Judicial Review Upholds Decision - Incident is an Accident - North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (CanLII)

May 07, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (CanLII)

Date of Decision: April 4, 2018
Heard Before: THORBURN J.

APPLICATION FOR JUDICIAL REVIEW

WAS IT AN ACCIDENT: the incident must directly cause the impairment; definition of accident; but for test; two-fold test includes purpose component and cause component; insurer did not raise issue of taxi use of car contravening policy at wither FSCO hearing or appeal; test of reasonableness; privative cause;

Mr. Samad insured his 2005 Dodge Caravan, with North Waterloo Farmers Mutual Insurance Company. He was insured for personal use, mainly to use his vehicle to get to and from work, the use of the vehicle as a taxi service was contrary to the insurance. Mr. Samad nonetheless used his vehicle as a taxi service on December 31, 2012.

On the evening he was injured Mr. Samad was driving passengers to an address. An argument ensued and Mr. Samad was punched in the face. He ordered the passengers out. Mr. Samad exited his car and went around to the passenger side to close the rear door. As he had his hand on the sliding door, he was shoved by one of the passengers, slipped on the ice and fell into the ditch.  He returned to his automobile and drove away.  He was seriously injured as a result of the fall. He called 911 because of the increased pain in his leg within minutes. Mr. Samad told the 911 operator he sustained injuries as a result of being pushed into the ditch.  The York Regional Police attended at the scene of the incident. PC Murray’s notes taken on the evening of the accident indicate the male passenger in the rear seat pushed Mr. Samad to the ground.  Mr. Hamad suffered injury to the shoulder leaning on the van door and the leg closest the door. The passenger was convicted of assault causing bodily harm and Mr. Samad received some compensation from the Criminal Injuries Compensation Board.

Mr. Samad sought benefits from North Waterloo pursuant to the SABs. North Waterloo denied his claim on the basis he had not been in an accident. The SABs define an accident as:

an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage.

On April 1, 2016, the Arbitrator found that Mr. Samad was involved in an “accident” as defined by subsection 3(1) of the SABS and was therefore entitled to SABS benefits.

North Waterloo appealed the decision. On March 2, 2017, the Director’s Delegate of the FSCO dismissed North Waterloo’s appeal of the Arbitrator’s Order. North Waterloo now seeks Judicial Review of the Director’s Delegate’s decision. North Waterloo claims the Director’s Delegate’s decision to uphold the Arbitrator’s Order was unreasonable in that,

1. Use of a personal vehicle for a prohibited purpose is not part of the ordinary “use or operation of an automobile” and the Insured was not covered for use of his vehicle as a taxi; and
2. The accident was not directly caused by the operation of a vehicle because the assault was an intervening event breaking the chain of causation, and the assault was the dominant reason for the injuries sustained.

Justice Thorburn reviewed the legislation and noted that since 1990, the system of motor vehicle accident compensation in Ontario has been premised on an "exchange of rights" principle. The legislature has restricted the right of innocent accident victims to maintain a tort action against the wrongdoer in exchange for enhanced no-fault accident benefits from their own insurer.

The Insurance Act, R.S.O. 1990, c. I.8 provides that,

268(1) Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule.

The SABs define the term "accident" as follows:

"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.

The incident must directly cause an impairment. The Courts have held that the language of the provision involves a consideration of two questions:

1. Did the incident arise out of the use or operation of an automobile? (The purpose component); and
2. Did such use or operation of an automobile directly cause the impairment? (The cause component).

What will amount to direct causation will depend on the circumstances. However, some of the following considerations may provide useful guidance in ascertaining whether or not it has been established in a given case:

1. The "but for" test can act as a useful screen;
2. 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; and
3. It may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called "direct".

There may be more than one direct cause; it is not necessary that all of the causes be part of the use or operation of the automobile.

THE CAUSE(S) OF MR. SAMAD’S INJURIES

Mr. Samad has not denied that the shove was part of the cause of his injuries.  On his application for compensation from the Criminal Injuries Compensation Board, Mr. Samad said he was pushed, causing him to lose his footing and fall down into the ditch. Mr. Samad also sued the passenger for damages “as a result of the injuries he sustained in the above-noted assault”. In his Application for Accident Benefits he told North Waterloo that: “I was physically assaulted by the passenger in my vehicle.”

At the Hearing before the Arbitrator, Mr. Samad agreed that he lost his footing after he was pushed on the ice and was injured due to his fall.  When asked what caused his injuries Mr. Samad said, “It’s like all of everything.”  He said the push while he was trying to close the door was only one of many factors.

At the FSCO Hearing, Mr. Samad also said his injuries were caused by a combination of factors. When asked if he felt that the assault was the main factor that caused his injuries, he replied, “It was one of the factors yes.”

The Arbitrator’s Decision

The FSCO Arbitrator correctly held that in accordance with the Court of Appeal decision in Greenhalgh v. ING Halifax Insurance Co., 2004 that there were two issues to be resolved:

1. Whether the incident arose out of the ordinary use or operation of an automobile (the purpose component); and
2. Whether the use or operation of the automobile directly caused the impairment (the causation component)?

The Arbitrator held that stopping vehicles to pick up and drop off passengers was part of the ordinary use and operation of an automobile.  (No one raised the issue of Mr. Samad’s use of his vehicle as a taxi.)  The Arbitrator concluded that the use or operation of the automobile was a direct cause of Mr. Samad’s impairment because:

1. the damage would not have occurred had he not been using his vehicle;
2. there can be more than one direct cause, and in this case the assault was only one direct cause of his injuries; and
3. “[T]he dominant feature is that aspect of the situation that most directly caused the injuries.  I am satisfied that in this case, there is not one dominant feature that is the cause of the [the insured’s] impairment…it is the entire series of events that started with the use or operation of the automobile and ended in an injury…I do not feel that you can isolate either the assault by one of the passengers or the slipping on the ice by the Applicant from the entire chain of events which was tied into the use and operation of the automobile.”

Appeal to the Director’s Delegate

North Waterloo appealed to the Director’s Delegate who upheld the Arbitrator’s decision. In his decision dated March 2, 2017, the Director’s Delegate held that the use of a vehicle as a taxi was an ordinary and well-known activity.  Again, no issue was raised by North Waterloo that this use contravened the terms of the insurance policy.

The Director’s Delegate agreed that the decision of the Arbitrator contained “very little analysis, simply finding that the intervening act of the assault by one of the passengers or slipping on the ice was insufficient to disentitle Mr. Samad”. He acknowledged that “in the vast majority of cases, assaults are seen as intervening acts, so the vehicle is only the location of the assault and not a direct cause of any impairment resulting from the assault.”  He cited Downer v. The Personal Insurance Company, and Martin v. 2064324 Ontario Inc., 2013 as assault cases where the vehicle was found to be merely the location for the assault. He noted that there can be more than one direct cause of an impairment and that in this case, “the use or operation of the van continued during the course of the incident, and that slipping on the ice while so engaged was not an intervening event. Mr. Samad not only planned to continue operating the van as he was closing the sliding van door, he did continue operating the van, despite his broken leg.  Further…slipping on ice while using or operating a vehicle is also part of the ordinary course of things.”

The Director’s Delegate further held that, “the Arbitrator was correct in finding that the use or operation of the vehicle was not simply incidental to the assault but contributed to the impairment. … Mr. Samad was still in the process of using or operating his vehicle when the combination of the assault and the slippery ice contributed to his slip and fall.” He concluded that, “There was no one dominant cause and the Arbitrator therefore correctly concluded that the use or operation of the automobile was a direct cause of the impairment.”

THE ISSUE

The issue on this Application for judicial review is whether the Director Delegate’s decision to uphold the Arbitrator’s decision was reasonable.

North Waterloo submits that the Director’s Delegate made reviewable errors in deciding that the Arbitrator:

1. applied the proper test to determine whether the incident arose out of the ordinary use or operation of an automobile; and in
2. his characterization and application of the causation test by;
   1. Incorrectly determining that the but-for requirement for causation had been met;
   2. Failing to properly apply the test in deciding whether the injuries resulted from an intervening act; and
   3. Failing to consider the dominant feature aspect of the direct causation test.
3. North Waterloo raises, for the first time, the use of the automobile as a taxi.

THE STANDARD OF REVIEW

The parties agreed at the hearing that the appropriate standard of review is reasonableness which is the appropriate standard of review on an application for judicial review of a Delegate’s decision on the interpretation of statutes regarding entitlement to no-fault motor vehicle accident benefits in Ontario. The Court has held that the standard of review was reasonableness when determining whether the insured was injured in an “accident” under subsection 2(1) of the SABS- Accidents on or After November 1, 1996, Ontario Regulation 403/96 for the following reasons.

In this case, the appropriate standard of review is reasonableness given the presence of a privative clause, the fact that adjudication is done using a special administrative regime in which the decision-maker has special expertise, and the legal issue to be addressed, namely whether Mr. Samad was in an “accident” as defined in the legislation.  Deference is warranted as the administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to the specific statutory context”. This means the decision must fall within the range of possible conclusions which are defensible in respect of the facts and the law.

ANALYSIS OF THE ISSUES

The statute and regulations are remedial and should be interpreted in a way that best enables the attainment of its objects.  The 1996 Schedule reflects a government policy decision.  The government decided to circumscribe the insurance industry’s liability to pay no-fault benefits by holding it responsible only for injuries directly caused by the use or operation of a car.

The central issue in this case is whether Mr. Samad was involved in an “accident” pursuant to the Schedule where the use or operation of an automobile directly caused the impairment.

Was the Arbitrator’s Interpretation of “Ordinary Use or Operation of a Vehicle” Reasonable?

The purpose component will be satisfied where the vehicle in question is being operated in a manner that is consistent with the ordinary use and well-known activities of vehicles.  The test is to be applied in a contextual manner.

North Waterloo submitted for the first time on this Application for Judicial Review, that the Arbitrator did not turn his mind to the Certificate of Insurance which shows that North Waterloo issued an OAP 1 which does not insure a taxi. North Waterloo submits that its use as a taxi cab was not within the “ordinary use of the vehicle” and that both the Arbitrator and Director’s Delegate erred in finding the purpose test was met.

The purpose of Judicial Review is not to re-hear the evidence but to determine whether the Director’s decision on the meaning of “accident” was reasonable.  A party cannot raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to adduce evidence at trial. 

Moreover, in analyzing the purpose component, the question is simply whether the incident arose from the “ordinary and well-known activities” to which vehicles are put.

The Arbitrator’s conclusion is consistent with the case law and the Director’s Delegate’s decision to uphold his conclusion on this issue was reasonable.

Was Direct Causation Established?

North Waterloo submits that the Arbitrator’s decision was not reasonable and the Arbitrator’s reasons on the issue of whether there was an intervening case (in this case, the assault) were inadequate.

The issue for this court is whether the decision as a whole, is reasonable.  A challenge to the sufficiency of reasons forms part of the reasonableness analysis; it is not a freestanding basis to quash a decision.  The reasons must be read together with the record and the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. Reasons should be read as a whole and not overly dissected or parsed and need not address all issues raised by the parties. 

For these reasons, we find that the Director’s Delegate’s decision to uphold the Arbitrator’s finding that the use or operation of the vehicle was a direct cause of impairment as there was an unbroken chain of events, was reasonable.

Was the Assault was the Dominant Cause of the Impairment?

North Waterloo submits that the Director Delegate’s decision to uphold the Arbitrator’s decision was unreasonable because the assault was the dominant cause of impairment.  North Waterloo notes that Mr. Samad never denied that an assault took place and that the basis for criminal charges, the application for compensation from the CICB and for his civil claim for damages was that he was assaulted.

In Chisholm, the Court of Appeal held that the dominant feature is that aspect of the situation that most directly caused the injuries.

The Arbitrator found Mr. Samad was still in the process of using or operating his vehicle when the combination of his hand on the door of the vehicle, the assault and the icy conditions under foot contributed to his slip and fall.  There was no evidence to suggest that one factor was the dominant factor in causing impairment. On the basis of the evidence adduced, it was reasonable for the Director’s Delegate to conclude that the Arbitrator’s decision that the assault was not the dominant factor resulting in his impairment should be upheld.

Contrary to the assertion by North Waterloo, the Arbitrator’s decision does not reverse the evidentiary onus as Mr. Samad adduced evidence as to the causes and the Arbitrator accepted that the assault was not the only direct cause of Mr. Samad’s injuries but it was rather, the combination of his hand on the vehicle, the ice below his feet and the shove that resulted in his injury.  This was a conclusion that was open to him to make.

CONCLUSION

The Arbitrator’s decision and the Director’s Delegate’s decision to uphold must fall within the range of possible conclusions which are defensible in respect of the facts and the law.  The Arbitrator had evidence before him upon which to reasonably conclude that the use or operation of the automobile was a direct cause of Mr. Samad’s impairment because:

1. The damage would not have occurred had he not been using and/or operating his vehicle;
2. His use and operation of the vehicle was a direct cause of Mr. Samad’s impairment; and
3. The assault is not the dominant feature that caused Mr. Samad’s impairment.

The Director’s Delegate’s decision that there was an entire series of events that started with the use or operation of the automobile and ended in an injury was reasonable and the result is within the range of acceptable outcomes, which are defensible in respect of the facts and law.

For these reasons, the Application for judicial review is dismissed.

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