Ontario appeal court rules for insurer after assault victim tries to claim auto accident benefits

The Court of Appeal of Ontario has overturned most of a lower court decision two years ago in which a judge ruled against Certas Direct Insurance Company, which denied accident benefits to a claimant who was assaulted in and near his car.

In a ruling published last Thursday, the appeal court ruled that the judge in a motion court had erred when it granted declarations that the claimaint, Paul Martin, was injured as a result of an “accident” according to Ontario law and that his injuries arose “directly or indirectly from the use [or] operation of his automobile.”

Martin was assaulted by unknown thugs on April 25, 2005, while he was loading his car after leaving the nightclub where he worked. They forced him into the trunk of his car but then forced him into the front seat to help them shift gears after they were unable to operate the automatic transmission. One man continued to assault Martin while driving to another parking lot, and they continued their attack after they forced him out of the car. As they were leaving, they drove over his right foot.

The result of Thursday’s appeal court decision was that Martin’s actions against Certas were dismissed except for his claims for indemnification and accident benefits concerning the alleged injury to his right foot.

Noting that Certas was “mainly, but not entirely, successful on this appeal,” the court ruled that “a genuine issue requiring a trial exists” regarding Martin’s claims of injury to his right foot. Martin had claimed that in addition to a right foot injury, he had fractures to his hands, lacerations and contusions to his head. He also suffered psychological harm, including depression and anxiety. He filed an insurance claim, which Certas turned down, denying that Martin was involved in an “accident” as defined under section 2(1) of the Statutory Accident Benefits Schedule (SABS). Certas also denied his injuries were caused by the use or operation of an automobile. Martin then launched a lawsuit, suing several parties, including the nightclub, unknown assailants and Certas.

In May, 2011, Judge Douglas Gray of the Ontario Superior Court of Justice ruled in favour of Martin, citing among others, the cases of Amos v. Insurance Corp. of British Columbia and Downer v. Personal Insurance Co.

“Subsequent to the release of the Amos decision, the definition of ‘accident’ in what is now (Section 3(1)) of SABS was amended,” Judge Gray wrote. “For accidents before November 1, 1996, the term ‘accident’ was defined as ‘an incident in which, directly or indirectly, the use or operation of an automobile causes an impairment’.  Effective November 1, 1996, the words ‘or indirectly’ were deleted, and the current wording was substituted.”

Quoting from the judgment in the Downer case, Judge Gray noted a claimant’s injuries were “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.”

In the Downer case, an Ontario Superior Court judge noted the Feb. 2000 assault on Michael Downer while he was sitting in his car at a gas station “was not random but arose out of his ownership, use and operation of his vehicle” and he was therefore in an accident within the meaning of the SABS schedule. That ruling, in August, 2011, was later appealed.

Using the lower court judgment in Downer, Judge Gray concluded that Martin’s injuries were “directly connected” to the use and operation of his vehicle. 

“He was forced to assist one of the assailants in driving the car while the assaults were being committed; the car was driven to another parking lot where the assaults were continued; and the car was directly used to commit one of the assaults, namely, driving over his foot,” Judge Gray wrote.

In the Jan. 17 ruling, the Ontario Court of Appeal noted that as a result of the Amos case, there is a two-part test to determine whether an injury “arises out of the ownership, use or operation” of an automobile for the purpose of an insurer’s statutory obligation to provide no-fault benefits to its own insured.

The ‘purpose’ part of the test asks whether the accident resulted from “the ordinary and well-known activities” of automobiles. The second part, or causation part of the test, asks whether there is  “some nexus or causal relationship” between the injuries and the ownership, use or operation of the vehicle, or whether the connection between the injuries and the vehicle is “incidental or fortuitous.”

Certas argued Martin’s claims did not meet the causation test, and the Court of Appeal agreed that most of the injuries did not.

The appeal court cited two other Ontario Court of Appeal decisions, Chisholm v. Liberty Mutual Group and Greenhalgh v. ING Halifax Insurance Co., both of which involved the connection between injuries and the use and operation of vehicles.

“It is not enough to show that an automobile was somehow involved in the incident giving rise to the injury,” the Court of Appeal noted. “Rather, the use or operation of the automobile must have directly caused the injury.”

The court noted that forcing a driver into a trunk “is not in the ‘ordinary course of things’ associated with the use or operation of a vehicle.” Instead, the Court of Appeal said, the act is a form of assault.

“Even if it could be said that the striking of Mr. Martin’s head on the trunk of his car involved the ‘use’ of the car, that use was merely ancillary to the assaultive act of attempting to force him into the trunk of his vehicle, which directly caused the injury to Mr. Martin’s head.”