SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-10-411958
DATE: 20120622

RE: MARIA BARROS

Plaintiff

AND:

SYED SHAH, MAHIR AHMAD, AMHERST NATIONAL LEASING INC., BLUE AND WHITE TAXI LTD., 1774612 ONTARIO INC., REGIONAL MUNICIPALITY OF PEEL, MARIA OLIVEIRA and XYZ CORPORATION

Defendants

BEFORE: JENNINGS J.

COUNSEL:
René Clonfero
for the Plaintiff

Harry Brown
for the Defendant Lombard
General Insurance Company of
Canada

HEARD AT TORONTO: May 31, 2012

SUPPLEMENTARY ENDORSEMENT

[ 1 ] When this motion came on for hearing on May 31, 2012, I advised counsel that I had no jurisdiction to hear it because:

a) The responding party Lombard General Insurance Company of Canada (“Lombard”) was not a party to this tort action,

b) The question to be determined in the declaratory order sought had already been put by the moving and responding parties before an arbitrator at FSCO, who had jurisdiction to hear the matter and

c) The moving party had not brought an action against Lombard for payment of SABs.

[ 2 ] I rejected the submission of both counsel that they could confer jurisdiction upon me by their consent that I hear the matter.

[ 3 ] Counsel then filed a consent to an order addressing the jurisdictional issues that I raised resulting in my endorsement of May 31, 2012, written on the back of the motion record. As a result of that order I accepted jurisdiction, heard the motion, and reserved my decision. My decision, and the reasons for it, now follow.

[ 4 ] The plaintiff moves for an order under rule 21.01 declaring that the plaintiff’s injuries were directly caused by an “accident” as defined by s.2(1) of the Statutory Accident Benefits Schedule, that is, an incident in which the use or operation of a motor vehicle directly causes impairment.

facts

[ 5 ] Pursuant to a contract with the defendant Municipality of Peel (“Peel”) to provide wheelchair accessible transportation services, the defendant Blue and White Taxi Limited (“Blue and White”) dispatched a specially equipped taxi to the defendant Oliveira’s house to deliver her to the YMCA.

[ 6 ] The taxi driver was the defendant Shah. He parked his taxi on the road at the foot of the driveway to Ms. Oliveira’s house, turned off the motor and lowered the ramp to enable Ms. Oliveira’s motorized scooter to drive into the taxi. He then went up the drive to notify Ms. Oliveira of his arrival.

[ 7 ] The plaintiff is Ms. Oliveira’s mother. She was at her daughter’s home so that she could accompany her daughter on her trip to the YMCA. In the absence of her caregiver, Ms. Oliveira asked Shah to fetch her motorized scooter from the garage where it was stored. In the course of Shah’s attempts to position the scooter at the bottom of the steps leading to the front door of Ms. Oliveira’s house, the plaintiff, her mother either tripped over, or was knocked over by, the scooter. She fell to the driveway and was injured at some distance from where the taxi was parked.

[ 8 ] Under the contract between Blue and White and Peel, Blue and White was to carry both an automobile insurance policy and a general liability insurance policy.

[ 9 ] Lombard is the automobile insurer. It rejected the plaintiff’s claim for SABs on the ground that her injuries were not directly caused by the use or the operation of a motor vehicle.

[ 10 ] Neither the plaintiff nor Lombard took the position that the motor scooter was an automobile, or insured under any automobile policy.

analysis

[ 11 ] For s.2(1) of SABS to apply, two questions must be answered:

i) Did the incident arise out of the use or operation of an automobile?

ii) Did that use or operation directly cause the impairment?

(see Greenhalgh v. ING Halifax Insurance Co. 2004 21845 ).

[ 12 ] It is required that the use or operation of the automobile not be simply “a cause” of the injuries, but a direct cause.

Chisholm Reliability v. Liberty Mutual Group, 2002 45020 (ON CA) , [2002] 60 O.R. 3d 776 at para. 26 (OCA)

[ 13 ] At the time of the accident the Blue and White taxi was being used for its intended purpose. The issue is causation.

[ 14 ] The law on the interpretation of s.2(1) was recently and thoroughly canvassed in a decision released May 29, 2012 by Arbitrator Scott Demsem, in TTC Insurance Company Limited v. Lombard Canada heard March 21, 2011. The facts in that case are very similar to those in the case before me. In TTC Insurance an injury occurred when the plaintiff was being pushed in her wheelchair towards a parked Wheel Trans van, by the van’s operator. Arbitrator Densem found that at the time of the accident the operator was performing the escort duties of his job function. He was not performing duties connected with the use of the Wheel Trans vehicle.

[ 15 ] In this case, the Blue and White driver was obliged by his employer’s contract to move prospective passengers to the vehicle. That, however, was a separate and distinct function from his duties regarding the proper operation of the taxi.

[ 16 ] If the injuries were caused by any negligence of Shah, it was his negligence in attempting to manipulate the scooter into position in order to allow Ms. Oliveira to mount it. As in the case before arbitrator Densem any tortious conduct was not committed in the use or operation of the taxi. I find the analysis of arbitrator Densem to be persuasive. The injuries were caused by an intervening act in the chain of causation.

[ 17 ] Accordingly, the user operation of the taxi was not a direct cause of the injuries sustained by the plaintiff.

[ 18 ] The motion for a declaratory order to the contrary must be dismissed. No costs being demanded there will be no order for costs.

JENNINGS J.

Date: June 22, 2012