June 2, 2014

SABS Update – Defining an “Accident”: Use or Operation of an Automobile

For The Week Of June 2 to June 8, 2014

Gill v. Northbridge Commercial Insurance Corporation, FSCO A12-004565, Arbitrator Pepper, Released May 12, 2014

MVC May 13, 2010. At a preliminary hearing, FSCO was asked to determine whether Mr. Gill (“Gill”) was injured in an accident, as defined in section 2(1) of the Schedule.

Gill, a long haul truck driver, suffered a psychotic/manic-depressive incident on May 13, 2010. After a lengthy chase by police, he was shot with rubber bullets and taken into custody. Gill claimed the incident was caused by the operation of his truck, in particular fatigue, extreme tiredness and stress brought on by long shifts. Gill claimed various injuries flowing from the incident including Bipolar Illness Type 1, neck pain/right wrist pain/right hand pain/left arm pain from being shot by rubber bullets, low back pain, headaches and depression.

“Accident” is defined in section 2(1) of the Schedule as:
“accident” means an incident in which the use or operation of an automobile directly causes an impairment…

The Arbitrator found, in order to conclude Gill was injured in an “accident”, the use or operation of his automobile must have directly caused the impairment.

The position of the insurer was that the rubber bullets were the direct cause of Gill’s injuries, not the use or operation of his automobile.

The insurer relied on the Ontario Court of Appeal decision in Chisholm v. Liberty Mutual Group (2002) (“Chisholm”). In Chisholm, the Court used the two-part test set out by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia (1995) (“Amos”):

(1)The purpose test: did the accident result from the ordinary and well-known activities to which automobiles are put? and;

(2)The causation test: was there some nexus or causal relationship between the plaintiff’s injuries and the ownership, use or operation of his car, or was the connection merely incidental or fortuitous

Citing Amos, the Court held:

In Amos, the appellant was entitled to no-fault benefits because his ‘vehicle was not merely the situs of the shooting’…the shooting appears to have been the direct result of the assailants’ failed attempt to gain entry to the appellant’s van.

The Arbitrator found the above distinction had direct application to Gill’s incident. The shooting of Gill was not random, but arose out of his use or operation of an automobile. His erratic operation of his truck and his failure to stop likely led to the shooting.

In Greenhalgh v. ING Halifax Insurance Co. (2004), the Court of Appeal adopted and clarified the Chisholm approach to causation as follows:

In my opinion, the Chisholm test, as it applies to this case, can best be set out in the form of two questions:

1.Was the use or operation of the vehicle a cause of the injuries?
2.If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening 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 injuries?

The Arbitrator concluded there was a genuine issue for hearing for two reasons:

1)There was an absence of medical or other expert evidence which set out the likely cause or causes of Gill’s psychotic and manic-depressive incident.
2)Additional evidence was required at the hearing in order to properly assess whether the shooting was an intervening event or in the ordinary course of things, given Gill’s erratic and dangerous driving.

IMPLICATIONS

Determining whether the Schedule applies continues to involve a contextual analysis. A proper evidentiary record is crucial to proving an automobile was a cause of the injury. The analysis is particularly important in a case such as this, where there is unlikely to be a companion tort action.

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