January 15, 2019, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Cyclist and Car – was it an accident? Peter Dziuba and TD General Insurance Company
Date of Decision: August 27, 2018
Heard Before: Adjudicator Maggy Murray
WAS IT AN ACCIDENT: reports of the accident are contradictory; two part test to evaluate the existence of an accident; applicant and driver in a physical altercation leading to some injuries; no direct contact between the vehicle and cyclist;
The Arbitrator's Orders of September 18, 2017 and November 27, 2017 are confirmed, and this appeal is dismissed.
REASONS FOR DECISION
Mr. Dziuba appeals the orders of Arbitrator Parish dated September 18, 2017 and November 27, 2017, wherein she found that Mr. Dziuba was not involved in an “accident” within the meaning of the Schedule and ordered Mr. Dziuba to pay TD $3,028.22 (including HST and disbursements) for its expenses of the arbitration hearing, which lasted one day and for which the parties also made written submissions following the hearing.
Mr. Dziuba requested that I set aside the Arbitrator’s decisions, that I find he is entitled to accident benefits in the catastrophic injury category, and that I order damages for pain and suffering in the amount of $50,000 for the Arbitrator’s alleged infraction of the Accessibility for Ontarians with Disabilities Act.
Although Mr. Dziuba submits that the Arbitrator made a number of errors in her decision of September 18, 2017, there was evidence to support the Arbitrator's assessment of the evidence. There is thus no reason to intervene.
Mr. Dziuba claimed he was injured in a motor vehicle accident on August 17, 2014 when he was riding his bicycle. An SUV came close to him when turning right. Mr. Dziuba moved to the right while still on his bicycle and yelled at the driver of the SUV for almost hitting him. Mr. Dziuba's grabbed the rear windshield wiper of the SUV in an attempt to get around it. The SUV allegedly hit Mr. Dziuba's right leg and right shoulder. Mr. Dziuba continued riding his bicycle north. The SUV then ran him off the road into a ditch. Mr. Dziuba stated that the SUV's passenger side mirror hit his left shoulder and the back of his neck, and the bicycle chain went into his right leg when the bicycle hit the ground, which was the second impact with the SUV.
The police were called by the SUV driver and Mr. Dziuba gave the police a statement explaining what happened. According to Mr. Dziuba, the police officer told him he could add more details to the report at a later date, and to report what he could recall at that time. Mr. Dziuba then rode his damaged bicycle home and went to Halton Healthcare Services Emergency Department to seek treatment for his injuries, which consisted of cuts to both legs and an abrasion on his forehead. A tetanus shot was administered for cuts to his legs from the bicycle chain.
Mr. Dziuba went to the police station the following day to provide further information and to see a copy of the police report. Mr. Dziuba was advised by the police that he could not add to the report. Mr. Dziuba testified that the police incorrectly noted the SUV was in the right lane, and the report did not note all of his injuries.
MN testified he was driving north in his SUV when he saw a cyclist, Mr. Dziuba. Mr. Dziuba motioned MN to pass. MN sped up as he drove past Mr. Dziuba and Mr. Dziuba swore at him. MN moved into the right turn lane at an intersection. The light turned red and he stopped. MN heard something that sounded like a hand smacking his SUV window. MN and Mr. Dziuba exchanged verbal profanities. MN turned right and Mr. Dziuba continued cycling north. MN pulled over in his SUV to inspect his vehicle. According to MN, Mr. Dziuba had ripped off the rear wiper arm of his SUV. MN got into his SUV and turned around because he wanted to speak to Mr. Dziuba about ripping off his rear wiper. MN testified he caught up to Mr. Dziuba and was nudging Mr. Dziuba closer to the side of the road, but his SUV did not come into contact with Mr. Dziuba. Mr. Dziuba moved off the road onto the gravel area at the side.
MN testified that he told Mr. Dziuba he owed him $200.00 to replace the wiper he had ripped off of his SUV. MN then telephoned the police while he was holding the handlebars of Mr. Dziuba's bicycle to prevent Mr. Dziuba from leaving. MN testified that Mr. Dziuba was waving his arms and yelling. Mr. Dziuba punched MN in the face when MN was speaking to the police through the passenger side window on his SUV's Bluetooth system. According to MN, his SUV did not make contact with Mr. Dziuba or come too close to Mr. Dziuba, nor did Mr. Dziuba fall off his bicycle.
MN was not charged with any highway traffic offence.
The police report stated: “The cyclist does admit during his interview that the SUV did not make contact with him when he was moved off the road but stated he felt he would have, if he didn't comply by pulling over and stopping." The emergency room report noted that Mr. Dziuba was a cyclist cut-off by a car and that the driver got out and knocked Mr. Dziuba off his bicycle.
The Arbitrator concluded that:
- Mr. Dziuba’s evidence conflicted with a substantial amount of evidence, including the police report and the emergency room report;
- Mr. Dziuba did not answer questions put to him in a straightforward manner during the hearing;
- Both Mr. Dziuba and MN’s evidence confirmed that there was a physical and verbal altercation on August 17, 2014;
- The SUV did not impact Mr. Dziuba;
- Once MN exited his SUV, the chain of causation was broken from his use of the SUV;
- The SUV was not the direct cause of Mr. Dziuba’s injuries.
This was a fact-based decision. Mr. Dziuba requested that I order accident benefits in the catastrophic injury category.
Rule 56.3 of the Dispute Resolution Practice Code – Fourth Edition, states: “… an appeal will only include issues that were the subject of the arbitration proceeding or dealt with in the arbitration order being appealed.” Since the issue of catastrophic impairment was not an issue before the Arbitrator, I have no jurisdiction to make the order requested.
Mr. Dziuba also requested that I order damages for pain and suffering in the amount of $50,000.00 for the Arbitrator’s alleged infraction of the Accessibility for Ontarians with Disabilities Act (“AODA”) or refer the matter to the License Appeals Tribunal for a determination of the AODA infraction and compensation under the AODA. Awarding damages for pain and suffering is not a benefit payable under the Schedule and I have no jurisdiction to make the order requested.
Most of Mr. Dziuba’s submissions consist in stating that the Arbitrator gave improper weight to certain evidence. However, it was the Arbitrator's role to weigh the evidence, and her key findings were all based on evidence before her, therefore, I have no reason to intervene.
To be able to claim statutory accident benefits, a person must have been involved in an "accident", as that term is defined in the Schedule. "Accident" is defined in the Schedule as "an incident in which the use or operation of an automobile directly causes an impairment ... (emphasis added)".
The Arbitrator determined that she could not conclude that the SUV impacted Mr. Dziuba and consequently, she could not conclude that Mr. Dziuba’s injuries were caused by the use or operation of an automobile. That is not the correct test for whether or not an accident occurred. There does not need to be contact between a motor vehicle and a person for an accident to occur. For example, if a pedestrian falls and injures themselves because they moved out of the way of an oncoming car, and there is no intervening incident, that would be an “accident” within the definition of the Schedule.
Although the Arbitrator’s analysis of whether or not an accident occurred, as outlined in the paragraph above, was flawed, I find the result was correct when she concluded that an accident within the definition of the Schedule did not occur because of an intervening act (the physical altercation) which broke the chain of events, as outlined in Chisholm v. Liberty Mutual Group, and was a finding of fact.
The police report noted that both Mr. Dziuba and the driver of the SUV had minor injuries due to a physical altercation. The emergency room report stated that Mr. Dziuba was a cyclist “cut off by car, and driver got out and knocked me (i.e., Mr. Dziuba) off bike. Hit head … ground …”. Mr. Dziuba testified that the information contained in the emergency room report was a “pretty accurate” description of what happened.
The Arbitrator found that “the testimonies of Mr. Dziuba and MN confirm there was a verbal and physical altercation on August 17, 2014. However, their details differed, specifically with respect to whether there was an impact with the SUV, injuries sustained by Mr. Dziuba, damage to Mr. Dziuba's property, and who was the aggressor in the altercation. I afford little weight to the differences in the details.” However, the Arbitrator explained her preference for the evidence contained in the police report and the emergency room report, because the police officer was a neutral party, and that decision is entitled to deference.
Two tests apply in considering whether an incident was an accident: (i) The use-or-operation purpose test set out in Amos v. Insurance Corp. of British Columbia which requires that the incident result from the "ordinary and well-known activities to which automobiles are put;" and (b) The causation test set out in Chisholm v. Liberty Mutual Group, which modified the causation test in Amos, that to be an "accident," the use or operation of the motor vehicle must directly cause the impairment.
On the basis of all the evidence the Arbitrator determined that the connection between the use or operation of the SUV and Mr. Dziuba’s injuries is not sufficient to be covered by automobile insurance.
Conclusion Regarding Whether the Incident was an “Accident”
The Arbitrator made findings of fact based on the evidence and those findings of fact are entitled to deference. Therefore, the appeal of the Arbitrator’s order of September 18, 2017 is dismissed.