CITATION: Economical Mutual Insurance Company v. Whipple, 2012 ONSC 2612
DIVISIONAL COURT FILE NO.: 489/11
DATE: 20120430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEROLD, ASTON AND WILTON-SIEGEL JJ.
BETWEEN:
ECONOMICAL MUTUAL INSURANCE COMPANY
Applicant
– and –
DANIEL WHIPPLE and FINANCIAL SERVICES COMMISSION OF ONTARIO
Respondents
Christopher J. Schnarr and Nicole Simes, for the Applicant
Martin E. Tiidus, for the Respondent, Daniel Whipple
Stephen Scharbach, for the Respondent, Financial Services Commission of Ontario
HEARD at Toronto: April 30, 2012
WILTON-SIEGEL J. (orally)
[1] The applicant, Economical Mutual Insurance Company (“the applicant”), seeks judicial review of a decision of the Financial Services Commission of Ontario (“the Commission”) under the Insurance Act, R.S.O. 1990, c. I.8 (“the Act”) dated October 6, 2011 (“the Decision”).
[2] The Decision dismissed the applicant’s appeal of the Order dated November 15, 2010 of an Arbitrator, Susan Sapin (“the Arbitrator”), who found that the respondent, Daniel Whipple (“the respondent”) was injured in an “accident” under subsection 2(1) of the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, Ontario Regulation 403/96 (“the SABS”).
[3] We are satisfied that the appropriate standard of review is reasonableness in accordance with the principles set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 64. There is a strong privative clause. The fact that the legislation also provides an option to insureds that includes access to the courts does not detract from the force of the privative clause once the option of arbitration before the Commission is selected. The purpose of the arbitration procedure is to provide a specialized and efficient dispute resolution process. The question at issue, while a question of law, necessarily invokes this specialized expertise in the context of interpretation of the home statute. Furthermore, we do not see this issue of law as being of central importance to the legal system as a whole given that the applicable test is well established. Lastly, the fact that the courts also have expertise in this area also does not detract from the specialized expertise of the Arbitrator and the Director’s Delegate.
[4] We note that this conclusion has been confirmed by a series of decisions of this Court in respect of the specific issue involved in the current proceeding: see, for example, the most recent decision, Kumar v. Coachman Insurance Company and Financial Services Commission of Ontario 2004 11702 (ON SCDC), [2004] O.J. No. 2494.
[5] In the Decision, after reciting the facts, the Director’s Delegate referred to the definition of “accident” in subsection 2(1) of the SABS and properly set out the two-part test to be applied in considering whether the incident was an “accident”:
(i) the use or operation purpose test set out in Amos v. Insurance Corp. of British Columbia, 1995 66 (SCC), [1995] 3 S.C.R. 405; and
(ii) the causation test set out in Chisholm v. Liberty Mutual Group (2002), 2002 45020 (ON CA), 60 O.R. (3d) 776 (C.A.).
[6] With respect to the former, the Director’s Delegate set out the test as follows: Did the accident result from the ordinary and well-known activities to which automobiles are put?
[7] The applicant says that the Arbitrator’s finding that the event, i.e. the headstand, was “unprecedented” based on the evidence before her precluded a finding that the accident resulted from the ordinary and well-known activities to which the vehicle was put. The applicant concedes that the test is to be applied in a contextual manner, having regard to the particular vehicle in question. The Arbitrator found that this vehicle was designed to be used and operated as a “mobile party vehicle” and that the Respondent’s attempted headstand was “within its scope and ordinary features”.
[8] The Director’s Delegate concluded that the Arbitrator did not err in reaching this conclusion, commenting that “almost any behaviour that seems unpredictable and unreasonable in one context could be deemed to be an accident within another specific context, such as in this incident”.
[9] With respect to the causation test, the Director’s Delegate accepted the Arbitrator’s statement of the test as follows: Was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the ordinary course of things? He observed properly that, in this case, the essential portion of the causation test was answered by the purpose test.
[10] The applicant’s position was that the respondent’s decision to attempt a headstand, because it was “unprecedented”, constituted a break in the chain of causation.
[11] The Director’s Delegate concluded that the Arbitrator did not err in finding that “the activities around the ‘stripper pole’ were ‘part of the ordinary course of things’ for the party bus and that once the activities around the pole began, they continued in an unbroken chain, the last link being Mr. Whipple’s headstand”.
[12] The issue in this proceeding must be assessed against the backdrop that the vehicle was a mobile party bus in which it was expected that the occupants would be “cavorting around the ‘stripper pole’ under the influence of alcohol”.
[13] The Applicant’s position is that “cavorting around the stripper pole” should not include a headstand because there was no evidence that anyone ever used the pole for this purpose in the past. On this basis, it says, that the headstand was not an ordinary use of the vehicle and further that it was an intervening event that broke the chain of causation.
[14] We are of the opinion that it was reasonably open to the Director’s Delegate to conclude that the Arbitrator did not err in finding that, given the particular nature of the vehicle involved, the headstand constituted an ordinary use of the vehicle. All the parties agree that the presence of the “stripper pole” invited “cavorting” activities around and with it. The Director’s Delegate saw no distinction in principle between the antics of the other parties described earlier in the Decision from the respondent’s headstand in assessing the ordinary use of this particular vehicle or in assessing this action as an intervening event for causation purposes.
[15] In our opinion, this is a reasonable conclusion on the particular facts of this case. The application for judicial review is therefore dismissed.
HERALD J.
COSTS
[16] The application is dismissed for oral reasons of the panel read today by Wilton-Siegel J. The Applicant shall pay to the respondent Whipple his costs of this application fixed at $10,000.00 inclusive.
WILTON-SIEGEL J.
HEROLD J.
ASTON J.
Date of Reasons for Judgment: April 30, 2012
Date of Release: May 7, 2012
CITATION: Economical Mutual Insurance Company v. Whipple, 2012 ONSC 2612
DIVISIONAL COURT FILE NO.: 489/11
DATE: 20120430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEROLD, ASTON AND WILTON-SIEGEL JJ.
BETWEEN:
ECONOMICAL MUTUAL INSURANCE COMPANY
Applicant
– and –
DANIEL WHIPPLE and FINANCIAL SERVICES COMMISSION OF ONTARIO
Respondents
ORAL REASONS FOR JUDGMENT
WILTON-SIEGEL J.
Date of Reasons for Judgment: April 30, 2012
Date of Release: May 7, 2012