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.

Madore v. Intact Insurance Company (2023 ONSC 11)

The claimant appealed the Tribunal’s decision that he was not involved in an “accident” as defined in the SABS. The claimant had been inspecting and cleaning the roof of his camper trailer, which was hitched to his pickup truck. In the course of cleaning the trailer, the claimant fell to the ground, suffering serious injuries to his head. The Tribunal had found that the “causation” test was not met because there was no direct evidence that the trailer caused the claimant’s fall, and that there was an intervening act, namely the loss of footing, which was not part of the ordinary course of things. The Court reversed the Tribunal’s decision, holding that the Tribunal erred in requiring the claimant to show that the incident was caused by tripping on the trailer or that the injuries were directly caused by the trailer to establish direct causation of the injuries. The fact that the claimant was injured in the course of cleaning and inspecting the roof of the trailer was sufficient to prove that the use and operation of an automobile caused the claimant’s impairments; there was no need to prove a direct physical connection between the cause of the injury and an automobile.

Degazio v. Bertie and Clinton Mutual Insurance Company (21-008359)

The claimant applied for accident benefits arising out of an incident. While the claimant was sleeping in his living room, another vehicle collided with the claimant’s vehicle and struck a corner of the claimant’s home. He did not see the accident occur. The claimant alleged that he sustained psychological and emotional injuries as a result of the incident. The insurer refused to accept that the claimant was involved in an accident. Adjudicator Kaur found that the applicant was not involved in an accident, as he did not witness the accident and was not injured in the process. He only observed the aftermath. The claimant was not related to the anyone involved in the accident, and was not able to claim that the accident caused him nervous shock.

Sorouri v. Intact Insurance Company (20-003723)

The claimant applied for accident benefits after he was assaulted while working an Uber driver on March 24, 2019. After he had picked up four passengers, multiple assailants surrounded his vehicle and attempted to remove a female passenger from the rear passenger seats. One assailant allegedly punched the claimant’s face and pulled and twisted his left hand in an attempt to remove him from the vehicle. At least six other assailants surrounded the claimant’s vehicle and broke the driver’s door and window, the rear driver’s window, the back windshield, the side mirrors, and the rear camera. The claimant argued that he had been involved in an “accident” as defined by the SABS and was entitled to benefits for physical and psychological therapy. Adjudicator Kepman held that the claimant had not been involved in an “accident”. She accepted that the incident involved the use or operation of a vehicle, as the claimant was picking up passengers as part of his role as an Uber driver. Adjudicator Kepman agreed that the claimant would not have had his arm twisted and injured “but for” the use of his vehicle as a seated and belted driver. Finally, she acknowledged that the assault did not constitute an intervening act that broke the chain of causation because the assault had occurred simultaneously while the claimant continued to operate his vehicle. However, Adjudicator Kepman found that the claimant had not demonstrated that the use or operation of his vehicle was the dominant feature of the incident. Rather, she found that his injuries had been caused by the assault and dismissed his application.

Bustin v. Economical Insurance Company (20-007017)

The claimant sought entitlement to accident benefits after witnessing a fatal collision on October 13, 2019. He claimed that he had been involved in the accident and was an “insured person” as defined in the SABS. The claimant had been sitting on the porch of his aunt’s home when two vehicles struck one another in a head-on collision, killing two occupants in one of the vehicles. He claimed that he had witnessed the deceased pair being extracted from their vehicle and covered with white cloth. He argued that he had been involved in the accident because he had developed psychological injuries as a result of witnessing the accident. Adjudicator Norris found that the claimant was not involved in the accident and was therefore not an “insured person” under the SABS. He noted that witnessing the accident and its aftermath did not constitute being involved in an accident. In addition, Adjudicator Norris found that the claimant was not entitled to claim for “nervous shock” under the SABS because he had not been related to anyone involved in the accident. The claimant’s application for benefits was dismissed.

Monteiro v. Novex Insurance Company (21-00261)

The insurer brought a preliminary motion to address whether or not the claimant was involved in an accident as defined in the Schedule. The claimant had started her car and brushed off the snow, and planned on throwing out the garbage in a nearby communal garbage bin before starting her day that morning. As she finished brushing off the snow, the claimant proceeded to throw out her garbage and slipped and fell after taking two steps from her vehicle. The claimant broke her wrist. Vice Chair Flude held that this incident was not an accident as defined in the Schedule, as it failed to meet both the purpose and causation test. Vice Chair Flude concluded that proximity is not use or operation, and that falling next to a car does not necessarily implicate the use of operation of the car in the fall. Further, he also concluded that the claimant’s intention of throwing out garbage was an intervening act which broke the chain of causation, and that the dominant feature was the slippery surface that caused her slip and fall.

Harland-Bettany v Aviva Insurance Canada (19-005099)

A preliminary issue hearing was held to determined whether an incident that occurred on February 5, 2017 was an accident as defined by s. 3(1) of the SABS. Adjudicator Mazerolle found for the claimant, highlighting that the insurer failed to raise the preliminary issue in a timely fashion and that regardless, the incident met the definition of an accident. There is no provision in the SABS outlining a prescribed time period for when an insurer can raise concerns about whether an incident is an accident, but s. 32 does define the process, including timings, that must be followed in an application for benefits. In this case there was no indication as to what changed the insurer’s understanding of the incident, and thus no explanation for the delay in bringing the preliminary issue before the Tribunal. On February 5, 2017, the claimant parked her vehicle and as she was in the process of exiting, she slipped and fell sustaining injuries. Both parties agree that the incident involved ordinary and well-known activities to which automobiles are put. The disagreement arose from whether this activity was the direct cause of the claimant’s impairments. In his analysis, Adjudicator Mazerolle determined that use of the dominant feature test would be the most appropriate and that both ice and the exiting of the vehicle were equally dominant features of this incident. As both were considered to be equal, the LAT concluded that the incident must be considered an accident within the meaning of the SABS.

Saiyid v. Intact Insurance Company (20-013964)

The claimant exited an Uber vehicle, and was attempting to cross Bay Street to take a GO Bus at Toronto’s Union Station when she slipped and fell on Bay Street. She fractured her hip. The claimant applied for accident benefits, which were denied by the insurer on the basis that this incident did not qualify as an “accident” under the Schedule. The claimant argued that this incident qualified as an accident, because but for the actions of the driver in refusing to conduct a U-turn and drop her off in front of Union Station, she would not have sustained her injuries. Vice Chair Maedal held that the incident was not an accident under the Schedule. While Vice Chair Maedal found that the incident arose out of the use or operation of an automobile, he concluded that use of the motor vehicle was not the dominant feature of the incident. Rather, he found that the dominant feature of this incident was the applicant’s slip and fall on Bay Street, and the operation of the uber vehicle was ancillary to her injuries.

C.T. v Aviva Insurance Company of Canada (20-004000)

The claimant alleged that an accident occurred as he was walking towards a transit bus. As the bus began to pull away from the bus stop, the claimant reported that he knocked on the side of the bus as it drove away. He claimed to have made momentary eye contact with the driver before losing his balance and slipping off the curb. The claimant’s right foot was allegedly run over by one of the rear bus tires. The claimant got onto the next bus and the driver asked if he required an ambulance. The insurer questioned whether or not this incident met the definition of an “accident” under the Schedule, given the claimant’s inconsistencies in his recollection of the accident details and the lack of any objective evidence. Vice Chair Maedel was not satisfied that the claimant’s injuries were caused by the use or operation of the transit bus. Vice Chair Maedal reviewed the totality of the evidence and was unable to determine that there was a nexus between the operation of the bus and the injuries sustained by the applicant. There was no witness evidence to corroborate the incident. There was no photographic evidence of the claimant’s injuries, and no incident reports or calls logged to the City of Hamilton, Hamilton Police, or ambulance records. Lastly, no medical evidence was produced that demonstrated the injuries the claimant sustained are consistent with the type of impact alleged.

R. S. v. Optimum Insurance Company (20-006166)

The claimant alleged that he was involved in an accident and injured while using and operating his vehicle to drive to an outdoor space to meditate. The claimant has a long history of mental health issues and addiction, and had previously expressed suicidal ideations. The insurer denied the claimant’s accident benefits claim, and argued that the claimant was using his automobile in a deliberate manner to end his own life, a suicide attempt, and therefore, the incident was not an “accident”. The insurer argued that the use of an automobile in a suicide attempt is an aberrant use of the automobile, and not within the “ordinary course of things”. The insurer argued that the dominant cause of the claimant’s injuries was his suicide attempt, not the use of operation of the vehicle. Medical records and police records implied and concluded that this accident was a suicide attempt. However, none of the individuals who created the records testified at the hearing. Vice Chair Farlam found that the dominant factor that caused the applicant’s injuries was the unintended loss of control of the claimant’s motor vehicle while he was driving it. Vice Chair Farlam also found that the claimant was not using his automobile in a suicide attempt on the date of loss, as the claimant’s pre-incident activities (spending time with his son), actions during the incident, and actions immediately after the incident (seeking help) were inconsistent with an attempt at suicide by vehicle. As such, Vice Chair Farlam found that the incident met the definition of an “accident” in the Schedule.