Volume. 8 Issue. 13 – April 3, 2024
The court considers whether the Tribunal correctly determined that an applicant was involved in an “accident” as defined under the Schedule. Ultimately, it was determined that for the described incident, there were two distinct phases, injuries allegedly caused by an assault and injuries allegedly arising from the subsequent loss of control of the vehicle that informed the court’s interpretation.
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Court Sends Matter Back to Tribunal Concerning “Accident”
A Two Phase Incident – In a June 2019 accident, the Applicant Jiang was assaulted by her husband while driving, and as a result she lost control of the vehicle, hitting the curb and striking her head against the roof of the vehicle. In Jiang v The Co-operators, Jiang appealed to the court as a result of the Tribunal finding that she was not involved in an accident as defined under the Schedule. The Tribunal had found (upheld upon reconsideration) that the incident did not meet the definition of “accident” as “the assault was an intervening event which broke the chain of events; and the dominant feature of her alleged injuries was the assault, and the use or operation of the vehicle was ancillary to the assault.”
The court allowed the appeal in part, dismissing the appeal to the extent that the appellant claims entitlement to accident benefits based on injuries caused by the assault. The finding that “the assault was an intervening act that led to her injuries in the first phase of the incident and not the use or operation of the automobile is a finding of fact and law and is not an extricable question of law in this case over which this court has jurisdiction.”
However, with respect to the claim for entitlement to accident benefits based on injuries allegedly caused by the loss of control of the automobile, “the adjudicator stated the causation test correctly, but, she did not follow the principles she enunciated”. The court found that in applying the “intervening cause” provision, the Tribunal “ignored that there were two phases to the incident—injuries allegedly caused by an assault and injuries allegedly arising from the subsequent loss of control of the vehicle. She failed to give reasons for why the road accident was also not a direct cause of the injuries… she ignored that there were two phases with separate dominant features.”
The finding that the intervening assault broke the chain of causation such that there was no need to address injuries sustained by the resultant loss of control of the vehicle was an “extricable error of law; the adjudicator erred in her characterization of the legal standard for causation.” The court found that the “alleged injuries after losing control of the automobile and striking her head may have been directly caused by the use or operation of an automobile and meet the definition of “an accident” as defined in Schedule 1. The issue is a genuine issue requiring a hearing.” The “issues of whether and to what extent the appellant’s injuries were sustained as a result of her loss of control of her vehicle following the assault remain to be determined at a hearing.”
There were in fact “two issues raised in the appellant’s appeal which can be properly characterized as errors of law:
- Whether the adjudicator erred in finding that the intervening event of the assault broke the chain of events to a second event of the loss of control of the vehicle; and
- Whether the adjudicator erred in failing to consider that there could be two dominant features of the incident.”
The court confirmed that “the erroneous findings in regard to these two issues caused the adjudicator not to consider whether the appellant’s alleged injuries as a result of the loss of control of the vehicle was an “accident”. It follows that the adjudicator made an error of law in her characterization of the legal standard for causation in regard to which this court has jurisdiction.”
It was further confirmed that there was an “Error in finding intervening cause broke chain of events to a second event which could meet the definition of “accident”. The Tribunal “erred in law in concluding that “the later intervening act” of the assault broke the chain of events to a second event– the appellant’s alleged injuries arising from the subsequent loss of control of the vehicle which could meet the definition of “accident”. The adjudicator gave no reasons for her bald conclusion and cited no authority for finding that the assault broke the chain of events to an ensuing road accident where injuries might have arisen.”
Further, the Tribunal failed to consider that there can be two separate phases of an incident, being the assault followed by the loss of control of the vehicle. With respect to allegations of injuries following the loss of control, it was the position of The Co-operators that Jiang’s evidence “was not reliable and should not be relied upon.” However, in the decisions rendered, the Tribunal “declined to make any findings in regard to the appellant’s credibility. Having made no credibility findings, it cannot be assumed that the adjudicator concluded that the appellant did not injure herself in the way that she alleges after her loss of control of the vehicle.”
Accordingly, “the issues of whether and to what extent the appellant’s injuries were sustained as a result of her loss of control of her vehicle following the assault remain to be determined at a hearing. The adjudicator erred in law in failing to consider the two phases of the incident.” Therefore, the appeal was allowed to have the matter remitted back to the Tribunal to determine whether there were in fact compensable injuries as a direct result of the loss of control. Costs in the amount of $5,000 were awarded to Jiang.
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