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Insurance - Auto - Causation. Travis v. Aviva Insurance Company
In Travis v. Aviva Insurance Company (Div Court, 2024) the Divisional Court dismisses a SABS LAT appeal from a novel fact situation, here where the claimant was a fireman responding after-the-fact to a van-caused terrorist attack with multiple fatalities. The central issues were whether the claimant was involved in an 'accident':[2] Mr. Travis appeals the two decisions of the LAT pursuant to s. 11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12. The appeals relate to the interpretation of the word “accident” as set forth in the Statutory Accidence Benefits Schedule – effective September 1, 2010, O Reg 34/10, s. 3 (1) (the “SABS”).
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[6] After the van attack of April 23, 2018 Mr. Travis eventually stopped working in September 2018 and began to receive psychological therapy. He has been diagnosed with major depressive disorder and post-traumatic stress disorder.
[7] Mr. Travis initially made a claim through the Workplace Safety Insurance Board (the “WSIB”). Subsequent to his claim, the WSIB advised Mr. Travis that he should return to a modified duty position. Mr. Travis disagreed that he was capable of a gradual return to work and therefore decided to de-elect from the WSIB regime. Mr. Travis elected out of the WSIB regime to claim under the SABS. He was not left without recourse for his disability caused by the carnage he witnessed on April 23, 2018.
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The Decision of the LAT
[10] Adjudicator Paluch framed the issue before him as whether Mr. Travis was involved in an “accident” pursuant to s. 3(1) of the SABS. To determine whether or not Mr. Travis was involved in an accident, Adjudicator Paluch referred to Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (C.A.) (Chisholm) and Greenhalgh v. ING Halifax Insurance Co (2004), 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338 (C.A.)[1] (Greenhalgh) as authority for what is often referred to as a two-part (purpose and causation) test to interpret the statutory definition of accident.
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Legal Principles
[19] In determining whether there has been an accident within the meaning of s. 3(1) of the SABS, the Court of Appeal in Chisholm and in Greenhalgh has set forth two questions which must be considered. Specifically, those questions are:1. Did the incident arise out of the use or operation of an automobile (the purpose test); and
2. Did such use or operation of an automobile directly cause the impairment (the causation test). [20] It is important to the determination of whether there has been an accident within the meaning of s. 3(1) of the SABS to accept that if the “but for” test is met this does not conclusively establish legal causation: see Greenhalgh at para. 37. The legal entitlement to claim accident benefits requires not just that the use or operation of a vehicle (in this case either the rental van or the fire truck) be a cause of the injuries, but that it be a direct cause: see Chisholm, at paras. 25-26.
[21] In Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107, the Divisional Court dealt with an appeal by the insurer where the LAT had determined that the insured’s claim arose as a direct result of an accident. The specific accident in question arose out of a situation where the insured was walking towards a stationary ride share Lyft car when the insured slipped and fell on ice in the driveway of her parents’ home and was severely injured.
[22] When the matter came before the Divisional Court, Ryan Bell J. at paras. 15 and 16 stated:[15] In this case, the use or operation of the Lyft car cannot be said to be a direct cause of Ms. Porter’s injuries. More is required than establishing that the car brought the applicant to the location of the incident (see Greenhalgh, at para. 37; Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92), and more is required than the car being the reason why Ms. Porter was at the location where the incident occurred. The location of the car in the driveway could be said to have led to Ms. Porter’s injuries – and in that limited sense, her injuries were “as a result of” or connected to the use and operation of the car. But the use and operation of the car did not directly cause her injuries. [Emphasis added]
[16] While it may be said that but for where the Lyft car parked in the driveway, Ms. Porter would not have slipped on the ice and fallen, this is insufficient to establish direct causation. The dominant factor that physically caused Ms. Porter’s injuries was the icy, snow-covered driveway. The use or operation of the Lyft car was “at best ancillary”: Chisholm, at para. 34. ....
Did the Adjudicator err in law in his determination that the Appellant was not involved in an accident? Did the adjudicator err in law in his application of the causation and but for test?
[23] The Appellant argues that the adjudicator erred in law by adding irrelevant factors when interpreting the definition of “accident”. The appellant argues that he was involved in an accident as a result of the use or operation of one or other of the rental van and the firetruck. Adjudicator Paluch applied the test for an accident to both of these situations and concluded that the Appellant was not involved in an accident in either case. In our view Adjudicator Paluch made no error of law in reaching that conclusion. In coming to the conclusions that he did, Adjudicator Paluch made findings of fact over which this court on an appeal has no jurisdiction.
[24] In order for someone to claim entitlement to a statutory accident benefit there must first be an accident involving the insured person. To establish that an insured person has been involved in an accident requires the claimant to satisfy the “purpose” and “causation” tests, as set forth by the Ontario Court of Appeal in Greenhalgh. As a matter of law the insured person must affirmatively answer the following questions set forth by Greenhalgh at para 16 and 36:1) Did the accident result from the ordinary and well-known activities to which automobiles are put? This is often referred to as the “purpose test”;
2) Was the use or operation of the vehicle a cause of the injuries?
3) If the use or operation of the vehicle was the cause of the injuries, 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 that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries? Questions 2 and 3 are often referred to as the causation test. ....
[28] Having made a factual determination that the fire truck did not cause the Appellant’s injuries the Adjudicator was not required to move to the second part of the Greenhalgh analysis. The Adjudicator was correct in his analysis when he stated at para 68 of his Reasons as follows:In this case, the use or operation of the fire truck cannot be said to be a direct cause of the applicant’s injuries. The fire truck was merely in the vicinity of the aftermath of the accident. More is required than establishing that the fire truck brought the applicant to the location of the incident. The location of the truck on the streets could be said to have led to the applicant’s injuries – and in that limited sense, his injuries were “as a result of” or connected to the use and operation of the fire truck. But the use and operation of the fire truck did not directly cause her (sic) injuries.” [29] A similar issue came before the Divisional Court in Francia v Licence Appeal Tribunal, 2021 ONSC 7847, 18 C.C.L.I (6th) 330 (Div. Ct.). In her reasons for the Court at para 18, Kristjansen J. held that a finding of fact that the use or operation of a vehicle was not a direct cause of a claimant’s impairments was sufficient to satisfy the Greenhalgh test and a finding not reviewable on appeal. The following conclusion of Kristjansen J. is equally applicable to the facts before this court that “the incident, as it involved Mr Francia (as opposed to the drivers) did not result from the ordinary and well known activities to which automobiles are put.”
[30] While the Adjudicator concluded that the fire truck did not cause the Appellant’s injuries, he nonetheless moved to the second part of the Greenhalgh causation test. In this regard the Appellant argues that the “intervening act” consideration is a mandatory part of the analysis and that the “dominant feature” consideration is optional. We disagree. The Adjudicator was correct in his application of the “dominant feature” analysis when he determined that the Appellant’s injuries were not directly caused by the use or operation of a motor vehicle.
[31] In our view, the Reasons of Ryan Bell J. in Porter at para 15 and 16 quoted above are analogous to the facts before this court. The fire truck was the means by which Mr. Travis was brought to the scene of the indescribable tragedy that had unfolded immediately before his arrival. The cause of Mr. Travis’ undisputed injuries was not the fire truck. Rather, the cause of Mr. Travis’ injuries were solely the result of the criminal conduct of John Doe.
[32] The purpose of the SABS is to provide a means by which an injured party may seek entitlement to benefits where it can be established that the person seeking entitlement has been involved in an accident, defined as an incident in which the use or operation of an automobile directly causes an impairment.[2] To extend entitlement to Statutory Accident Benefits where it cannot be established that someone has been involved in an accident would be to defeat the purpose for which the SABS envisaged by the Legislature. . Jiang v. The Co-operators General Insurance Company
In Jiang v. The Co-operators General Insurance Company (Div Court, 2024) the Divisional Court considered two appeals (one a reconsideration) of LAT SABS rulings, here in the unusual context of a driver being assaulted by a passenger.
Here the court considers the issue of causation, insofar as the incident attracts SABS application and compensation:[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.
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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. ....
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. . Abdi v. TD General Insurance Company
In Abdi v. TD General Insurance Company (Div Court, 2023) the Divisional Court considered an auto insurance SABS LAT appeal on the issue of 'catastrophic impairment'. In these quotes the court considers issues of causation, touching upon pre- and subsequently-developed post-injury impairments:CAUSATION
[27] I will now turn to the issue of causation. The Appellant argues that the Adjudicator erred by applying an unduly restrictive test. In para. 69 of the Decision, the Adjudicator stated that: “…the GOS-E must be based on TBI injuries alone”. The Appellant argues that the word “alone” is not found in the GOS-E Guidelines or the legislation. The Appellant submits that he need only prove the TBI was a necessary (“but for”) cause of the impairment. He states that the Adjudicator erred in discounting psychological and physical disabilities that were not solely caused by the TBI.
[28] While the Adjudicator did refer to “TBI injuries alone”, this statement must be understood as it appears in the context of the decision as a whole. In paras. 32 and 37, the Adjudicator explained what she meant when she said that the GOS-E must reflect “only the effects of the brain injury”:[32] According to the GOS-E Guides, the disability must be a result of the TBI and not other psychological or physical injuries. The GOS-E Guides state that the injury is an event that has occurred at a particular time, but not all changes that have taken place following the event will be due to the injury. Thus, if a patient is capable of performing the activity but does not do it for some reason, they are not considered disabled…
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[37] I find that to determine catastrophic impairment under the GOS-E, the Schedule requires the assessor to assign a GOS-E that reflects only the effects of the brain injury. Otherwise, the Schedule would not incorporate the GOS-E Guidelines. Nor would the Schedule refer to "brain injury," but would have retained the wording "brain impairment" that was in place prior to the June 1, 2016 amendments. Further, in keeping with the Schedule's purpose of consumer protection, psychological injury is already considered together with other injuries under s.3.1(1)8 and on its own under s.3.1(1)7 of the Schedule. There are TBIs that, because of what part of the brain was injured and due to the severity of the injury, cause psychological impairments or physical impairments. In those cases, the disability resulting from those impairments will be considered in the GOS-E. If the effect of other types of physical or psychological injury cannot be parsed out from the effects of the TBI, then in accordance with the GOS-E Guidelines, 19 they are to be considered in administering the GOS-E. Otherwise, for the reasons given above, I agree with the respondent that psychological and physical impairments that are not related to or caused by the TBI are not considered in the GOS-E. [Emphasis added.] [29] It is apparent from these passages that the Adjudicator did not restrict her consideration to impairments exclusively or solely attributable to the TBI. She contemplated that physical and psychological impairments caused by or related to the TBI were to be considered in administering the GOS-E. While she did not refer to the “but for” test by name (see Pucci v. Wawanesa Mutual Insurance Company, 2019 ONSC 1706, aff’d 2020 ONCA 265), her approach effectively incorporated the essential elements of that test. If an injury (impairment) was related to the TBI and could not be parsed out from the effects of the TBI, it was to be considered.
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