Injured During A Fight On A Bus – Not An 'Accident' For The Purposes Of The 'Statutory Accident Benefits Schedule'

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.1 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, [1995] 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...