October 10, 2011, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Judge: Murray J.
Decision Date: August 23, 2011
The Personal Insurance Company brings a motion for summary judgment.
[2 Michael Downer’s claim against The Personal Insurance Company is for Statutory Accident Benefits arising out of alleged injuries which occurred on February 26, 2000.
 In order to be entitled to Statutory Accident Benefits, Mr. Downer must establish that he was involved in an “accident” within the meaning of Section 2 of the Statutory Accident Benefits Schedule. Under the Schedule, an “accident” means to “an incident in which use or operation of an automobile directly causes an impairment … .” In this case, Mr. Downer asserts that he has suffered impairment which is the direct result of an accident. “Impairment” means “a loss or abnormality of the psychological, physiological or anatomical structure or function.” Mr. Downer asserts that he is entitled to disability benefits indefinitely as a result of depression, anxiety, post-traumatic stress disorder, chronic low back pain, migraine headaches, anxiety and nervousness, and other ailments, including physical limitations on his ability to function.
 Personal Insurance disputes that there was an “accident” within the meaning of the Schedule. They take the position that the direct cause of Mr. Downer's injuries was the assault by unknown assailants, not the use or operation of an automobile, and that he is not entitled to accident benefits from the defendant. Although there are a number of issues involved in this case (for example, the Personal Insurance Company disputes that Mr. Downer suffered any “impairment” within the meaning of Regulation), counsel are in agreement that the central issue to be decided on this motion is whether Mr. Downer was involved in an “accident” within the meaning of the Schedule. In essence, although the motion is for summary judgment, this Court is asked to decide a question of law and counsel are agreed that the arbitrator should deal with this issue and none of the other issues in dispute.
 For purposes of this motion, the facts as reported to the insurance company by Mr. Downer are agreed. The relevant portion of Mr. Downer's statement is as follows:
I am the registered owner of a 1994 Jeep, license plate ADDV 942. At the time of the accident, I held the policy with The Personal Insurance, 1214286. I was involved in a motor vehicle accident on February 26, 2000 the time, I believe, was between 10:00 to 11:00 PM. The accident or incident occurred at a gas station which is at the intersection of Markham Road and Ellesmere. I was at a Shell gas station. I believe I had either gone to an apartment to meet someone or I had gone to the bank before entering the gas station. I pulled into the gas station and parked my van. The engine was still running. I had parked in order to separate the money I was required to give to pay for gas from the money which I was going to give someone. I had parked with the intention of purchasing gas. I had my dome light on while I was doing this. After I had finished separating my money, I glanced up and noticed about three or four young men around 20 to 21 years old around the man beside me. My vehicle was not locked and the window on the passenger side was rolled down halfway. I heard one of the men call “hey” from the passenger side of my vehicle. I remember turning around and being hit by someone from the driver's side. I do not recall whether or not my window was open. A man came into my vehicle from the passenger side and started hitting me in the head and men from both sides were trying to pull me out of the vehicle. I do not recall exactly how many men there were, but there was at least two men on either side. I think I may have lost consciousness for a few seconds, however, I was alert enough that I tried to change gears to reverse out of the spot. When I reversed, a man tried to force the gear into park. I managed to reverse the vehicle and pulled out of the parking spot. I noticed both doors of the vehicle were open. Someone had been partially in the vehicle trying to change gears. He jumped out once I changed gears. I heard something or clicking noises when I pulled out of the vehicle (gas station?). I had thought I may have run over one of them. I believe the doors may have slammed shut once I began to move. This all happened very quickly. I pulled out of the gas station and went north on Markham Rd. I drove around for a little while to make sure I was not being followed. I then came home and put some ice on my face. I was a wreck. I didn't know what I was doing. I didn't think I spent more than 5 min. at home. I was scared and nervous. I decided to drive to the police station which is close by. I flagged down a police officer on my way to the station. He took a report about the accident and took fingerprints from the Jeep. There were various different police officers that came to the scene. At the scene of the accident, my obus forme (back support) was on the ground, which I had not even noticed. There was a cap on the ground; there were also marks from my tires on the ground. I am not sure if the police located any witnesses. … I lost my watch in the incident, and my CD player broke, and two CDs were broken. I do not drink or smoke. I was wearing my seatbelt when the incident happened. I did not have any passengers in the vehicle with me. … .”
 Based on this claim, Personal Insurance Company paid accident benefits in the amount of $73,061.27. On or about August 3, 2001, Personal Insurance advised Mr. Downer that no further accident benefits would be paid and that the insurance company would be seeking repayment of all benefits paid to Mr. Downer pursuant to section 47(1) of the Schedule. Personal Insurance takes the position that the payment of accident benefits was the result of an error.
 As stated in Chisholm v. Liberty Mutual Group 2002, “the legislative history of the Schedule shows an intent to differentiate between direct and indirect cause. Undoubtedly, as a cost-saving measure, the 1996 Schedule limits coverage two incidents in which the use or operation of an automobile directly causes an injury.”
 Before November 1, 1996, an "accident" was defined as follows:
"accident" means an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment or causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device;
 As noted above, the present provision which applies to accidents on or after November 1, 1996, reads 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; [emphasis added]
 In Amos v. Insurance Corporation of British Columbia, 1995, the Supreme Court of Canada propounded a two-part test of general application for interpreting Canadian automobile-insurance statutes. Focusing on what is included in or excluded from the meaning of "accident", this test assists one in determining if a particular incident gives rise to an entitlement to accident benefits. In the Amos case, the plaintiff was attacked by gunmen and shot while driving his van in an attempt to escape. The relevant British Columbia automobile insurance statute provided for benefits payable "in respect of death or injury caused by an accident that arises out of the ownership, use or operation of a vehicle."
 In delivering the unanimous judgment of the Supreme Court of Canada, Major, J. held that Amos's injuries were the result of an "accident" within the meaning of the regulation. The two-part test laid down by the Court is as follows: 1) Did the accident result from the ordinary and well-known activities to which automobiles are put? (the "Purpose Test"); and 2) Is there some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the plaintiff's injuries and the ownership, use or operation of his vehicle; or is the connection between the injuries and the ownership, use or operation of the vehicle, merely incidental or fortuitous? (the "Causation Test").
 In order to reflect the 1996 change in the language of the Schedule, in Ontario, the second part of the two-part test spelled out in Amos (the "Causation Test") must be modified as follows: “Is there a direct or proximate causal relationship between the plaintiff's injuries and the ownership, use or operation of his vehicle or is the connection between the injuries and the ownership, use or operation of the vehicle, indirect or merely incidental or fortuitous? See the Ontario Court of Appeal decision Greenhalgh v. ING Halifax Insurance Co.
 In this case, Mr. Downer drove his Jeep into a gas station with the intention of purchasing gas. His engine was running. After separating money for a gas purchase from other money in his wallet, he was assaulted by a number of assailants. In the course of the attack, his assailants entered the vehicle and tried to pull Mr. Downer from the vehicle. One of his assailants tried to put the gear of the vehicle into park but Mr. Downer, in a struggle with one of the assailants, was able to put the vehicle into gear and move the vehicle away from the assailants and out of the gas station. In the course of driving away, the plaintiff believes that he may have hit or run over one of the assailants, an aspect of the incident which may contribute to his current medical issues.
 Did the accident result from the ordinary and well-known activities to which automobiles are put? Pulling into a gas station in order to purchase fuel is an activity to which all vehicles are put. The first part of the test is therefore satisfied. As the Ontario Court of Appeal stated in Greenhalgh v. ING Halifax Insurance Co., at para 24:
There is good reason in favour of retaining the Amos purpose test. First, while the language of the Amos causation test clearly reflects the express legislative language in that case, the Amos purpose test is drawn by inference from that language which broadly parallels the language at stake in this case. The Amos purpose test asks whether the accident in question resulted from the ordinary and well-known activities to which automobiles are put. Arguably, this question would apply whenever a court sets out to interpret any legislation dealing with automobile insurance; the common denominator in any situation falling under automobile insurance legislation is a situation wherein a car is put to use in an ordinary way. Second, absent clear language, it is presumed that most automobile insurance legislation is not intended to cover uses of cars that are not ordinary and well-known. Neither insurance companies nor the insured would expect coverage to extend to any and every use to which a car may be put, no matter how unforeseen or unprecedented. (For example, would a car insurance policy cover an accident which arose where an insured attempted to lift his car solely to show his strength, thereby hurting his back?) If that is the case, then the Amos purpose test may act as a sort of filter; before determining whether the accident was causally connected to the use of the car, it has to be determined whether the car was being used in a manner that would be covered by the insurance at all.
 Moving to the second part of the two-part test, it is necessary to answer the following question: Is there a direct or proximate causal relationship between the plaintiff's injuries and the ownership, use or operation of his vehicle or is the connection between the injuries and the ownership, use or operation of the vehicle, indirect or merely incidental or fortuitous? As stated by the Court of Appeal in Greenhalgh (relying on Chisholm in which Laskin J.A. accepts that, in certain cases, there could be more than one direct cause), the question is whether it can be said that the use or operation of the motor vehicle was "a direct cause" of the injuries rather than “the direct cause”. In the Arbitrator’s opinion, there is a direct or proximate causal relationship between the plaintiff's injuries and the ownership, use or operation of his vehicle.
 The Court of Appeal in Greenhalgh v. ING Halifax Insurance Co., reviewed the Reasons of Laskin J.A. in Chisholm v. Liberty Mutual Group, 60 OR (3rd)776, in which Justice Laskin carefully considered the causation test under the current Schedule. The Court of Appeal in Greenhalgh stated, at paras 33 and following:
As noted above, Laskin J.A. rejected the Amos causation test, given the more stringent causation requirement in the 1996 legislation. Instead, he described the causation test at para. 27 in the following way:
A direct causation requirement conjures up memories of the famous English tort case of In Re Polemis & Furness, Withy & Co. Ltd., All E.R. Rep. 40,  3 K.B. 560, where recovery was allowed for damages that were not a foreseeable result of the defendant's negligence but were directly caused by it. When one thinks of direct causation one thinks of something knocking over the first in a row of blocks, after which the rest falls down without the assistance of any other act.
 Laskin J.A. then went on to hold, at para. 29, that:
[E]ven accepting that the use of Chisholm's car was a cause of his impairment, a later intervening act occurred. He was shot. An intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car - if it is "part of the ordinary course of things". ... Gun shots from an unknown assailant can hardly be considered an intervening act in the "ordinary course of things" [citations omitted].
 Finally, Laskin J.A. thought it was useful to consider the "dominant feature" test as developed by the Supreme Court under broader legislation in Heredi v. Fensom, 2002. Even under the more expansive legislation, Mr. Chisholm could not succeed. In Chisholm, it was the gunshots, and not the use or operation of an automobile,that could be said to be the "dominant feature" of Mr. Chisholm's injury. In short, Laskin J.A. found three inquiries helpful in answering the "direct cause" question: the "but for" inquiry; the "intervening act" inquiry; and the "dominant feature" inquiry.
 Greenhalgh v. ING Halifax Insurance Co. involved a claim for accident benefits. In that case, Greenhalgh's car became lodged upon a rock on a country road. She could not dislodge it and attempted to use her cellular phone to call for assistance, however, the battery was dead. Greenhalgh and her friend decided to leave the vehicle and walk back to the main road. They became disoriented and walked for nine or ten hours. Along the way they fell through ice into a river. Greenhalgh lost her shoes. As a result of exposure to the cold she suffered extreme frostbite which necessitated the amputation of her fingers and legs below the knees. Greenhalgh then submitted a claim for accident benefits. The Court of Appeal concluded that there were numerous intervening acts between the time that her car got stuck and when she sustained her injuries. Those intervening acts supported the conclusion that the use of the car was not a direct cause of the injuries. The dominant feature of Greenhalgh's injuries was exposure to the cold. The use of the motor vehicle was ancillary. The injuries she suffered were not a direct result of the automobile accident within the meaning of the legislation.
 The case at bar is distinguishable from that of Greenhalgh v. ING Halifax Insurance Co. and from Hanlon v. Guarantee Co. of North America,1997, Alchimowicz v. Continental Insurance Co. of Canada, 1996, and Mahadan v. Co-operators General Insurance Co. , 2001, all of which were referred to by the Court of Appeal in Greenhalgh. In Greenhalgh, as in Hanlon, Alchimowicz and Mahadan, the use of the car had ended without injury being suffered; the insured had physically left the car; no automobile contributed physically to the insured's injuries; and there was temporal distance between the end of the use of the car and the injuries.
 In the case at bar, the use of the car had not ended before injury was suffered. The insured had not physically left the car but was in his vehicle and the engine was running when he was assaulted. There was no temporal distance between the end of the use of the car and the injuries. The logical and probable inference from the facts is that the assailants were intent on taking possession of and seizing control of Mr. Downer's vehicle while Mr. Downer was in possession and control of his vehicle. The injuries suffered in this case are not analogous to the injuries caused by a random gunshot in a drive-by shooting, as in Chisholm, where there was no causal relationship between the claimant's injuries and the operation of his car. The injuries caused to Mr. Downer are directly connected to the use and operation of his vehicle because they were caused by assailants whose purpose was to seize possession and control of his automobile from him. The assault on Mr. Downer was not random but arose out of his ownership, use and operation of his vehicle. As in Amos, it was the "use or operation" of his own vehicle that put Mr. Downer in harm's way. This is sufficient to form the conclusion that in this case there is a direct or proximate causal relationship between the plaintiff's injuries and the ownership, use or operation of his vehicle and that Mr. Downer was involved in an “accident” within the meaning of the Schedule.
 In the context of the issue of causation, it may be useful to consider Mr. Downer’s claim that he suffers from depression, anxiety, and post-traumatic stress disorder as a result of the accident. The Arbitrator is cognizant that impairment is an issue in this case and does not, by the remarks that follow, intending to comment on whether the plaintiff was or is impaired. In the statement of facts referred to above, Mr. Downer states his belief that he may have run over one of the assailants with his automobile. At this stage, we know that the plaintiff asserts that the incident has caused depression, anxiety and post-traumatic stress disorder. The incident includes his belief that he may have run over one of the assailants with his vehicle. To the extent that this belief may contribute to depression, anxiety and post-traumatic stress disorder or any other psychological condition, it is clear that it is a direct consequence of the use or operation of his motor vehicle. Furthermore, it would be difficult if not impossible to sever this aspect of his impairment from that caused by the assailants in their attempt to seize possession and control of his vehicle. What if, while fleeing the assailants on the way out of the gas station, Mr. Downer had hit an innocent pedestrian with his vehicle? Would any trauma suffered as a result be a direct consequence of the operation of the motor vehicle? Surely the answer is yes. In the Arbitrator’s view, these considerations are consistent with the conclusion that the defendant insurer is not absolved of liability because of an “intervening act”, as that phrase is interpreted and applied in Chisholm and Greenhalgh.
 Counsel for the plaintiff relied on the case of Citadel General Assurance Co. v. Vytlingam, 2007, in which the Supreme Court of Canada considered a case involving a family traveling northbound on a highway in North Carolina when two individuals dropped two large boulders from an overpass onto the Vytlingam’s vehicle causing catastrophic and permanent injuries to one of the passengers. A vehicle had been used by the tortfeasor to transport the boulders to the overpass from which they were dropped on the Vytlingam vehicle. Vytlingam dealt with the liability of an under-insured tortfeasor. The issue was whether the tortfeasor whose conduct was the subject matter of the indemnity claim was at fault “as a motorist”. The Supreme Court held that the Vytlingams failed to establish that the tortfeasor's liability arose directly or indirectly out of the use or operation of the tortfeasor's vehicle. However, Binnie J., in delivering reasons on behalf of a unanimous court, stated at para 14:
In the present case, there is no doubt that the Vytlingams were entitled to no-fault benefits since they were using their car for an "ordinary and well-known" motoring activity in driving north on Interstate 95, and that the injuries they suffered were related to such "use and operation". Accordingly, their insurers have paid no-fault statutory benefits to Michael Vytlingam, and his mother and sister, in the total amount of $1,408,358.22 (appellant's factum, at para. 16). Although the Ontario statute is not worded precisely the same as the British Columbia statute, Amos clearly established the Vytlingams' entitlement to statutory benefits.
 Although the quote above may be characterized as obiter, and although Binnie J. refers to the Amos case as determinative of entitlement to no-fault benefits, it is important to note that the accident in the Vytlingam case occurred in 1999. Therefore, the same definition of “accident” in the Statutory Accident Benefits Schedule applied to no-fault benefits in Vytlingam as in this case. In the above noted quote, Binnie J. makes reference to the wording of the Ontario statute and, in the judgment; he also makes reference to the Ontario Court of Appeal decision in Chisholm v. Liberty Mutual Group in which the Court of Appeal dealt in detail with the 1996 change in the language of the Schedule. Counsel for the plaintiff argues that Justice Binnie was fully cognizant of the change in the language of the Schedule in 1996 when, on behalf of a unanimous court, he stated that: “there is no doubt that the Vytlingams were entitled to no-fault benefits.” For the reasons outlined above, the Arbitator comes to the conclusion that in this case there is a direct or proximate causal relationship between Mr. Downer's injuries and the ownership, use or operation of his vehicle without relying on Citadel General Assurance Co. v. VIytlingam. However, if counsel for the Mr. Downer is correct in his reading of the VIytlingam decision, then the Arbitrator agrees that it is very strong authority in support of his argument on behalf of the Mr. Downer.
 The Arbitrator concludes that the plaintiff, Mr. Downer, was involved in an “accident” within the meaning of the Schedule.