Saharkhiz v. Oppenheim in his quality as Attorney in fact in Canada for Underwriters, Members of Lloyds, London, England [Indexed as: Saharkhiz v. Underwriters, Members of Lloyd's, London, England]

49 O.R. (3d) 255

[2000] O.J. No. 1760

No. C33116

Ontario Court of Appeal

Labrosse, Laskin and Moldaver JJ.A.

May 25, 2000

Insurance -- Automobile insurance -- Statutory accident benefits -- "Accident" -- Taxi driver injured when attacked by passengers in dispute over fare -- Assault constituting "accident" for purposes of Statutory Accident Benefits Schedule -- Statutory Accident Benefits Schedule -- Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93.

NOTE: An appeal of the judgment of the Superior Court of Justice (Lederman J.), reported at 1999 ON SC 15099, 46 O.R. (3d) 154, to the Court of Appeal for Ontario was dismissed on May 25, 2000. The endorsement of the court is as follows:

Donald H. Rogers, Q.C., and Michael K. Walter, for appellant. David B. Himelfarb, for respondent.

[1] BY THE COURT: -- This appeal involves the meaning of an "accident" within s. 1 of the Statutory Accident Benefits Schedule -- Accidents after December 31, 1993 and before November 1, 1996, O. Reg. 776/93 ("SABS").

[2] The respondent, a taxi driver, was assaulted outside his taxi-cab on June 8, 1996, as a result of an argument stemming from the refusal by two customers to pay their fare. The respondent was seriously injured.

[3] The issue is whether the assault is an "accident" within the meaning of s. 1 of the SABS, that is, "an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment", entitling the respondent to statutory accident benefits.

[4] Lederman J. (the "motions judge") found in favour of the respondent. The appellant appeals this decision.

[5] The motions judge, relying on the liberal approach pronounced by Major J. in Amos v. Insurance Corp. of British Columbia, 1995 SCC 66, [1995] 3 S.C.R. 405, 127 D.L.R. (4th) 618, applied the "purpose test" and the "causation test" to the facts before him. In Vijeyekumar v. State Farm Mutual Automobile Insurance Co. (1999), 1999 ON CA 1640, 44 O.R. (3d) 545, 175 D.L.R. (4th) 154 (C.A.), this court confirmed that the provision considered in Amos was sufficiently similar to the definition of "accident" in s. 1 of the SABS that the Amos test may be applied to this definition.

[6] The motions judge was therefore correct in applying the Amos test to the facts of this case. He found that the assault was the end product of the commercial relationship that had been created when the ride in the taxi-cab had started. He also found that an unbroken line of causation existed, beginning with the ride in the taxi-cab and ending with the assault.

[7] He thus concluded that the injuries sustained by the respondent were caused, at least indirectly, by the use and operation of the taxi-cab.

[8] The motions judge did not misapprehend or fail to appreciate the evidence. His findings and the inferences he drew are well founded on the evidence. We agree with his analysis and conclusion.

[9] The appeal is dismissed with costs.