Leanne A. Zawadzki
A recent Financial Services Commission of Ontario Appeal Decision from Director’s Delegate Evans confirms that for the purposes of the Statutory Accident Benefits Schedule, an “accident”, is defined as an incident in which the use or operation of an automobile directly causes an impairment.
In Clarke v. TTC Insurance Company Limited, the Applicant, Mr. Clarke, was injured when he got into a fight with a fellow passenger on a Toronto Transit Commission bus.[i] At some point during the fight, Mr. Clarke lost his balance and fell down. The incident was videotaped and clearly depicted the incident from several angles. The fight continued for some time, with the two punching each other until Mr. Clarke stumbled backward and fell down. Mr. Clarke claimed that after his fall, his toe came into physical contact with the under seat of the bus. Mr. Clarke alleged that the bus was moving when he fell. He also alleged that the stubbing of his toe when he fell led to the amputation of his lower leg several months later.
At the Preliminary Issue Hearing, the Arbitrator disagreed. The Arbitrator found that the bus was not moving at the time of Mr. Clarke’s fall and further, if he was injured, it was because of the fight. She found that the incident did not arise out of the use or operation of the bus because the bus was merely the location of the fall, and the alleged contact with the interior of the bus was ancillary to Mr. Clarke being knocked down by the other passenger. The Arbitrator further found that the use or operation of the bus did not directly cause Mr. Clarke’s injury because the dominant feature of Mr. Clarke’s claim was the assault.
Mr. Clarke appealed the decision on both substantive and procedural fairness grounds. He argued that the Arbitrator failed to apply the two-part test for considering whether the incident was an “accident”:
- The use or operation purpose test set out in Amos v. Insurance Corp. of British Columbia,  3 S.C.R. 405; and
- The causation test set out in Chisholm v. Liberty Mutual Group (2002), 60 O.R. (3d) 776 (C.A.).
On Appeal, Director’s Delegate Evans noted that the Arbitrator found the use or operation of the vehicle was not a cause of Mr. Clarke’s injuries because the bus “merely provided the opportunity and the location for a fight between Mr. Clarke and the other passenger.” It was reiterated that there are a number of Commission cases holding that an assault on a vehicle does not fit within the definition of “accident” where the vehicle played no more than a passive role.[ii]
Furthermore, Director’s Delegate Evans agreed with the Arbitrator’s finding that the fight was not part of the “ordinary course of things”. An assault on a bus cannot be said to be within a normal incident of risk created by the use or operation of a bus. This was confirmed by the recent Ontario Court of Appeal decisions in Downer v. The Personal Insurance Company, 2012 ONCA 302 (CanLII) and Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19 (CanLII). Both of those decisions were assault cases where the vehicle was found to be merely the location for the assault, subject to limited exceptions.
At the Appeal hearing, Mr. Clarke conceded the point that the Downer and Martin cases were decisive on this issue and looking at those cases, it would be difficult to find any error in the Arbitrator’s decision; however, he submitted that the decisions in Downer and Martin were no longer good law as a result of the Supreme Court of Canada’s decision in Westmount (City) v. Rossy, 2012 SCC 30.
In that case, Mr. Rossy was killed when a tree fell on the vehicle he was driving in the City of Westmount. His relatives filed an action in damages against the City on the basis of civil liability under the Civil Code of Québec. Westmount was ultimately successful in moving to dismiss the action on the basis that the injury resulted from an accident caused by an automobile and, therefore, any compensation for personal injury was governed by the Automobile Insurance Act, R.S.Q., c.A-25. The motions judge found for the city but was overturned by the Quebec Court of Appeal. The further appeal before the Supreme Court turned on the following question: Were Mr. Rossy’s injuries “caused by an automobile, by the use thereof or by the load carried in or on an automobile”? The Supreme Court agreed with the motions judge and found for Westmount.
Mr. Clarke therefore submitted that the only difference between the Quebec and Ontario provisions is that the former does not use the word “directly.”
Director’s Delegate Evans noted that it was that very difference in the wording which was “key” to the analysis. There had to be a direct correlation between the injury and the use or operation of the motor vehicle. As such, the decision in Rossy did not change the law in Ontario as set out in Downer and Martin. There was no error of law in the Arbitrator’s conclusion that a fight on a bus, however crowded, was not part of the ordinary course of things. Mr. Clarke was not injured as a result of an “accident” because the use or operation of an automobile did not directly cause an impairment as defined in section 2(1) of the Schedule.
[i] Appeal P13-00012 (April 11, 2014).
[ii] Kumar and Coachman Insurance Company (FSCO P01-00026, August 9, 2002) and in Lombard General Insurance Company of Canada and Liu, (FSCO P02-00030, January 8, 2004).