CITATION: Sajid v. Certas, 2022 ONSC 2071
DIVISIONAL COURT FILE NO.: 22-082-00
DATE: 20220412
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJSC McWatt, Backhouse, Sutherland JJ.
BETWEEN:
MUHAMMAD SAJID
Appellant
– and –
CERTAS HOME AND AUTO INSURANCE COMPANY
Respondent
-and -
THE LICENCE APPEAL BOARD
Respondent
Samia A. Alam and Paul Barafato, Counsel for Appellant
Tushar Tangri, Counsel for Certas
Valerie Crystal, Counsel for the Licence Appeal Board
HEARD by videoconference in Toronto on March 28, 2022
Backhouse J.
Overview
[1] The Appellant, Muhammad Sajid, appeals the reconsideration decision of Vice-Chair Lester (the "Vice-Chair") dated July 16, 2019 upholding an earlier decision of Adjudicator Christopher Ferguson ("the Adjudicator") dated April 27, 2018. The decisions found that an incident where the Appellant, a taxi driver, was assaulted by a passenger after they exited the taxi together and walked some distance away so that the Appellant could collect the fare was not an "accident" as defined in s.3(1) of the Statutory Accident Benefits Schedule ("the Schedule").[^1]
[2] This court has jurisdiction pursuant to s. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999[^2] ("LATA") only on a question of law. The parties agree on the legal tests to be applied under s. 3(1) of the Schedule. The arguments raised by the Appellant on this appeal of whether the use and operation of the motor vehicle directly caused the Appellant's impairments, thereby meeting the definition of "accident", are questions of mixed fact and law which do not give rise to an error of law alone. For the reasons set out below the appeal is dismissed.
Background
[3] The Appellant was a taxi driver. On July 16, 2013, the Appellant was attacked by a passenger after accompanying him out of his cab and into a walkway to collect his fare (the "incident"). The Appellant had responded to a dispatch call at approximately 11:30 PM that night and picked up three young adults. He drove them to the drop-off location in front of a townhouse complex. Two of the passengers exited the vehicle and went inside the townhouse complex. The third passenger exited the vehicle and the Appellant advised him of the fare. The passenger attempted to pay via his credit card but realized he did not have his credit card with him so he asked the Appellant to accompany him to his home in the complex to get cash to pay him. The Appellant's evidence was that knowing that dispatch had requested the taxi and would have the passenger's information and given that he was familiar with the area and that it was normal procedure for taxi drivers to follow passengers to their homes to collect payment, he agreed, turning on the taxi's hazard lights and leaving the engine on. They exited the taxi and he followed the passenger along the walkway to his home.
[4] After approximately 40-50 steps, the passenger turned around and attacked the Appellant. After beating the Appellant, the passenger ran off. The Appellant then called his wife, who called 911. As a result of the assault, the Appellant spent one month in hospital and underwent multiple surgeries. In addition to physical impairments, the Appellant also now suffers from PTSD, major depressive disorder, and sleeping problems. The nature and extent of the Appellant's injuries are not in dispute, nor is the fact that they were inflicted by the passenger.
[5] The Appellant applied to his insurer, the Respondent Certas, for benefits. Certas denied the Appellant's application and the Appellant applied to the Licence Appeal Tribunal ("LAT"), disputing the denial of benefits. As a preliminary issue, Certas disputed that the incident was an "accident" as defined by the Schedule.
[6] Benefits under the Schedule are only available where the person "sustains an impairment as a result of an accident."[^3] Section 3(1) of the Schedule defines an "accident" as "an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device."
Adjudicator's decision dated April 27, 2018
[7] In a decision dated April 27, 2018, Adjudicator Christopher A. Ferguson held that the incident of July 16, 2013 was not an "accident" as defined by the Schedule and dismissed the Appellant's appeal.
[8] The Adjudicator set out the two-part test for determining whether an incident constitutes an "accident" under the Schedule. First, the claimant must satisfy the "purpose test," which asks whether the incident arose out of the "ordinary and well-known activities for which automobiles are used." Second, the claimant must satisfy the "causation test," which asks whether the use or operation of an automobile directly caused the impairment, and whether there was an "intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things."
[9] The Adjudicator found that the ordinary use or operation of an automobile, specifically a taxi, includes picking up, transporting, and dropping off paying passengers. He noted that while the Appellant was engaged in these activities when the incident occurred, he was not persuaded that after the Appellant exited the taxi and walked some distance away from it to collect a fare that this fell within the definition of "ordinary use and operation" of the vehicle. He accordingly found that the purpose test was not met. The Adjudicator noted that while the Appellant stated in his affidavit that leaving the taxi to collect a fare is an ordinary use and operation of a taxi vehicle, this was contradicted by statements made publicly by a fellow taxi driver and reported in the media shortly after the incident that taxi drivers are cautioned never to leave their cars to collect fares. News reports containing this statement were submitted in evidence by the Respondent.
[10] The Adjudicator also found the causation test was not met. He found that unlike the cases relied on by the Appellant, neither the Appellant's vehicle itself nor any action associated with operating it was a factor in the injuries sustained by the Appellant. This persuaded the Adjudicator that the chain of causation was broken. The Adjudicator noted that based on the case law, an "incident" may involve a train of events that includes both assault and accident, but if specific acts within an incident are distinct and severable, acts of assault are not accidents. The Adjudicator found the assault was a distinct and severable act from the operation of the taxi and was therefore not an "accident."
Reconsideration Decision dated July 16, 2019
[11] The Appellant requested reconsideration of the Adjudicator's Decision, asserting that the Adjudicator made serious errors of law and fact and that recent caselaw from the Divisional Court would have affected the result had it been considered. In a decision dated July 16, 2019, Vice-Chair Chloe Lester dismissed the request for reconsideration, upholding the Adjudicator's conclusion that the Appellant did not meet the purpose or causation test and the incident was therefore not an "accident" within the meaning of the Schedule.
[12] First, the Vice-Chair disagreed that the Adjudicator failed to acknowledge other relevant facts set out in the Appellant's affidavit describing the chain of events. The Vice-Chair found those details were "inconsequential" and the Adjudicator considered the relevant facts in their entirety.
[13] Second, the Vice-Chair rejected the Appellant's argument that the Adjudicator erred by not stopping his analysis at the point where he concluded that the Appellant was engaged in an ordinary use and operation of a taxi when he was picking up, transporting and dropping off his passengers. She reasoned that had the Adjudicator stopped the analysis there and not considered the events leading up to the assault, the Appellant would not have sustained an impairment; the impairment was not caused until the Appellant stepped out of his car and followed the passenger down a laneway.
[14] Third, the Vice-Chair disagreed that the Adjudicator erred in relying on "double hearsay" and unsworn statements (the newspaper article containing the other taxi driver's comment that drivers are cautioned never to leave their cars to collect fares). The Vice-Chair noted that the Appellant could have filed a motion to strike the evidence if he took issue with its admission. Further, she found that the Adjudicator had the latitude to consider evidence that would not necessarily be accepted in the courts, and the statement in the newspaper article was a factor in the decision but not the only factor.
[15] Fourth, the Vice-Chair agreed with the Appellant that the Adjudicator had failed to outline the "but for" stage of the causation analysis, which is used for exclusionary purposes to eliminate factually irrelevant causes. However, this did not change the result as the "but for" test does not establish legal causation – the Adjudicator ultimately found that the chain of causation had been broken and the dominant feature of the impairments was as a result of the assault. The Appellant had failed to establish the other parts of the causation test.
[16] Finally, the Vice-Chair distinguished the recently released Divisional Court decision North Waterloo Farmers Mutual Insurance Co. v. Samad[^4] on its facts and rejected the Appellant's argument that it would have changed the result, had it been considered.
[17] The Vice-Chair found that even if in the Appellant's case the purpose test was met on the basis that payment of fares is an ordinary use of operating a taxi even when it takes place away from the vehicle, the Appellant failed on the causation test because the use and operation of the vehicle was not a direct cause of his injuries. The Vice-Chair upheld the Adjudicator's conclusion and dismissed the Appellant's request for reconsideration.
Issues raised on this appeal
[18] This appeal raises the following issues:
Does this appeal raise any questions of law?
Did the Tribunal err in law by failing to consider relevant evidence?
Did the Tribunal err in the application of the purpose test?
Did the Tribunal err in application of the causation test?
Court's Jurisdiction
[19] This court has jurisdiction pursuant to s. 11(1) and (6) of the LATA. Section 11(6) provides that "[a]n appeal from a decision of the Tribunal relating to a matter under the Insurance Act may be made on a question of law only."
Standard of Review
[20] The parties agree that this appeal is restricted to questions of law and the applicable standard of review is correctness.
Analysis
[21] This is an appeal from the April 16, 2019 reconsideration decision of the Vice-Chair, not an appeal of the decision of the Adjudicator of April 17, 2018. However, because the Vice-Chair's reconsideration decision upheld the Adjudicator's decision, it is necessary to consider the details of the Adjudicator's decision.
Issue 1: Does this Appeal Raise any Questions of Law?
[22] The parties are in agreement that the test to establish whether an incident constitutes an accident under the Schedule is as follows:
(a) The Purpose Test: Did the incident arise out of the ordinary and well-known activities for which automobiles are used; and
(b) The Causation Test: Did such use or operation of automobiles directly cause the impairment?
[23] The Respondents submitted that the Appellant's arguments are that the Vice-Chair erred in the application of the legal tests to the facts of this particular incident. It is asserted that this is a question of mixed fact and law that falls outside the scope of s.11(6) of LATA and is not properly before this court.
[24] This court may consider any extricable question of law raised by the Appellant. But to the extent that the Appellant asserts that the Tribunal erred in its application of the legal tests to the facts of this particular incident, these are questions of mixed fact and law that are outside the scope of this appeal.
Issue 2: Did the Tribunal err in law by failing to consider relevant evidence?
[25] The Adjudicator concluded that the Appellant leaving his cab to collect a fare was an intervening act which was not considered a normal risk created by the use and operation of a motor vehicle which broke the chain of causation and disentitled the applicant to benefits. In doing so it relied upon a newspaper report of a statement allegedly made by another taxi driver, Asif Abbas, submitted by Certas to the Adjudicator in reply. Mr. Abbas's statement reported in the newspaper was that taxi drivers are cautioned never to eave their cars to collect fares.
[26] The Appellant submits that the Adjudicator failed to consider the Appellant's sworn evidence describing the entire chain of events:
• It was normal procedure to follow people to their home to collect payment, especially where the call came from dispatch;
• that he trusted these passengers because they had called dispatch so their personal information was known;
• he knew the area;
• the passenger said he would pay with Visa and then realized he did not have his card on him and asked the Appellant to come to his home to get paid;
• he turned on the hazard light and left the engine on;
• It was less than one minute from the time he exited the taxi that the assault occurred; and
• When the taxi was retrieved by the taxi company, it still had the key in the ignition and the lights were still on.
[27] The Adjudicator stated:
[15] I find that the purpose test has not been met in this case. The ordinary use or operation of an automobile, specifically a taxi, includes picking up, transporting and dropping off paying passengers, and it is uncontested that this is what MS was engaged in when the incident occurred. However, I am not persuaded that MS's exiting his cab and walking some distance away from it to collect a fare from a passenger falls within the definition of ordinary use and operation of a vehicle.
[16] MS's affidavit to the effect that leaving his cab to collect a fare is ordinary use and operation of a taxi vehicle is contradicted by statements made publicly by a fellow taxi driver in his community shortly after the incident, reported by local media and submitted in evidence by Certas, that taxi drivers are cautioned never to leave their cars to collect fares, even if it means losing money. The uncontested circumstances of MS's act, and the disinterested commentary by a fellow taxi driver in the same community lead me to conclude that this is not "ordinary use and operation" of MS's vehicle.
[28] The Appellant submits that while the Tribunal has the latitude to accept hearsay evidence under s.15 of the Statutory Power and Procedure Act[^5], in this case it was an error of law to ignore the Appellant's sworn evidence over double hearsay. The Appellant further submits that the Adjudicator did not provide the Appellant an opportunity to respond to the statement raised in Certas's reply submissions.
[29] An unsworn newspaper report is a questionable basis for concluding that leaving the taxi was not part of its ordinary use/operations as the Appellant had attested to. However, it is apparent from the Adjudicator's reasons that he recognized and took into account that the Appellant was asserting that he left his taxi to go a short distance to collect a fare which he deposed was a normal risk associated with the ordinary use and operation of his vehicle. It is also apparent that the Adjudicator took into account the Appellant's assertion that his use and operation of the taxi was still underway when his injuries were sustained. He noted the Appellant's evidence that the vehicle was merely stopped - engine on and hazard lights on - for the purpose of enabling him to collect his fare, which the Appellant deposed was an integral part of operating a taxi and he was intending to continue his journey once his fare was collected.
[30] The issue of a decision-maker placing undue weight on unreliable evidence, such as questionable hearsay evidence, is most often treated as a question of fact, or as being a question of mixed fact and law where that evidence is being relied on to determine whether a legal standard is met.[^6] If the Adjudicator considered the evidence, but reached the wrong conclusion, then the error is one of mixed law and fact.
[31] Moreover, a decision-maker is presumed to have reviewed the full record absent proof to the contrary.[^7] The Adjudicator has to be assumed to have considered the Appellant's evidence and to not have been persuaded that the entire incident was in the ordinary use of a taxicab. While the Adjudicator's reliance on the newspaper article causes me concern in the circumstances of this case, I am unable to find that his finding was based on no evidence, irrelevant evidence or an irrational inference which could constitute an error of law.[^8]
[32] I am unable to find that this gave rise to an error of law in this instance.
Issue 3: Did the Tribunal err in the application of the Purpose Test?
[33] The Appellant submits that at paragraph 15 of the Decision, the Adjudicator acknowledged that the Appellant was engaged in the ordinary use or operation of his taxi – picking up, transporting, and dropping off passengers – when the incident occurred. The Appellant submits that therefore the purpose test was satisfied and the Adjudicator erred by then applying the purpose test a second time when he found that exiting the cab and walking some distance away to collect the fare was not within the ordinary use and operation of the vehicle. It is submitted that this is contrary to the case law, which confirms that a person does not have to be in the vicinity nor actively using the vehicle. The Appellant submits that these errors were repeated by the Vice-Chair on reconsideration.
[34] It has been said many times that each case must be determined on its own facts.[^9] None of the decisions relied upon by the Appellant is on all fours with the facts in this case. I find no error in the Adjudicator looking at the entire chain of events and in determining that it was not within the ordinary use and operation of the vehicle and that the purpose test was not met. The Vice-Chair made no error of law in confirming this.
Issue 4: Did the Tribunal err in the application of the Causation Test?
[35] The Appellant argues that the Adjudicator erred in finding that causation was not established.
[36] The Appellant submitted that his analysis fails to engage in the "but for" analysis or to take into account that a "direct cause" does not need to be the only or immediate cause and can include situations where there is no active use of the vehicle, no contact with the vehicle, and where the vehicle is not the instrument of injury. It is submitted that the Adjudicator erred in finding that the chain of causation was broken. The Appellant submits that the key distinguishing factor in cases where the incident was found not to be an accident is that, unlike the facts in this case, the use or operation of the automobile had actually ended and intervening events occurred between the use of the vehicle and the resulting injury such that the vehicle could not be the dominant feature of the injury.
[37] In this case, it is argued, the chain of events was unbroken as the assault occurred before the transaction had concluded. Collecting a fare is part of the ordinary use or operation of a taxi and cannot be severed from the rest of the transaction. The Appellant had left his car engine on and was lured into the walkway to collect his fare when the assault occurred. The Appellant was still in the midst of operating his taxi in the normal course by attempting to collect his fare when he was assaulted. The Appellant relies on the Samad case, also involving a taxi driver, where the assault occurred prior to payment of the fare so there was no break in the chain of events.[^10]
[38] An incident can still be an "accident" if the intervening act is a "normal incident to the risk created by the use or operation of the car."[^11] The Appellant submits that an assault by a passenger is a risk created by the use or operation of the taxi and does not break the chain of causation. It is submitted that the assault was so closely intertwined with the use and operation of the taxi that the two are not severable.
[39] The Appellant relies on North Waterloo Farmers Mutual Insurance Co. v. Samad (Samad)[^12], in which the Divisional Court held:
[65] A "direct cause" is a cause or an act that sets in motion an uninterrupted chain or train of events or the first in a row of blocks after which the rest fall down without the assistance of any other act or intervention of any other force. If an unbroken chain of events involving the use or operation of an automobile leads to an injury, the injury can be said to have been directly caused by the incident. (Chisholm v. Liberty Mutual Group, 2002 45020 (ON CA), [2002] O.J. No. 3135 (C.A.) at para. 27 and Petrosoniak and Security National Insurance Co. (FSCO A98-000198, November 2, 1998), at p. 7.)
[66] There need not be one direct cause, and a direct cause need not be the most immediate cause. (Wawanesa Mutual Insurance Company and Webb (FSCO Appeal P11-00015, July 18, 2012), p. 6.)
[40] The Divisional Court decision in Samad was not yet released when this matter was before the Adjudicator but was considered by the Vice-Chair. She distinguished the case on the following basis: In Samad, the injuries were not solely because of the assault but also due to the applicant slipping on ice in the process of exiting the motor vehicle to close the passenger door. This was found to be "using or operating a motor vehicle", unlike the finding in this case. In this case, the Appellant's injuries were exclusively as a result of the assault. The Appellant was not in his vehicle when the assault occurred unlike Samad, the use and operation of the vehicle did not directly cause the impairments and there was only one direct cause of his injuries, not multiple like in the case of Samad.
[41] I am unable to find that it was an error of law to distinguish Samad on this basis.
[42] The Vice Chair described the causation test as follows:
[10] b. The causation test: Did such use and operation of an automobile directly cause the impairment? Was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the "ordinary course of things"? In applying the causation test the adjudicator must undertake a three-prong assessment, the "but for", intervening cause and dominant feature test.
[43] A direct cause is one that sets in motion a train of events that brings about a result without the intervention of any other force.[^13]
[44] These tests are not in dispute on this appeal.
[45] The Appellant correctly notes that the Adjudicator did not consider the "but for" test. The Court of Appeal noted in Greenhalgh v. ING Halifax Insurance Co.[^14], the "but for" test can act as a useful screen," but in some cases, "the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile."
[46] Even if the "but for" test was met, it was necessary to go on to consider whether the chain of causation was broken when the Appellant left the cab and was subsequently assaulted, and whether this constituted an intervening cause which cannot be said to be in the ordinary course of use or operation of the automobile. On the facts of this case, the dominant feature of the impairments was found to be as a result of the assault. When the Appellant left the cab and was subsequently assaulted, the use and operation of the vehicle was found not to be a direct cause.
[47] While it is correct that there can be more than one direct cause of the injuries, at least one must arise from the use or operation of a motor vehicle which was found not to be established on these facts.
[48] The parties agree on the correct legal tests applicable to s. 3(1) of the Schedule. The arguments raised by the Appellant are questions about whether the facts and circumstances of this case satisfy the legal tests. These are questions of mixed fact and law which do not give rise to an error of law alone for the purposes of this appeal.
Error in Not Applying large and liberal Interpretation
[49] The Appellant further submits that the Tribunal erred in failing to consider decisions of Ontario courts and the Supreme Court of Canada, which have confirmed that a large and liberal interpretation must be given when interpreting the term "accident" and in applying the causation analysis.[^15] Nevertheless, a "broad and liberal interpretation" cannot effectively broaden the definition of "accident" to include indirect causes as was the case prior to the amendment of s.3(1) of the Schedule which narrowed the definition of "accident" to direct causes.
Conclusion
[50] In the result, the appeal is dismissed. In accordance with the agreement of the parties, there shall be no costs.
Backhouse J.
I agree _______________________________
ACJSC McWatt
I agree _______________________________
Sutherland J.
Released: April 12, 2022
CITATION: Sajid v. Certas, 2022 ONSC 2071
DIVISIONAL COURT FILE NO.: 22-082-00
DATE: 20220412
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJSC McWatt, Backhouse, Sutherland JJ.
BETWEEN:
MUHAMMAD SAJID
Appellant
– and –
CERTAS HOME AND AUTO INSURANCE COMPANY
Respondent
-and -
THE LICENCE APPEAL BOARD
Respondent
REASONS FOR JUDGMENT
Backhouse, J.
Released: April 12, 2022
[^1]: Statutory Accident Benefits Schedule – Effective September 1, 2010, O.Reg.34/10.
[^2]: Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sched.G.
[^3]: Statutory Accident Benefits Schedule, O. Reg. 34/10, ss. 5(1), 12(1), 14.
[^4]: North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143.
[^5]: Statutory Powers Procedure, RSO 1990, c.S22, s.15.
[^6]: Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div.Ct.) at para.28-29.
[^7]: Housen v. Nikolaisen, 2002 SCC 33.
[^8]: Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at para. 24-25.
[^9]: Amos v. Insurance, 1995 66 (SCC), [1995] 3 S.C.R. 405.
[^10]: North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (Div. Ct.).
[^11]: Chisholm v. Liberty Mutual Group (2002), 2002 45020 (ON CA), 60 O.R. (3d) 776 (C.A.), at para. 29.
[^12]: North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (Div.Ct.)
[^13]: Petrosoniak and Security National Insurance Co., (FSCO A98-000198, November 2, 1998), at p. 7; see also Wawanesa Mutual Insurance Company and Webb (FSCO Appeal P11-00015, July 18, 2012), at p. 6; P.H. v. Aviva Insurance Company of Canada, 2020 45493 (ON LAT).
[^14]: Greenhalgh v. ING Halifax Insurance Co. 2004 21045 (Ont. C.A.), at para. 12.
[^15]: Dittman v. Aviva Insurance Company of Canada, 2016 ONSC 6429, aff’d 2017 ONCA 617; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226.