CITATION: Jiang v. The Co-operators General Insurance Company, 2024 ONSC 1225
DIVISIONAL COURT FILE NO. 335/23
DATE: 20240301
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson, Jensen JJ.
B E T W E E N:
ZIHUA JIANG
Applicant
(Appellant)
- and -
THE CO-OPERATORS GENERAL INSURANCE COMPANY
Respondent
(Respondent in Appeal)
Aline Avanessy, for Appellant
Jamie Pollack and Serena Gohal, for Respondent
HEARD at Toronto: February 20, 2024
Backhouse J.
REASONS FOR DECISION
Overview
[1] Ms. Jiang (the “appellant”) appeals from two decisions of adjudicator Tavlin Kaur of the Licence Appeal Tribunal (“the Tribunal”) dated February 6, 2023 (the “Preliminary Decision) and May 1, 2023 (the “Reconsideration Decision”).
[2] On June 9, 2019, the appellant was assaulted by her husband while she was driving. She alleges that he pulled her hair and smashed her head into the driver’s side window; she lost control of her vehicle, hitting the curb during the course of which she struck her head against the roof of the vehicle approximately two times.
[3] The appellant submits that as a direct result of the accident, she sustained a traumatic brain injury with progression to post-concussion syndrome, headaches, blurry vision, dizziness, loss of balance and hearing impairments. The respondent raised a preliminary issue that the appellant was not involved in an automobile accident as statutorily defined by section 3(1) of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”), enacted under the Insurance Act, R.S.O. 1990, c. I.8.
[4] The adjudicator found that the appellant did not meet the definition of “accident” for two reasons:
(1) the assault was an intervening event which broke the chain of events; and
(2) the dominant feature of her alleged injuries was the assault, and the use or operation of the vehicle was ancillary to the assault.
[5] I would allow the appeal in part. I would dismiss the appeal to the extent that the appellant claims entitlement to accident benefits based on injuries caused by the assault. The adjudicator’s finding that the assault was an intervening act that led to her injuries in the first phase of the incident and not the use or operation of the automobile is a finding of fact and law and is not an extricable question of law in this case over which this court has jurisdiction. That part of the appeal is dismissed.
[6] With respect to claim for entitlement to accident benefits based on injuries allegedly caused by the loss of control of the automobile, the adjudicator stated the causation test correctly, but, she did not follow the principles she enunciated:
(1) in applying the “intervening cause” part of the causation test, she ignored that there were two phases to the incident—injuries allegedly caused by an assault and injuries allegedly arising from the subsequent loss of control of the vehicle. She failed to give reasons for why the road accident was also not a direct cause of the injuries; and
(2) in applying the “dominant feature” part of the causation test to the incident, she ignored that there were two phases with separate dominant features.
[7] The adjudicator’s finding that the intervening assault broke the chain of causation and therefore the appellant’s alleged injuries from the loss of control of the vehicle did not need to be considered was an extricable error of law; the adjudicator erred in her characterization of the legal standard for causation. This court has jurisdiction over such errors of law. The appellant’s alleged injuries after losing control of the automobile and striking her head may have been directly caused by the use or operation of an automobile and meet the definition of “an accident” as defined in Schedule 1. The issue is a genuine issue requiring a hearing.
[8] I would allow the appeal to the extent that the appellant claims entitlement to accident benefits sustained as a result of her loss of control of her vehicle following the assault. The issues of whether and to what extent the appellant’s injuries were sustained as a result of her loss of control of her vehicle following the assault remain to be determined at a hearing.
The Decisions
Preliminary Decision
[9] The appellant applied for benefits under the SABS. It was the appellant’s position at the Tribunal that she sustained significant injuries as a direct result of the accident. The sole issue before the Tribunal was whether the appellant was involved in an “accident” as statutorily defined. As the adjudicator noted in the February 6, 2023 Preliminary Decision, an “accident” is defined in s. 3(1) of the SABS. That definition reads:
‘accident’ means 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;
[10] The adjudicator applied a two-part test to determine whether an incident is an “accident”, citing three decisions by the Court of Appeal for Ontario: Chisholm, Greenhalgh, and Caughy.[^1] The adjudicator concluded that the appellant met the “purpose test”, namely that the incident arose out of the ordinary and well-known activities for which automobiles are put.
[11] The adjudicator found, however, that the appellant did not meet the required “causation test” in that: (a) the assault “was the independent intervening event which broke the chain of events which started with the applicant driving up on Kennedy Road and ended with her suffering the alleged injuries when she hit the curb”[^2] and (b) though the appellant did not provide submissions on the “dominant feature” of her alleged injuries, the “dominant feature” was the assault, with the use or operation of the vehicle being “ancillary to the assault.”[^3] Therefore, the adjudicator concluded that the appellant was not involved in an “accident” as defined.
[12] Notwithstanding the respondent’s submissions, the adjudicator found it unnecessary to make findings around the credibility of the appellant in relation to the injury.[^4]
Reconsideration Decision
[13] The appellant requested reconsideration of the Preliminary Decision, which the adjudicator dismissed in the Reconsideration Decision. The adjudicator found that she herself had not incorrectly applied the causation test in the Preliminary Decision and that the appellant had not provided particulars as to what errors of law and fact the adjudicator had made. The adjudicator also found that the appellant was trying to raise a new argument regarding the dominant feature test that the appellant did not address in her preliminary submissions.
Position of the Parties
Appellant
[14] The appellant submits that as the assailant smashed her head against the driver’s side window, the vehicle was the instrument of injury. She submits that the adjudicator’s failure to consider the use of the vehicle as an instrument of injury led her to characterize the assault as an intervening act which is a palpable and overriding misapprehension of evidence. The appellant asserts that there could be more than one cause of injury--that she would not have struck her head against the inside of the vehicle with such force had she not been driving. She also relies on the injuries caused by her loss of control following the assault as constituting an “accident”.
Respondent
[15] The respondent accepts that an incident took place wherein the appellant suffered injuries as a result of an assault while driving an automobile but denies that she suffered injuries from a subsequent loss of control of her vehicle. It relies on the intervening act of the assault breaking the chain of causation. It also relies on what it characterizes as inconsistent statements from the appellant in her medical records, her examination under oath and an engineering report it obtained.
[16] The respondent submits that the appellant does not identify any errors of law and raises only questions of fact and therefore the appeal must be dismissed.
Issues
[17] Is an appeal available to the appellant?
[18] Did the adjudicator err in law with respect to the finding that the appellant was not involved in an “accident”?
Court’s Jurisdiction
[19] Under the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, ss. 11(1) and 11(6), the Divisional Court has jurisdiction to hear this appeal on a question of law only.
Standard of Review
[20] The standard of review for statutory appeals is governed by Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness: Housen, at para. 8.
[21] The Supreme Court of Canada wrote in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (S.C.C.) at paragraph 54:
When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker's determination or to substitute its own view: Dunsmuir, at para. 50. While it should take the administrative decision maker's reasoning into account—and indeed, it may find that reasoning persuasive and adopt it—the reviewing court is ultimately empowered to come to its own conclusions on the question.
[22] The Supreme Court instructs us that the tribunal is presumed to know the law with which they work, day in and day out[^5] and an appellate court must take care not to substitute its own view of the facts for that of the trial judge or in this case, the Tribunal.[^6]
Analysis
Issue 1: Is an appeal available to the appellant?
[23] The respondent submits that the within appeal is an appeal of fact or mixed fact and law in regard to which this court has no jurisdiction.
[24] To the extent that the appellant relies on the adjudicator making palpable and overriding errors, misapprehending the evidence or raises issues of fact or mixed fact and law, this court has no jurisdiction.
[25] Whether the assault on the appellant should be considered an incident in which the use or operation of an automobile directly caused injury is not a question of law in this case. The appellant’s argument is that the adjudicator reached the wrong conclusion considering all the evidence, which is not a question of law but a question of mixed fact and law over which this court has no jurisdiction.
[26] However, there are two issues raised in the appellant’s appeal which can be properly characterized as errors of law: 1)whether the adjudicator erred in finding that the intervening event of the assault broke the chain of events to a second event of the loss of control of the vehicle; and 2) whether the adjudicator erred in failing to consider that there could be two dominant features of the incident. As explained below, I have concluded that the erroneous findings in regard to these two issues caused the adjudicator not to consider whether the appellant’s alleged injuries as a result of the loss of control of the vehicle was an “accident”. It follows that the adjudicator made an error of law in her characterization of the legal standard for causation in regard to which this court has jurisdiction. (Housen, supra at para.31).
Issue 2: Did the adjudicator err in law with respect to the finding that the appellant was not involved in an “accident”?
[27] The adjudicator stated the causation test correctly in the Preliminary Decision at paragraph 16:
[16] Within the causation test, a three-point analysis has been set out by the Ontario Court of Appeal [Chisholm and Greenhalgh]:
i. whether the incident would have occurred “but for” the use or operation of the automobile;
ii. whether there was an intervening act that cannot be said to be part of the ordinary course of the use or operation of the automobile; and
iii. whether the use or operation of the automobile was the dominant feature.
[28] However, the adjudicator then went on to make the following errors in her characterization of the legal standard of causation.
Error in Finding Intervening Cause broke chain of events to a second event which could meet the definition of “accident”
[29] When the adjudicator considered whether there was an intervening cause, she found that the assault which she refers to in paragraph 16 as “the later intervening act”, broke the chain of events that led to the appellant’s injuries. She concluded that the appellant’s injuries were therefore not a consequence directly caused by the use or operation of the automobile.
[30] It was open to the adjudicator in this case to find that the appellant being injured by her assailant smashing her head into the driver’s side window did not meet the definition of “accident” although the automobile was the situs of the assault and could be said to be the tool or instrument that caused the injury. (Downer v. Personal Insurance Co., 2012 ONCA 302, 2012 CarswellOnt 5637 (“Downer”)). It is clear that it is not enough to show that an automobile was the location of an injury inflicted by an assault or that the automobile was somehow involved in the incident giving rise to the injury. The use or operation of the automobile must have directly caused the injury (Downer, at para. 39) and been the dominant feature (Chisholm, at paras. 32-34).
[31] However, the adjudicator erred in law in concluding that “the later intervening act” of the assault broke the chain of events to a second event-- the appellant’s alleged injuries arising from the subsequent loss of control of the vehicle which could meet the definition of “accident”. The adjudicator gave no reasons for her bald conclusion and cited no authority for finding that the assault broke the chain of events to an ensuing road accident where injuries might have arisen.
[32] The respondent cites Chisholm[^7] as authority for the proposition that where an intervening act falls outside the normal risk associated with the use and operation of a car, it will break the chain of causation. However, Laskin J.A. goes on to state in the following paragraph:
[31]…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.
[33] As noted below, it was not alleged in Chisholm that there were injuries from anything other than the assault.
[34] In this case there was no question that the assault occurred in the vehicle and initiated a chain of events, all of which occurred within the vehicle and within moments of one another. The appellant’s case before the adjudicator was that when she tried to escape the assailant’s grip, her head struck the car window. Immediately thereafter, she lost control of the automobile, resulting in her head striking the roof and the car hitting the curb. (Paragraph 17, Preliminary Decision). This case was not a case such as Greenhalgh[^8] where the use of the car had ended without injuries being suffered; in that case, there was a temporal distance between the end of the use of the car and the intervening act of falling through the ice causing the injuries. In Greenhalgh the use or operation of the automobile could not be said to have directly caused the injuries.
[35] At paragraph 23 of the Preliminary Issue Decision, the adjudicator stated:
…The jurisprudence regarding assaults has been very clear that these are not considered to be accidents. Moreover, I find Chisholm and Kumar to be persuasive. The use or operation of the automobile was not the direct cause of her injuries.
[36] In Chisholm, the insured was driving when an unknown assailant fired gun shots at the vehicle, wounding him in the neck, shoulder and legs, 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 consequence. In these circumstances, Laskin, J.A. found the gun shots from an unknown assailant to be an intervening act that were the only direct cause of his impairment.[^9]
[37] Similarly in Kumar, the insured’s injuries were caused by an assailant who struck him on the side of his head with a hard object when he was operating his taxicab. The arbitrator found that the insured sustained no further injuries when the vehicle subsequently rolled into the ditch.[^10] The respondent alleges that this arbitration case is factually very similar to the case at hand. However, the adjudicator in this case made no finding as was made in Kumar that the appellant did not injure herself in the way she alleged after losing control of the vehicle and it cannot be assumed that this is what she concluded.
[38] Neither of these cases relied upon by the adjudicator offer assistance for a situation where one phase of an incident is an intervening assault that is not an “accident” while a separate phase of the incident may qualify as an “accident” because a person suffers injuries that are directly related to the use or operation of a motor vehicle.
[39] In Downer, supra, the court found that a physical assault on the plaintiff did not constitute an accident. However, after being assaulted the plaintiff managed to escape by putting his car in gear and driving away. The plaintiff claimed psychological injuries associated with his belief that he may have run over his assailants while he was trying to get away and that this may have been caused by “an accident” as defined in the SABS. The court found that psychological impairment from such an accident could be “a direct consequence of the use or operation of his motor vehicle.[^11]
[40] The Ontario Court of Appeal in Downer found this issue to be a genuine issue requiring a trial. What is important for the purposes of the case at hand is that the court did not find that an intervening act of an assault broke the chain of events such that the insured’s subsequent injuries when trying to escape were therefore not an “accident”.
[41] The adjudicator erred in law in failing to consider whether an assault and an accident co-existed and whether the use and operation of an automobile was a direct cause of the appellant’s alleged injuries from striking her head against the roof after losing control of the vehicle.
The adjudicator misapplied “dominant feature”
[42] As noted above, the adjudicator found that the dominant feature of the appellant’s alleged injuries was the assault, with the use or operation of the vehicle being ancillary to the assault.
[43] As Laskin J.A. explained in Chisholm in regard to “dominant feature”, quoting Iacobucci J. in Heredi v. Fensom, 2002 SCC 50, “the phrase requires that the presence of a motor vehicle be the dominant feature, or constitute the true nature, of the claim” and not be ancillary to it.
[44] The adjudicator failed to consider that there can be two separate phases of an incident: here, phase one--an assault that does not meet the definition of an “accident” because the dominant feature of the injuries which resulted from the smashing of the appellant’s head against the window was an assault; and phase two--injuries suffered from the loss of control of the automobile and therefore an “accident”.
[45] The adjudicator found in the Reconsideration Decision that the appellant made no submissions about the dominant feature test at the hearing and was attempting to introduce a new argument that was not previously raised. Nevertheless, the respondent made submissions about the dominant feature test and the adjudicator was required to apply the correct legal test.
[46] In concluding that the use and operation of an automobile was not the dominant feature of the appellant’s alleged injuries, the adjudicator stated at paragraph 28 of the Preliminary Decision that she was persuaded by the reasoning in L.L.B.[^12] where the Tribunal found that punches from the assailant were the aspect of the situation that most directly caused the applicant’s injuries and were therefore clearly the dominant feature in respect of the causation analysis. However, in L.L.B., the adjudicator found that there were two separate phases of the incident, first there was an “accident” (accepted by the insurer and in regard to which the insured received benefits) and second, an assault that did not meet the definition of “accident” because its dominant and only feature was that of an assault.[^13]
[47] The respondent concedes in paragraph 76 of its factum that if the appellant was injured after losing control of the automobile and in the course of mounting the curb, this could result in an accident but argued that she did not injure herself in this way.
[48] It could be argued that the adjudicator indirectly recognized that an assault and an accident could co-exist. In Paragraph 20 of the Preliminary Decision, she states:
The applicant acknowledged that an assault committed on or by a driver or occupant of an automobile is generally not an “accident” as defined in the Schedule unless the automobile was the instrument of the injury or the assault caused an automobile to lose control resulting in injury to the victim (e.g., violent swerving, a crash or collision).
[49] However, despite noting that the respondent submitted that the appellant’s evidence was not reliable and should not be relied upon, the adjudicator declined to make any findings in regard to the appellant’s credibility. Having made no credibility findings, it cannot be assumed that the adjudicator concluded that the appellant did not injure herself in the way that she alleges after her loss of control of the vehicle. As a result, the issues of whether and to what extent the appellant’s injuries were sustained as a result of her loss of control of her vehicle following the assault remain to be determined at a hearing. The adjudicator erred in law in failing to consider the two phases of the incident.
Conclusion
[50] I would dismiss the appeal to the extent that the appellant claims entitlement to accident benefits based on injuries caused by the assault (where her head was smashed into the driver’s side window). I would allow the appeal to the extent that the appellant claims entitlement to accident benefits for injuries sustained as a result of her loss of control of her vehicle following the assault which issue requires a hearing.
Costs
[51] The appellant, as the successful party, is entitled to her costs in the agreed upon amount of $5,000.
Backhouse J.
I agree _____________________________
Matheson J.
I agree _____________________________
Jensen J.
Released: March 1, 2024
CITATION: 1395804 Ontario Ltd. v. Ng, 2024 ONSC 1225
DIVISIONAL COURT FILE NO.: DC-23-2816
DATE: 20240301
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson, Jenson JJ.
B E T W E E N:
ZIHUA JIANG
Applicant
(Appellant)
- and -
THE CO-OPERATORS GENERAL INSURANCE COMPANY
Respondent
(Respondent in Appeal)
REASONS FOR DECISION
Backhouse J.
Released: March 1, 2024
[^1]: Chisholm v. Liberty Mutual Group (“Chisholm”) (2002), 2002 45020 (ON CA), 60 O.R. (3d) 776 (C.A.); Greenhalgh v. ING Halifax Insurance Co.(“Greenhalgh”) (2004), 2004 21045 (ON CA), 72 O.R. (3d) 338 (C.A.); Economical Mutual Insurance Co. v. Caughy, 2016 ONCA 226, 130 O.R. (3d) 508.
[^2]: Preliminary Decision, at para. 24 [A39].
[^3]: Preliminary Decision, at para. 28 [A39-40].
[^4]: Preliminary Decision, at para. 29 [A40].
[^5]: R. v. Burns, 1994 127 (SCC), [1994], 1 S.C.R. 656, at p. 664.
[^6]: F.H. v McDougall, 2008 SCC 53, at para.54.
[^7]: Chisholm, supra at para.30.
[^8]: Greenhalgh, supra.
[^9]: Chisholm, supra, at paras. 26, 29.
[^10]: Kumar, supra.
[^11]: Downer, at para. 50.
[^12]: L.L.B. v. Intact Insurance Company, 2020 CarswellOnt 17783 (“L.L.B.”).
[^13]: L.L.B., at paras. 18-20.