April 30, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Date of Decision: April 1, 2016
Heard Before: Adjudicator Barry Arbus
Mr. Samad was involved in an incident on December 31, 2012, and applied for SABs from North Waterloo, but when an issue arose between the parties as to whether Mr. Samad had been involved in an “accident” which was not resolved through mediation, Mr. Samad applied for arbitration at the FSCO.
The parties requested that this Hearing be restricted to one preliminary issue and the hearing of all other issues be postponed until determination of the preliminary issue.
Was Mr. Samad involved in an “accident” as defined by Section 3(1) of the Schedule?
Mr. Samad was involved in an accident as defined by Section 3(1) of the Schedule.
Mr. Samad was on shift as a taxi driver operating his 2005 Dodge Caravan vehicle when he responded to a call for pick-up and picked up three passengers at a grocery store on Yonge Street in Newmarket. An argument then resulted between the passengers and Mr. Samad, whereupon one of the passengers punched Mr. Samad in the face. Mr. Samad then stopped the van on the side of Yonge Street and the passengers exited the van, leaving one of the rear doors ajar. Mr. Samad exited the van from the driver’s side, went around to the other side of the van to close the rear door and was shoved once by one of the passengers, whereupon he fell into the ditch and was injured. Mr. Samad climbed out of the ditch, re-entered the van and attempted to drive further north on Yonge Street, with the pain intensifying, at which time he pulled over and called the police and was taken by ambulance to the hospital.
Mr. Samad argues that pursuant to the Schedule he has been in an accident. He maintains that the applicable test to be applied is twofold: (1) did the incident arise out of the use or operation of an automobile; and (2) did such use or operation directly cause the impairment. He argues that there can be more than one direct cause of the victim’s injuries, so long as one of the direct causes arises from the use or operation of a motor vehicle. Mr. Samad’s counsel argues that Mr. Samad’s use of the car had not ended; at the very least, it was the dominant feature of his injuries. Mr. Samad’s counsel argues that the entire transaction or series of events started with the use or operation of an automobile, and ended in an injury because of the use or operation of the automobile. Mr. Samad’s counsel therefore claims that Mr. Samad sustained an impairment as a direct result of the use or operation of an automobile.
North Waterloo argues the definition of accident was changed in 1997 by deleting the word “indirectly”, leaving a much narrower and more stringent causation requirement for an Applicant to meet. This change reflects a government policy decision to hold insurance companies responsible only for injuries directly caused by the use or operation of an automobile. North Waterloo takes the position that Mr. Samad failed to meet both the purpose test and the causation test and submits that Mr. Samad’s automobile was involved in the incident in question, but only in a very “incidental or peripheral” way.
North Waterloo argues that the use or operation of the vehicle had come to an end once Mr. Samad exited and walked around the side of the vehicle. North Waterloo’s counsel analogizes that Mr. Samad was injured because he was assaulted by one of the passengers, not because he was engaged in the use or operation of the motor vehicle. Accordingly, North Waterloo’s counsel argues that Mr. Samad does not meet the first part of the test (the “purpose test”) and, even if he did, he does not meet the second part (the “causation test”).
The Arbitrator reviewed the laws, and the tests contained in them and determined that since 1996, the change of the definition of an “accident” has become a crucial part of the case law. The purpose test asks whether the incident arose out of the ordinary and well-known activities to which automobiles are put. The Arbitrator was satisfied that the purpose test has been met and that Mr. Samad was driving his van in the ordinary and well-known activities to which automobiles are put. The taxi was being used for its ordinary purpose, which was to pick up and transport passengers.
The second test, which is the causation test, asks whether the use and operation of the automobile directly caused the impairment. There are three bases or prongs under which the causation could be met:
The “But For” Test – In this case Mr. Samad’s impairment would not have occurred had he not been driving the van and operating his taxi on New Year’s Eve. His driving of the van clearly would not be an irrelevant cause.
Intervening Act – The Arbitrator was satisfied that Mr. Samad has met this test and met the burden of establishing that the use and operation of the vehicle caused the impairment, and the intervening act of the assault by one of the passengers or Mr. Samad slipping on the ice is insufficient to disentitle Mr. Samad’s claim.
Dominant Feature Enquiry – The Arbitrator determined that one cannot isolate either the assault by one of the passengers or the slipping on the ice by Mr. Samad from the entire chain of events which was tied into the use and operation of the automobile.
On this basis the Arbitrator concluded that Mr. Samad was able to satisfy the purpose test and has also met the three prongs of the causation test. Accordingly, Mr. Samad was involved in an accident as defined by Section 3(1) of the Schedule.