May 5, 2014

SABS Update – Location, Location, Location: The Arbitrator’s Finding of an “Incident” was “No Accident”.

For the week of May 5 to May 9, 2014

Clark v TTC Insurance Company Ltd., [2014] Appeal P13-00012

Clark, the applicant/appellant, fought with a fellow passenger on a TTC bus on October 23, 2009. The bus was over-crowded and the passenger jostled Clark. The unwanted physical conflicted instigated an unfriendly verbal exchange. The conflict escalated until Clark stumbled and fell. After falling, Clark claimed that his toe came into physical contact with the under-side of the bus seat. He alleged the bus was moving when he fell and claimed the stubbing of his toe led to amputation of his lower leg several months later. Video surveillance and the tesitmony of witnesses suggested the vehicle was not moving.

DECISION

The arbitrator held Clark was not injured as a result of an “accident”; namely “an incident in which the use or operation of an automobile directly cause an impairment.” The use or operation of the vehicle was not a cause of the injuries because the bus “merely provided the opportunity and the location for a fight between Mr. Clark and the other passenger.” An assault in a vehicle does not fit within the definition of “accident” where the vehicle plays no more than a passive role.

The Arbitrator’s decision was upheld on appeal on the basis of two Ontario Court of Appeal decisions. Both were assault cases where the vehicle was found to be merely the location for the assault, with a limited exception:

In Downer v. The Personal Insurance Company, (2012) O.N.C.A. 302 (CanLII), the Plaintiff was assaulted by unidentified assailants while sorting his money in his car at a gas station. While the assault was not considered a normal incident of risk created by the use or operation of the car, the plaintiff’s alleged psychological injuries arising from his belief he may have run over one of his assailants while fleeing, may have been caused by an “accident.”
In Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 O.N.C.A. 19 (CanLII) , the plaintiff’s foot was run over when he was forced from his vehicle by assailants. The Court concluded that his injuries resulted from the overall constellation of assaults he was forced to endure and not from the specific use of or operation of the vehicle.

Clark unsuccessfully challenged the law in reliance on the Supreme Court’s recent decision in Westmount (City) v. Rossy, (2012) S.C.C.30 . Rossy was killed when a tree fell on the vehicle he was driving in the City of Westmount. His relatives filed an action under the Civil Code of Quebec and Westmount was successful in dismissing the action on the basis that the injury resulted from the an accident caused by an automobile and, therefore, compensation for personal injury was governed by the Automobile Insurance Act, R.S.Q., c. A-25. The Supreme Court concluded Rossy’s injuries were “caused by an automobile, by the use thereof or by the load carried in or on an automobile.”

IMPLICATIONS

This distinction is key and for this reason, Rossy did not change the law in Ontario. Both Downer and Martin remain the law. A fight on a bus, no matter how crowded, cannot be said to be a normal incident of risk created directly by the use or operation of a bus. The motor vehicle is simply the location for an incident, not a direct cause of an accident.

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