Category: Accident Definition

Pourkhodaya v. The Personal Insurance Company (2024 ONSC 6019)

The claimant appealed and sought judicial review of the Tribunal’s decision that she was not involved in an “accident” as defined in the SABS. The claimant suffered an aneurysm in 2020 incident in which she was in a vehicle that was being pursued and harassed by a group of motorcyclists. There was no collision or contact between any of the vehicles. The aneurysm was caused by intense stress caused by the incident. The aneurysm resulted in a spinal cord hemorrhage, leaving the claimant paraplegic. The Tribunal found that the incident did not qualify as an accident because the causation test was not met. The Court granted the appeal and remitted the matter to the Tribunal for a new hearing. The Court found that the Tribunal’s decision was based on an unreasonable and unfair review of the expert evidence as to the cause of the aneurysm, and the Tribunal improperly relied upon the insurer’s expert. The Tribunal also erred in its analysis of the intervening cause question and dominant feature question.

Davis v. Aviva General Insurance Co. (2024 ONSC 3054)

The claimant appealed the Tribunal’s decision that she was not involved in an “accident” when she slipped on ice while in the process of getting into her vehicle. The claimant also argued that the insurer’s decision to raise that issue more than three years after the accident was procedurally unfair. The Court granted the appeal and ordered a hearing with respect to the disputed benefits. The Court found that the facts of loss supported the conclusion that the claimant was involved in an “accident”. Slipping on black ice while she had the electronic fob in her hand to open and enter her car was part of the use of a motor vehicle. The claimant was close enough to the car that her leg came to rest under the front driver’s side wheel. The Court also noted in its decision that the Tribunal has equitable powers, and can act to prevent an abuse of process. However, the Court found that the Tribunal did not err in allowing the insurer to raise the argument about whether the facts of loss constituted an “accident”.

Travis v. Aviva Insurance Company (2024 ONSC 1683)

The claimant appealed the Tribunal’s decision that his injuries were not the result of an accident. The claimant was a firefighter who responded to the 2018 van attacks in Toronto where 10 people were killed. The claimant arrived at the scene after the incident, and was confronted with the bodies of the deceased and injured victims. He suffered psychological trauma as a result. He initially applied to WSIB, but was eventually denied after he was found capable of returning to work. He then applied for accident benefits. The Court dismissed the appeal, holding that the Tribunal correctly concluded that the claimant’s injuries were not a direct result of the use and operation of a vehicle. The firetruck that brought the claimant to the scene of the accident did not cause the claimant’s injuries, and the rental van was not in use by the time the claimant arrived at the scene.

Jiang v. The Co-operators General Insurance Company (2024 ONSC 1225)

The claimant appealed the Tribunal’s decision that she was not involved in an accident. The claimant sustained injuries when she was driving and her husband physically assaulted her. She subsequently lost control of her vehicle and hit the curb. The Tribunal held that the assault was an intervening event that broke the chain of events, and that the dominant feature of her alleged injuries was the assault, while the use or operation of the vehicle was ancillary. The Court partially reversed the Tribunal, holding that the claimant’s alleged injuries after losing control of her vehicle may have been directly caused by the use or operation of an automobile and therefore might be considered an “accident”. The issues of whether and to what extent the claimant’s injuries were sustained as a result of her loss of control of the vehicle were remitted to the Tribunal to be determined at a hearing.

Pinera v. Motor Vehicle Accident Claims Fund (2023 ONSC 3155)

The claimant appealed the Tribunal’s decision that he was not involved in an accident. The Court dismissed the appeal, holding that the Tribunal’s reasons had no error of law, and that the claimant’s appeal was largely an attempt to relitigate the factual issues that were before the adjudicator.

Cesario v. Intact Insurance Company (22-003001)

The claimant slipped and fell on ice while she was entering her vehicle in a Costco parking lot on December 16, 2019. She opened the door and was entering her vehicle when she slipped on a patch of ice. She grasped the door with her left hand before she fell and struck her back on the vehicle’s door frame. The insurer denied her application for accident benefits. The claimant commenced a LAT application, and the parties proceeded to a written hearing concerning the preliminary issue of whether the claimant’s injuries resulted from an “accident” as defined in the SABS. Adjudicator Kaur found that the slip and fall incident was not an “accident”, as the ice that had caused the claimant’s fall constituted an intervening cause which broke the chain of causation, and because it was the ice on which the claimant slipped, and not her operation or use of the vehicle, which constituted the dominant feature of the incident. This decision now needs to be considered in the context of the recent Divisional Court decision in Davis v. Aviva General Insurance Co. 2024 ONSC 3054.

Balon v. BelairDirect (22-001100)

The claimant was involved in an ATV accident and sought benefits pursuant to the SABS. The preliminary issue to be considered at the hearing was whether the incident the claimant was involved in was considered an accident. The adjudicator found that the claimant was not involved in an accident pursuant to s. 3 of the SABS. The ATV was being used on private property and was subject to the Off -Road Vehicles Act. This legislation states that the claimant is entitled to claim accident benefits if an ATV was required to be insured under section 15 of the ORVA. In Adams v. Pineland Amusements Ltd. (“Adams”), 2007 ONCA 844, the Court of Appeal adopted a three-part test set out in Grummett v. Federation Insurance Co. of Canada, 1999 CanLII 15103 (ONSC) to determine whether a vehicle is an automobile. Under the Grummett test, a vehicle is an “automobile” when (a) it is an “automobile” in common parlance; (b) it is defined as an “automobile” in a policy of insurance; and (c) it falls within any enlarged definition of “automobile” in any relevant statute. The claimant did not meet the Grummett test as jurisprudence established that an ATV is not considered to be an “automobile” in the ordinary sense of the word. The claimant did not provide any evidence that defines the ATV as an automobile in an insurance policy. The Respondent submitted the insurance policy of the ATV’s owner, and the ATV was not covered under this policy. The analysis then turned to the third part of the test. The claimant submitted that the ATV on which she was riding was compelled to carry a motor vehicle liability policy on it as per the Insurance Act, the ORVA and the Compulsory Automobile Insurance Act, R.S.O. 1990, c.C.25, and due to this requirement, the ATV in question was deemed to be an “automobile”. The Respondent argued that an ATV would only require insurance if it was operating on a highway and not on her friend’s private property. The claimant did not provide compelling evidence to show that the incident took place on a roadway. Therefore, the claimant failed on the third part of the Grummett test, as she did not demonstrate the ATV fell within any enlarged definition of “automobile” in any relevant statute. The application was dismissed as the incident was not considered an accident.

Pec v Certas Direct Insurance (21-009610)

The claimant claimed accident benefits in relation to injuries sustained in a confrontation after an alleged road rage incident. The insurer argued that this did not constitute an “accident” under the SABS. The adjudicator, applying a two-part test, found that while the incident arose from the use of the vehicle, the injuries were not directly caused by it. Instead, they resulted from an intervening act, the physical altercation, which was not an ordinary risk associated with vehicle use. The adjudicator concluded that the use of the vehicle was ancillary to the altercation and not the dominant feature causing the injuries, ultimately denying the applicant’s claim for accident benefits. The appeal was dismissed.

Gray v. Intact Insurance (21-008634)

This is a preliminary issue decision. The claimant applied for accident benefits following an incident in August 2019. The applicant was in her home when a vehicle struck a house a few doors down. A large natural gas explosion occurred at the impacted house. The claimant alleged she sustained psychological impairments as a result of the incident. The insurer denied the claim on the basis that the claimant was not involved in an accident as defined by the SABS. Adjudicator Kaur held that the jurisprudence has established that a person who sees or hears an accident is not a person who is involved in an accident. Adjudicator Kaur found that the claimant was not involved in an accident and dismissed the application.

Howes v, CAA Insurance Company (21-012279)

This is a preliminary issue decision. The claimant applied for accident benefits following an incident in February 2019. She was asleep at home when a truck drove into her house, destroying her dining room and kitchen. She alleged that she was injured when a large mirror fell down on her as a result of the incident. The insurer denied the claim on the basis that the claimant was not involved in an accident as defined by the SABS. Adjudicator Kaur found that the truck was no longer in use and operation by the time the impairments were established and held that an insurer should not be responsible for any impairments that arise out of the aftermath of an accident that has already occurred. Adjudicator Kaur found that the claimant was not involved in an accident and dismissed the application.