This is a decision over the definition of “accident” in the SABS. This case has a long history. The claimant and the insurer disagreed over whether an accident occurred. The claimant was working as a crew member of a television production company in downtown Toronto. Her job was to keep watch over three dedicated parking spaces, two of which were occupied by company trucks at the time of the incident. A vehicle pulled into the third space. The claimant approached the vehicle to advise the driver that he could not remain in the spot. The driver insisted that he was not parking but then turned off his engine. The claimant told the driver for a second time that he could not park in the spot. The driver became irate and yelled at the claimant. The driver then opened his door and intentionally struck the claimant with the vehicle’s door on the claimant’s forearms and left knee. The claimant backed away. The driver then exited the vehicle and shut the door. He proceeded to approach the claimant and punched her in the face three times, striking her right cheek and jaw as she stepped backwards. The assault only stopped when a bystander intervened. The driver was charged and convicted of criminal assault. As a result of the incident involving the car door, the claimant sustained physical injuries to her forearms and left knee. Her physical injuries resolved. However, as a result of the assault, the claimant sustained bruising and tenderness to her face, was diagnosed with benign particulate vertigo, complains of headaches and, in the years since the incident, contends that she has developed psychological impairments in the form of panic attacks, fear of men, fear generally, anxiety, dizziness and memory issues. She has sought counselling for these specific issues. Intact accepted that the physical injuries were caused by an “accident” but that the psychological issues were caused by the assault, which did not form part of an “accident.” A preliminary issue hearing was held, and a decision was released by the Tribunal on February 2, 2018 holding that the claimant was in an accident. Intact requested judicial review of the decision. In a decision dated October 31, 2018, the Divisional Court quashed the Tribunal’s preliminary issue decision and ordered a new hearing. In this decision, Adjudicator Boyce reviewed the facts of the case and held that the second part of the incident, being the assault, was a separate incident that did not involve a vehicle in any way. Adjudicator Boyce held that the case law supported that the assault did not meet either the Purpose Test or the Causation Test and therefore did not qualify as an “accident” under the SABS.
Menu