, 2023, 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 Kent & Essex Mutual Insurance Company (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 involved in an “accident” as defined in s. 3(1) of the Schedule.

ANALYSIS

Background

4The parties are generally in agreement with respect to the factual circumstances of this dispute. The applicant provided a recorded audio statement on October 23, 2023 detailing the incident.

5The applicant was sitting in his parked vehicle in the parking lot of a hotel with the engine on and the windows rolled down. A third party armed with a gun approached the driver’s side window and demanded the car keys. The assailant reached in through the window trying to take the keys out of the ignition. The gun went off next to the applicant’s head and the assailant struck the applicant in the head four or five times with the butt of the gun. A second assailant was on the passenger side reaching into the vehicle. Using his left leg, the applicant pushed the door open against the first assailant. He tried to kick the assailant off the door. The applicant put the car in reverse trying to get away from the attack. The applicant’s left leg was still outside of the vehicle as the car was travelling in reverse when the vehicle collided with dumpsters and some fencing at the rear of the hotel, at which point the assailant fled. The applicant’s left leg was struck between the vehicle and dumpster resulting in injuries, and ultimately amputation of his leg above the knee.

Was the incident an “accident”?

6I find that the applicant was involved in an “accident” as defined by s. 3(1) of the Schedule.

7Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment”.

8The 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.

9In 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?

10The 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?

11The 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

12The respondent submits that the incident was not directly caused by the use or operation of an automobile, but rather an assault which is not part of the normal use or operation of an automobile. The respondent submits that an assault is not part of what would fairly be considered as a normal incident of the risk created by the use or operation of an automobile.

13The respondent relies on B.H. v. Primmum, 2019 CanLII 22205 (ON LAT) (“B.H.”) in support of its position. While not binding on me, I also find the case distinguishable. In that case the adjudicator found that the regular use or operation of the vehicle ceased when the applicant opened the car door and engaged in an altercation with another individual several feet away from the vehicle, which interrupted what would be considered the regular use of the automobile. In the subject case, the applicant did not leave the vehicle as the assault was taking place, but rather put his vehicle in reverse to escape an assault.

14I agree with the applicant that reversing a vehicle is an ordinary and well-known activities to which automobiles are put (see Caughy). As confirmed by the Divisional Court in Madore v. Intact Insurance Company, 2023 ONSC 11, the purpose test is met where there is a link between the “use and operation” of the automobile and the “impairment”. Here the applicant was injured as a result of driving his vehicle in reverse and striking the dumpster area. Accordingly, I find that the incident arose out of the ordinary use or operation of an automobile.

The Causation Test

The “but for” consideration

15The respondent submits that “but for” the assault, the incident and impairments would not have occurred.

16I am persuaded by the Tribunal’s reasoning in L.L.B. v. Intact Insurance Company, 2020 CanLII 95904 (ON LAT), where 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 – it was found to be an “accident”. The first phase was distinguished from the second phase of the incident, where an assault outside of the vehicle occurred when the applicant was punched in the face and was not an “accident”. I find this case to be instructive, given the similar fact scenario.

17Similarly, I am bound by the Divisional Court decision Jiang v. The Co-operators General Insurance Company, 2024 ONSC 1255, wherein the applicant was assaulted by her husband while driving, and then subsequently lost control of the vehicle, crashing into a curb and striking her head. The Court held that there were two separate phases to the incident in question with separate dominant features and were direct causes of the injuries.

18I find that the facts of this incident are severable into two distinct phases – first there was an assault, followed by an accident. The first phase of the incident was an assault by the assailant involving a weapon.

19With respect to the second phase of the incident, I find that the applicant would not have sustained his alleged injuries “but for” his use of the vehicle. But for the fact that he was operating his car in reverse with his leg extended outside of the vehicle when it collided with the dumpsters, the applicant would not have sustained his impairments.

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.” This is a low threshold that acts to filter out cases that cannot succeed. I find that this low threshold has been met.

21Legal 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?

22The respondent submits that even if the applicant is able to meet the “but for” test, the assault was an intervening act that severed the chain of causation. The respondent submits that there was no break between two events: the assault commenced and did not end until the attacker stopped hitting the applicant, let go of the car and left the scene.

23In Chisholm, the insured was driving when an unknown assailant fired gun shots at the vehicle, wounding him in the neck and rendering him a paraplegic. There was no evidence of a car accident contributing to his injuries or of him losing control of his car and being injured as a result. According to Chisholm, where an intervening act falls outside the normal risk associated with the use or operation of an automobile, it will break the chain of causation. However, Justice Laskin also noted:

Conceivably road accidents may occur where there is more than one direct cause of a victim’s injuries and one of the direct causes is the use or operation of an automobile. That, however, is not the case here. The only direct cause, the only effective cause of Chisholm’s injuries, were the gun shots.

24In Chisholm, it was not alleged that there were injuries from anything other than the assault. The court found that the gunshots from the unknown assailant were an intervening act that were the only direct cause of his impairment.

25In the subject case, the “assault” phase occurred in the vehicle when the applicant was struck by the assailant with the firearm, and initiated the chain of events which occurred in quick succession. The assault was interrupted by the second phase of the incident, when the applicant put the car in reverse, with his leg extended outside of the vehicle and drove into the dumpsters, meets the definition of an “accident”. The applicant’s injuries to his leg were sustained while driving in reverse and colliding with the dumpsters and are as a direct result of his use and operation of the vehicle.

26Following the reasoning in Jiang, I find that while the assault phase of the incident may have been an intervening cause, the applicant’s injuries from the second phase of the incident -- the subsequent loss of control of the vehicle and collision with the dumpsters -- were directly caused by the applicant’s use or operation of the vehicle.

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

27As 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, there were two separate features to the incident, as contemplated by Jiang. The dominant feature of the first phase of the incident was an assault with the butt of the gun. However, the dominant feature of the second phase of the incident was the reversing of the car into the dumpsters, resulting in injuries to the applicant’s left leg. The use or operation of the vehicle was the aspect of the situation that most directly caused the applicant’s injuries.

28For the reasons above, I find that this incident meets the definition of an “accident” pursuant to s. 3(1) of the Schedule.

ORDER

29The applicant was involved in an “accident” as defined in s. 3(1) of the Schedule.

30In accordance with the Case Conference Report and Order, the Tribunal will contact the parties to set a resumption of the case conference to address the substantive issues in dispute.