



COURT OF APPEAL FOR ONTARIO

CITATION:

Downer v. The
    Personal Insurance Company, 2012 ONCA 302

DATE: 20120509

DOCKET: C54313

Lang, LaForme JJ.A. and Pattillo J. (
ad hoc
)

BETWEEN

Michael Downer

Plaintiff (Respondent)

and

The Personal Insurance Company

Defendant (Appellant)

Ryan M. Naimark, for the appellant

John W. Bruggeman, for the respondent

Heard: February 17, 2012

On appeal from the judgment of Justice John C. Murray of
    the Superior Court of Justice, dated August 23, 2011, with reasons reported at
    2011 ONSC 4980.

H.S.
    LaForme J.A.:

INTRODUCTION

[1]

This appeal raises the question whether the motion
    judge erred in concluding that the plaintiff, Michael Downer, was involved in
    an accident within the meaning of s. 2(1) of the
Statutory
    Accident Benefits Schedule  Accidents on or after November 1, 1996
, O. Reg. 403/96 (
Schedule
).

[2]

The incident occurred on February 26, 2000 when the
    plaintiff was physically assaulted by several unidentified assailants while
    parked at a gas station. The plaintiff managed to escape by putting his car in
    gear and driving away. He believed that in doing so, he may have run over one
    of his assailants. The plaintiff claims psychological and physical injuries as
    a result of the incident.

[3]

Following the incident, the plaintiffs automobile
    insurer, The Personal Insurance Company of Canada (Personal), paid him
    monthly statutory accident benefits (SABs), including income replacement
    benefits, for some 26 months. However, Personal later advised him that it was
    terminating his benefits because the incident giving rise to his injuries was
    not an accident as defined in s. 2(1) of the
Schedule
. Section 2(1) defines an accident as an incident in which the use or
    operation of an automobile directly causes an impairment. Personal further advised
    that it was seeking repayment of all benefits paid to date because they were paid
    to him in error.

[4]

After a failed mediation before the Financial Services
    Commission of Ontario, the plaintiff commenced an action against Personal
    seeking a declaration that he is entitled to SABs and income replacement
    benefits
.
Personal later
    moved for summary judgment seeking to dismiss the action. The central issue on
    the motion was whether the plaintiff was involved in an accident within the
    meaning of s. 2(1) of the
Schedule
.
    The motion judge granted a declaration that the plaintiff was involved in an accident
    within the meaning of the
Schedule
.


[5]

Personal appeals from the motion judges decision and
    requests an o
rder declaring that the plaintiff was not
    involved in an accident as defined in s. 2(1) of the
Schedule
and
    further requests an order for summary judgment dismissing the plaintiffs
    claim.

[6]

For the reasons that follow, I would allow the appeal,
    in part, to the extent that I would grant a declaration that the
physical
    assault on the plaintiff does not constitute an accident under s. 2(1) of the
Schedule
.

[7]

However, the plaintiff also claims to have suffered
    psychological injuries, including depression, anxiety and post-traumatic stress
    disorder. It was uncontested on the motion that the plaintiff believed he may
    have run over one of his assailants as he fled the scene driving his vehicle. Since
    the plaintiffs alleged psychological injuries associated with this belief, if
    proven, may have been caused by an accident as defined in the
Schedule
,
    I would not dismiss this aspect of the plaintiffs claim.

[8]

In the circumstances, the issue whether the plaintiff
    was involved in an accident is a genuine issue requiring a trial. In
    addition, there are other issues in the action that the motion judge was not
    asked to decide on the motion for summary judgment. As a result, it is my view
    that the action must proceed to trial.

FACTUAL BACKGROUND

[9]

For purposes of the summary judgment motion, the
    parties agreed that the facts involving the incident were as described in
the plaintiffs written statement of March 9,
    2000, which he provided to the insurer in support of his claim for accident
    benefits (see the motion judges reasons, at para. 5). The pertinent facts may
    be summarized as follows.

[10]

On February 26, 2000, the plaintiff drove his jeep into a gas station
    to purchase gas. While his engine was running, and while seated in the car
    sorting money for the purpose of buying gas, he noticed three or four young men
    standing around his vehicle.  One of them called hey, and as the plaintiff
    turned to look, a man hit him from the drivers side. Another man came into his
    vehicle and repeatedly hit him on the head, while others tried to pull him out
    of the vehicle.

[11]

There was a brief struggle with one individual over control of the gear
    shift, but the plaintiff was able to reverse the vehicle and pull out of the
    gas station. He heard something when he pulled out and he thought he may have
    run over one of them. The men involved in the attack were not identified or
    apprehended.

[12]

The next
    day, the plaintiff reported the incident to Personal, which accepted his claim
    and paid him SABs, including
income replacement benefits,
totalling $73,061.27.

[13]

Some 17 months
    later, following a review of its files, Personal took the position that the
    plaintiff was not involved in an accident within the meaning of s. 2(1) of
    the
Schedule
. Personal notified the plaintiff by letter dated August
    3, 2001 that it had erroneously paid him benefits, that it would not pay him
    further benefits, and that it would be seeking a repayment of all benefits paid
    in error pursuant to s. 47(1) of the
Schedule
. Even after this letter
    was sent, Personal continued paying him benefits until May 2002.

[14]

The plaintiff commenced this action in July 2002 seeking, among other
    things, a declaration that he was and continues to be entitled to SABs.
    Personal filed a defence and counterclaim for the monies previously paid. The
    plaintiff filed a reply and defence to counterclaim raising the issue of
    estoppel.

[15]

On January 20, 2011, Personal moved for summary judgment seeking to
    dismiss the plaintiffs claim.

[16]

On the motion, the parties agreed that the central issue to be decided
    was whether the plaintiff had been involved in an accident within the meaning
    of s. 2(1) of the
Schedule
. The parties did not
    argue the question of whether the plaintiff had suffered an impairment, nor
    did they ask the motion judge to decide the issues of repayment and estoppel
    raised by Personals counterclaim.

REASONS OF THE MOTION JUDGE

[17]

The motion judge discussed the legislative history of and the relevant
    case law on the statutory definition of an accident in s. 2(1) of the
Schedule
.
    H
e
noted that accident was defined in the pre-November
    1, 1996 version of the
Schedule
as an incident in which,
directly
    or indirectly
, the use or operation of an automobile causes an impairment:
    see
Statutory Accident Benefits Schedule  Accidents after December 31, 1993
    and before November 1, 1996
, O. Reg. 776/93, s. 1 (emphasis added). He
    recognized that the definition of accident was replaced by the more
    restrictive definition in s. 2(1) the
Schedule
, which defines an
    accident as
an incident in which the use or operation of an
    automobile
directly
causes an impairment
    (emphasis added).


[18]

The motion judge explained that the Supreme Court of Canada in
Amos
    v. Insurance Corp. of British Columbia
,

[1995] 3
    S.C.R. 405, established a two-part test for determining if an incident gives
    rise to accident benefits under automobile insurance policies. The British
    Columbia automobile insurance statute considered in
Amos
provided for benefits payable in respect of death or
    injury caused by an accident that arises out of the ownership, use or operation
    of a vehicle. As the motion judge said, at para. 11, the two-part test under
Amos
is as follows:

1) Did the accident result from the ordinary and well-known
    activities to which automobiles are put? (the purpose test); and

2) Is there some nexus or causal relationship (not necessarily
    a direct or proximate causal relationship) between the plaintiffs injuries and
    the ownership, use or operation of his vehicle, or is the connection between
    the injuries and the ownership, use or operation of the vehicle merely
    incidental or fortuitous? (the causation test).

[19]

The
    motion judge went on to explain that, after the
narrower
    definition of accident was introduced in 1996, t
his court in
Chisholm v. Liberty Mutual
    Group
(2002), 60 O.R. (3d) 776 (C.A.) and in
Greenhalgh
    v. ING Halifax Insurance Co.
(2004),
    72 O.R. (3d) 338 (C.A.),
modified the
causation test
from
Amos
.  The motion judge,
at para. 12,
framed the modified causation test
as follows:
    Is there a direct or proximate causal relationship between the plaintiffs
    injuries and the ownership, use or operation of his vehicle or is the
    connection between the injuries and the ownership, use or operation of the
    vehicle, indirect or merely incidental or fortuitous?

[20]

Based on this test,
the motion judge held that
t
he
    purpose test was met because pulling into a gas station in order to purchase
    fuel is an activity to which all vehicles are put (at para. 14).
He decided that the causation test was also met because
there is a direct or proximate causal relationship between the
    plaintiff's injuries and the ownership, use or operation of his vehicle (at
    para. 15). In reaching this conclusion, the motion judge made the following
    findings, at para. 21:

In the case at bar, the use of the car had not
    ended before injury was suffered.  The insured had not physically left the
    car but was in his vehicle and the engine was running when he was assaulted. 
    There was no temporal distance between the end of the use of the car and the
    injuries.  The logical and probable inference from the facts is that the
    assailants were intent on taking possession of and seizing control of Mr.
    Downers vehicle while Mr. Downer was in possession and control of his
    vehicle.  The injuries suffered in this case are not analogous to the
    injuries caused by a random gunshot in a drive-by shooting, as in
Chisholm,
where there was no causal relationship between the claimants injuries and the
    operation of his car.  The injuries caused to Mr. Downer are 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.  The assault on Mr. Downer was not random but arose out of his
    ownership, use and operation of his vehicle.  As in
Amos
, it was
    the use or operation of his own vehicle that put Mr. Downer in harms
    way.

[21]

The motion
    judge said that the reasons in the above-cited paragraph are sufficient to find
    that the plaintiff was involved in an accident within the meaning of the
Schedule
.
However, he went on to point out, at para. 22, that the plaintiff claims
    to have suffered depression, anxiety and post-traumatic stress disorder.  In
    his statement, the plaintiff referred to his belief that he may have run over
    one of the assailants with his motor vehicle. The motion judge observed: To the
    extent that this belief may contribute to depression, anxiety and
    post-traumatic stress disorder or any other psychological condition, it is
    clear that it is a direct consequence of the use or operation of his motor
    vehicle.

[22]

Finally,
    the motion judge referred to the Supreme Court of Canadas decision in
Citadel
    General Assurance Co. v. Vytlingam
, 2007 SCC 46, [2007] 3 S.C.R. 373. In
    that case, two individuals dropped a large boulder from an overpass onto the
    Vytlingams vehicle, causing permanent catastrophic injuries to the driver and
    serious psychological harm to two family members in the vehicle. The issue
    before the Supreme Court was whether one of the tortfeasors, whose conduct was
    the subject matter of an indemnity claim, was at fault as a motorist for
    purposes of the inadequately insured motorist coverage under Ontario Policy
    Change Form 44R  Family Protection Coverage.

[23]

Writing
    for the court, Binnie J. made the comment, at para. 14, that there is no doubt
    that the Vytlingams were entitled to no-fault benefits since they were using
    their car for an ordinary and well-known motoring activity in driving north
    on Interstate 95, and that the injuries they suffered were related to such use
    and operation. Binnie J. stated that 
Amos
clearly established the
    Vytlingams entitlement to statutory benefits.

[24]

Counsel
    for the plaintiff in this case submits that Binnie J. was aware of the change
    in the definition of accident when he said that there is no doubt that the
    Vytlingams were entitled to no-fault benefits. The incident in question in
Vytlingam
occurred in 1999, when the more restrictive definition of accident in s. 2(1)
    of the
Schedule
was in effect
.

[25]

The motion
    judge made it clear, at para. 24, that he was not relying on
Vytlingam
in concluding that there is a direct or proximate causal relationship between
    the plaintiffs injuries and his ownership, use or operation of his vehicle. 
    However, he said that if counsel for the plaintiffs interpretation of this
    decision is correct, it is very strong authority in support of his argument on
    behalf of the plaintiff.

ISSUES

[26]

On the appeal from the motion judges order
    dismissing the motion for summary judgment,
[1]
Personals central argument is that the motion judge erred in concluding that
    the plaintiff was involved in an accident within the meaning of the
Schedule
. However, Personal also submits that the motion judge failed to
    address the issue of estoppel raised by the plaintiff in his affidavit filed in
    response to the motion.

[27]

This argument is not properly raised on the
    appeal. Counsel on the motion  the same counsel who argued this appeal 
    agreed that the central issue for the motion judge to decide was whether the
    plaintiff had been involved in an accident within the meaning of the
Schedule
. The motion judge referred to counsels agreement at para. 4 of his
    reasons and went on to say: [A]lthough the motion is for summary judgment,
    this Court is asked to decide a question of law and counsel are agreed that I
    should deal with this issue and none of the other issues in dispute.

[28]

Based on counsels agreement, the motion judge
    did not consider any of the other issues in dispute, including the plaintiffs
    estoppel argument, Personals counterclaim seeking to recover previously paid
    accident benefits, and Personals contention that the plaintiff did not suffer
    any impairment within the meaning of the
Schedule
. It would be inappropriate for this court to decide a ground of
    appeal concerning an issue that was not argued before the motion judge.

DISCUSSION

[29]

The motion for summary judgment raised a narrow question of law
    that was to be determined on the basis of undisputed facts (see the motion judges
    reasons, at para. 5). The applicable standard of review in these circumstances
    is correctness: see this courts decision in
Combined Air Mechanical
    Services Inc. v. Flesch
,
2011
    ONCA 764, 108 O.R. (3d) 1, at para. 70; and
Bell
Canada v. The Plan Group
, 2009 ONCA 548, 96 O.R. (3d) 81, at paras. 27 and 33.

[30]

In my view, Personals motion fell into the second
    category of cases referred to in
Combined Air
, at para. 42, involving claims or defences that are
    alleged to be wholly without merit. Personals position was that, based on the
    uncontested evidence on the motion for summary judgment, the plaintiffs claim
    should be found wholly without merit because he was not involved in an
    accident within the meaning of s. 2(1) of the
Schedule
.
The
    motion was thus limited to a narrow question of law that was argued on the
    basis of the pleadings as supplemented by a very limited body of undisputed
    evidence. In other words, there was little to distinguish Personals motion for
    summary judgment from a motion under rule 21.01(1)(a)
of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
.

[31]

To resolve the central issue of statutory
    interpretation as framed by Personal and as argued by the parties, the motion
    judge did not need to exercise the enhanced powers conferred by rules
    20.04(2.1) or (2.2), which permit the motion judge to weigh the evidence,
    evaluate credibility, draw reasonable inferences from the evidence, and order
    the presentation of oral evidence. To the limited extent that the motion judge
    drew an inference from the evidence, he did so regarding the motive of the
    assailants in assaulting the plaintiff. As will be explained below, the issue
    of motive was irrelevant to the question of law before the motion judge.

[32]

In
    rejecting Personals argument that the plaintiffs claim had no chance of
    success, the motion judge decided the question of law in favour of the
    plaintiff and concluded that he was involved in an accident within the
    meaning of s. 2(1) of the
Schedule
. In my view, the motion judge erred
    in how he resolved this question of law on the agreed facts before him.
    Specifically, he erred in concluding that the causation test was satisfied in
    relation to the injuries caused by the assault on the plaintiff while he was
    parked at the gas station.

[33]

The source
    of the motion judges error is attributable to the way he framed the causation
    test. He failed to use the language from
Greenhalgh
and, instead, he
    incorrectly articulated a version of the causation test that tracks much of the
    language from
Amos
. In the motion judges words, at para. 12, the
    modified causation test is as follows:

Is there a direct or proximate causal relationship between the
    plaintiffs injuries and the ownership, use or operation of his vehicle or is
    the connection between the injuries and the ownership, use or operation of the
    vehicle, indirect or merely incidental or fortuitous?

[34]

However,
    the actual wording of the causation test as stated in
Greenhalgh
, at
    para. 36, consists of two questions:

1. Was the use or operation of the vehicle a cause of the
    injuries?

2. If the use or operation of a vehicle was a cause of the injuries,
    was there an intervening act or intervening acts that resulted in the injuries
    that cannot be said to be part of the ordinary course of things?  In that
    sense, can it be said that the use or operation of the vehicle was a direct
    cause of the injuries?

[35]

The
    motion judges statement of the causation test reveals two errors.  First, it
    erroneously refers to ownership, even though s. 2(1) of the
Schedule
only
    refers only to use or operation of the vehicle.
[2]
Second, the motion judge failed to ask whether an intervening act outside the
    ordinary course of things resulted in the injuries.

[36]

Both
    errors are apparent in the motion judges conclusion that there was a causal
    connection between the assault on the plaintiff and his ownership, use and
    operation of his vehicle. The motion judge found this causal connection was
    established based on the undisputed fact that the plaintiff was seated in his
    vehicle with the engine running when he was assaulted, and on the logical and
    probable inference that the assailants wanted to seize possession and control
    of his automobile (at para. 21). According to the motion judge, this motive
    meant that the attack on the plaintiff
was not random but arose
    out of his ownership, use and operation of his vehicle.

[37]

It is
    questionable if the evidence was reasonably capable of supporting the inference
    of motive drawn by the motion judge and attributed to the assailants. In any
    event, in my view, the motion judge erred in law by relying on the location of
    the attack and on the inferred motive of the assailants as proving that there
    is a direct causal relationship between the injuries suffered during the attack
    and the use or operation of a motor vehicle.

[38]

The
    factual inference drawn by the motion judge regarding the assailants purported
    motive was only capable of supporting the proposition that, but for the
    plaintiffs use or operation of the vehicle, he would not have been assaulted.
    However, as this court explained in
Greenhalgh
, at para. 37: [T]he
    but for test only serves to eliminate from consideration factually irrelevant
    causes, but does not conclusively establish legal causation.

[39]

Under the
    modified causation test from
Chisholm
and
Greenhalgh
, it is
    not enough to show that an automobile was the location of an injury inflicted
    by tortfeasors, or that the automobile was somehow involved in the incident
    giving rise to the injury. Rather, the use or operation of the automobile must
    have directly caused the injury.

[40]

Laskin
    J.A.s reasons in
Chisholm
illustrate this point.  In
    that case, a driver was catastrophically injured by gun shots while driving his
    car. Laskin J.A. explained, at para. 29, that the gun shots caused the
    impairment suffered by the driver, not the use or operation of the vehicle:

[E]ven accepting that the use of Chisholms car
    was a cause of his impairment, a later intervening act occurred.  He was shot. 
    An intervening act may not absolve an insurer of liability for no-fault
    benefits if it can fairly be considered a normal incident of the risk created
    by the use or operation of the car -- if it is part of the ordinary course of
    things. ... Gun shots from an unknown assailant can hardly be considered an
    intervening act in the ordinary course of things. The gun shots were the
    direct cause of his impairment, not his use of the car. [Citation omitted.]

[41]

Similarly in this case, the assault on the plaintiff as he sat in his
    car sorting his money cannot fairly be considered as a normal incident of the
    risk created by the use or operation of the car.

[42]

Before concluding on this point, I note
    that while the motion judge did not rely on
Vytling
am
in concluding that
    the plaintiff was involved in an accident within the meaning of s. 2(1) of
    the
Schedu
le
, plaintiffs counsel pressed the relevance of this decision
    on appeal. In my view,
Vytling
am
is not binding authority on the point of law in issue here.
    The court in that case was not required to consider the meaning of the definition
    of accident in s. 2(1) of the
Schedu
le
and was not purporting to decide whether the Vytlingams
    injuries were directly caused by the use or operation of their automobile.
    Significantly, in making the comment that 
Am
os
clearly established the
    Vytlingams entitlement to statutory benefits, Binnie J. did not refer to this
    courts rejection of the
Am
os
causation test in
Chisho
lm
and
Greenhal
gh
.

[43]

The motion judge thus erred in
    concluding that the plaintiffs injuries from the assault were the result of an
    accident within the meaning of s. 2(1) of the
Schedule
. The governing appellate authority on the causation test
    for defining an accident under s. 2(1) of the
Schedule
makes it plain and obvious on the agreed facts that the
    plaintiffs injuries  insofar as they were caused by the assault  were not
    directly caused by the use or operation of his vehicle, but rather were caused
    by an intervening act in the form of an assault that cannot be said to have been
    part of the ordinary course of things.

[44]

However, I take a different view in
    connection with the plaintiffs belief that he may have run over one of his
    assailants and the psychological impairment that he may have suffered as a
    result of this belief.

[45]

The motion judge referred to the plaintiffs belief that he may
    have run over one of his attackers when he drove away from the scene as another
    element of the incident in question. The motion judge stated, at para. 22,
    that, [t]o the extent that this belief may contribute to depression, anxiety
    and post-traumatic stress disorder or any other psychological condition, it is
    clear that it is a direct consequence of the use or operation of his motor
    vehicle.

[46]

On the appeal, Personal
    submits that there is no independent evidence that the plaintiff actually ran
    over anyone or that his psychological conditions were caused by this belief. According
    to Personal, the onus was on the plaintiff to put this evidence forward on the
    motion for summary judgment.

[47]

I do not agree with
    Personals position for two reasons. First, while the medical evidence dealing
    with psychological impairment did not distinguish between the causes, the
    plaintiffs evidence in his affidavit filed in response to the motion was that
    he was very stressed and nervous after the incident, in part because he thought
    that he may have killed someone or seriously injured a person by running over
    them.

[48]

The second and more
    important reason is the way in which the parties argued the motion. The
    plaintiff was not seeking summary judgment by way of cross-motion and, as noted
    by the motion judge at para. 4, Personal did not ask him to decide the
    impairment issue on a summary basis. The motion judge reinforced this point at
    para. 22:

I am cognizant that impairment is an issue in
    this case and I am not, by the remarks that follow, intending to comment on
    whether the plaintiff was or is impaired.

[49]

The motion judge therefore
    simply assumed, without deciding, that there was a possibility that the
    plaintiffs
belief that he ran over one of his
    assailants may have contributed to his alleged psychological impairments. I
    agree that r
unning over someone can
    fairly be considered as a normal incident of the risk created by the use or
    operation of a vehicle.

[50]

Any resulting psychological
    impairment from such an incident could be 
a
    direct consequence of the use or operation of his motor vehicle
. The motion judges comments, at para. 22, which
    I agree with, help to illustrate this application of the causation test:

What if, while fleeing the assailants on the way
    out of the gas station, Mr. Downer had hit an innocent pedestrian with his
    vehicle?  Would any trauma suffered as a result be a direct consequence of the
    operation of the motor vehicle?  Surely the answer is yes.

[51]

Whether or not the plaintiff actually suffered
    the psychological injuries that he complains of, and whether or not such
    injuries were caused by his belief that he may have run over one of the
    assailants, were not issues before the motion judge. Personal was not
    challenging the accuracy or veracity of the plaintiffs evidence or the
    existence of his alleged impairments. And the plaintiff was thus not required
    to file supporting evidence from experts to establish his psychological
    impairments or the causes thereof on the motion.

[52]

The issues whether the plaintiff believed he may
    have run over someone, and whether such belief actually caused him to suffer
    any of the psychological injuries he complains of, remain to be determined
    along with the other issues in dispute between the parties that were not raised
    on the motion for summary judgment, such as Personals counterclaim for
    repayment of benefits and estoppel.

DISPOSITION

[53]

For these reasons, I would allow the appeal, in part, to the
    extent that I would set aside the motion judges declaration and, in its place,
    I would grant a declaration that the physical assault on the plaintiff does not
    constitute an accident under s. 2(1) of the
Schedule
. To the extent
    the plaintiffs claim is for a declaration that he is entitled to SABs and
    income replacement benefits arising from the physical assault, I would grant
    summary judgment in favour of Personal and dismiss this part of the plaintiffs
    claim.

[54]

However, I would dismiss the motion for summary judgment to the
    extent the plaintiff claims entitlement to accident benefits based on
    psychological impairments arising from his evidence that he ran over someone
    during the incident of February 26, 2000.
Given how the motion
    for summary judgment was argued, the question whether the plaintiff was
    involved in an accident in this respect is a genuine issue requiring a trial,
    as are the issues that the motion judge was not asked to decide, such as
    repayment of benefits and estoppel.
The plaintiff may bring a motion in
    the Superior Court of Justice to amend the pleadings in accordance with these
    reasons.

[55]

Because I have set aside the declaration granted by the
    motion judge, I would set aside the motion judges costs award and in its place
    make an order for no costs of the motion. Given the divided success on the
    appeal, I would also make no order for costs of the appeal.

Released:  HSL                                H.S.
    LaForme J.A.

MAY -9 2012                                    I agree
    S.E. Lang J.A.

I
    agree L.A. Pattillo J. (
ad hoc
)





[1]
The parties agree, as do I, that the motion judges order dismissing the motion
    for summary judgment is a final order.  An order dismissing a motion for
    summary judgment on a question of law, where the only genuine issue is the
    question of law, gives rise to
res judicata
and, hence, is a final
    order:
R.S. v. R.H.
(2000), 52 O.R. (3d) 152 (C.A.), at para. 21.



[2]
For ease of reference, s. 2(1) of the
Schedule
defines an accident as
    an incident in which the use or operation of an automobile directly causes an
    impairment.


