Court File and Parties

CITATION: Fariad v. Intact Insurance Company, 2021 ONSC 6965

DIVISIONAL COURT FILE NO.: 041/21

DATE: 20211022

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Masood fariad, Appellant

AND:

intact insurance company, Respondent

BEFORE: Lederer, Favreau and Gomery JJ.

COUNSEL: Masood Fariad, representing himself

Tracy Brooks and Denise Junkin, for the Respondent

HEARD at Toronto (by videoconference): April 14, 2021

Endorsement

[1] Masood Fariad appeals a decision of the Licence Appeal Tribunal (the “Tribunal”) dated December 9, 2020, which found that he was not involved in an “accident” as defined in section 3(1) of the Statutory Accident Benefits Schedule, O. Reg. 34/10. (the “Schedule”). At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are the reasons.

[2] On June 10, 2018, Mr. Fariad got into an altercation with passengers in his car, which he was operating as an Uber. According to Mr. Fariad, he asked the passengers to get out of the car because of their behaviour. After getting out of the car, the passengers struck his vehicle, and Mr. Fariad drove away. He says that the car swerved as he did so and, as a result, his knee hit the steering wheel. He claims that he suffered physical, emotional and psychological injuries as a result of this incident. He sought accident benefits in respect of his alleged injuries from his automobile insurer, Intact Insurance Company (“Intact”). Intact denied the application on the basis that Mr. Fariad was not involved in an accident as defined in the Schedule.

[3] An appeal to the Divisional Court from a decision of the Tribunal is limited to a question of law: Licence Tribunal Act, 1999, S.O. 1999, c 12, section 11(6). The standard of review on errors of law is correctness.

[4] We find that the Tribunal made no error of law in finding that Mr. Fariad was not involved in an “accident”.

[5] The Tribunal applied the correct two-part legal test established by the Court of Appeal in Chisolm v. Liberty Mutual Insurance Group, (2002), 60 OR (3d) 776 (C.A.).

[6] The Tribunal found that the incident did not meet the first part of the test, namely the purpose test, which required Mr. Fariad to demonstrate that the incident arose out of the use or operation of an automobile. In this respect, the Tribunal found that Mr. Fariad’s alleged injuries “did not arise out of the use or operation of an automobile, because at the time of his alleged injuries, [he] was not using the automobile for the ordinary and well-known activities to which automobiles are put”. In this context, the Tribunal rejected Mr. Fariad’s evidence that, after the verbal altercation, he drove away to save himself, swerved the automobile and injured his knee. Ultimately, the Tribunal made findings of fact that:

The applicant’s alleged psychological injuries arose from the verbal altercation with the riders. The alleged physical injuries arose from his attempt to avoid further altercation and assault with the riders once they had exited the automobile. As a result, any injuries the applicant sustained did not arise out of the use or operation of the automobile within the meaning of the Schedule.

[7] The Tribunal went on to find that, even if the incident had met the purpose test, it did not meet the causation test, which required Mr. Fariad to demonstrate that the use or operation of an automobile directly caused the impairment. In making this finding, the Tribunal applied the three-part causation test in Chisolm.

[8] Mr. Fariad argues that the Tribunal erred in finding that he was not involved in an accident because his injuries arose in part when his car swerved as he pulled away from the altercation. However, as indicated above, the appeal is limited to questions of law. The Tribunal explicitly rejected Mr. Fariad’s evidence that his vehicle swerved as he pulled away from the incident or that he was otherwise injured at that time. These are findings of fact and not subject to appeal.

[9] Mr. Fariad also argues that the Tribunal erred in refusing to apply three cases he says support his position that the incident was an accident. At paragraph 25 of her decision, the Adjudicator explained clearly the reason for distinguishing the cases at issue as follows:

The case law cited by the applicant does not support his position here. SG v. Intact Insurance Company is not binding on me and I decline to follow it given that, unlike here, both parties agreed that the purpose test had been met. LL v. Intact is also not binding on me and I decline to follow it given that, unlike here, the respondent conceded that the assault was an accident. Amos v. Insurance Corporation of British Columbia is not helpful here given the legislation involved is insurance legislation from another Province which pre-dates the Schedule applicable to this case…

[10] At paragraph 30, the Tribunal further distinguished the SG decision as follows:

… This is not a case in which I can find on the evidence before me that there is more than one direct cause of injury. The S.G. case is not binding on me and I decline to follow but, I do note that even in that case it is indicated that an assault committed on a driver is not an accident unless the assault caused the automobile to lose control resulting in injury to the victim.

[11] We see no legal error in the Adjudicator’s reasons for distinguishing the Tribunal’s previous decision in LL and SG. As noted by the Adjudicator, the facts in those cases were different and the insurers did not contest that the applicants in those cases were involved in an accident. In any event, prior decisions of the Tribunal are not binding on the Tribunal or this Court. In the circumstances, the Tribunal made no legal error in distinguishing and not following LL and SG.

[12] Similarly, the Tribunal made no error in not following Amos. As pointed out by the Tribunal, that case dealt with differently worded legislation from British Columbia. In addition, in Chisolm, at para. 20, the Court of Appeal explicitly held that the causation part of the Amos test no longer applies in Ontario. This is because, since 1996, the Schedule has required that the incident be shown to be a “direct” cause of the injuries.

[13] The appeal is dismissed.

[14] Despite Mr. Fariad’s arguments to the contrary, we see no reason to depart from the usual principle that the successful party is to pay costs to the unsuccessful party. Mr. Fariad is to pay costs in the all-inclusive amount of $5,000 to the respondent within 30 days.

Lederer J.

Favreau J.

Gomery J.

Date: October 22, 2021