Porter v. Aviva Insurance Company of Canada (2021 ONSC 3107)

The insurer appealed the Tribunal’s decision that the claimant was involved in an accident. The claimant slipped and fell on ice while making her way to a Lyft vehicle in her driveway. The Court granted the appeal and concluded that the facts of loss did not qualify as an accident. The Tribunal erred by conflating the “but for” test with the direct causation test. Entitlement to accident benefits required that the use or operation of the vehicle be a direct cause of the injuries. In this case, the car was at best ancillary to the incident. More was required than establishing that the location of the vehicle led to the incident occurring. Ice and snow was the direct cause of the injuries, which was insufficient to establish direct causation for accident benefits entitlement.

Mahoney v. Co-Operators General Insurance Company (19-007708)

The preliminary issue at this hearing was whether the claimant was involved in an “accident” as defined within s. 3(1) of the SABS. The claimant submitted that she was involved in an accident because she was stepping out of her automobile when she slipped on ice and suffered injuries. The claimant’s body did not strike her vehicle as she fell. The claimant submitted no evidence at the hearing. The insurer argued that the claimant’s motor vehicle was not a direct cause of the claimant’s injuries and that the incident did not meet the test for an accident. Adjudicator Farlam found that the claimant’s injuries were caused by an intervening event and were not a consequence directly caused by the use or operation of a motor vehicle. The incident did not meet the causation test for an accident. The claimant was not entitled to accident benefits.

Boyle v. Travelers Canada (19-014423)

The claimant was a witness to a fatal motor vehicle accident. He applied for accident benefits based on claims of psychological impairments as a result of rushing to the scene to assist following the collision. The insurer determined that the claimant was not an “insured” who was “involved” in an “accident” under s. 3(1) of the SABS and denied the claim for accident benefits. The claimant applied to the LAT for resolution of the dispute. Vice-Chair Boyce agreed with the insurer and found that the claimant was not an insured person involved in an accident under s. 3(1). The claimant was not entitled to accident benefits.

Dawkins v. TD General Insurance Company (19-011161)

The claimant alleged that she was a passenger in a vehicle involved in an accident. The insurer argued that the claimant was not a passenger in the vehicle when the accident occurred. A preliminary hearing was held to determine whether the claimant was involved in an accident as defined in s. 3(1) of the SABS. The insurer’s position was based in part on inconsistencies in Examination Under Oath testimony, the lack of reference to the claimant in police reports, and the evidence of the third party driver. The alleged driver of the claimant’s vehicle did not attend the hearing despite being summonsed by the claimant. A negative inference was drawn from the fact the driver did not attend and the claimant failed to call any other witnesses to support that she was in the vehicle. Adjudicator Hines found that the claimant was not involved in an accident and the LAT application was dismissed.

Fariad v. Intact Insurance Company (20-001379)

The claimant was involved in an “incident” as an Uber driver in which he was verbally assaulted by passengers who kicked his vehicle upon exiting. The driver claimed accident benefits based on allegations of psychological injuries and a knee injury as a result of his knee hitting the steering wheel as he swerved away from the aggressive passengers. The insurer denied the claim for accident benefits on the basis that the alleged impairments were caused by the assault and not an “accident” under the SABS. A preliminary issue hearing was held to determine whether the claimant was involved in an “accident” as defined in s. 3(1) of the SABS. Adjudicator Farlam found that the use or operation of a vehicle was not the dominant feature of the alleged injuries. The dominant feature of the injuries was the assaults. Adjudicator Farlam found that the incident did not meet the causation test, and any injuries sustained as a result of the incident did not result from an “accident” as defined by the SABS. The claimant’s LAT application was dismissed.

L.L.B. v. Intact Insurance Company (17-003125)

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.

Wright v. Northbridge General Insurance Company (20-000248)

The claimant was riding an ATV when she was shot in her left hand in a hunting incident. The ATV was stationary at the time, and the claimant did not fall or hit any part of her body on the ATV. She made a claim for accident benefits. The insurer argued that the incident did not qualify as an accident. Adjudicator Grant concluded that the incident was not an accident. The parties agreed that the purpose test was met. The “but for” factor was not met, as there was no evidence that the use of an ATV increased the likelihood of being shot. The shooting was an intervening act that broke the chain of events, and was not part of the “ordinary course of thing.” Finally, the dominant feature was the claimant being shot; at no time was the shooting a part of the ordinary use or operation of a motor vehicle.

V.B. v. Economical Insurance Company

The claimant slipped and fell in a grocery parking lot as he was disembarking his vehicle. There was black ice on the ground. The claimant slipped before he had shut his door. The insurer argued that the incident was not an accident for the purposes of the SABS. Adjudicator McGee held that the incident qualified as an accident under the purpose test and causation test. She accepted that the claimant was still holding the interior handle of the door when he fell on the ice. The claimant’s disembarking was an ordinary and well-known use to which automobiles are put. The slipping and falling was not an intervening act capable of breaking the chain of causation between the use and operation of the vehicle and the impairment. Further, losing one’s footing on the pavement while exiting a vehicle is a reasonably foreseeable risk of operating an automobile.

Moore v. Certas Direct Insurance Company (19-008177)

The self-employed claimant was injured when a garage door fell on his head during the delivery of a parcel. He applied for accident benefits, which the insurer denied. Adjudicator Norris held that the incident was not an accident for SABS purposes. The parties agreed that the purpose test was met, as the delivery of a parcel was one of the ordinary uses to which a van may be put. The causation test was not met. The claimant’s use of his van ended once he left it to deliver the parcel to the recipient’s door. The garage door falling on the claimant’s head was also an intervening act, independent of his use or operation of the van.

C.K.D. v. Wawanesa Mutual Insurance (18-006988)

The claimant slipped and fell in the process of getting into his vehicle at a gas station. The insurer argued that the incident did not qualify as an accident. Adjudicator Makhamra concluded that the incident qualified as an accident. The claimant was just next to his driver’s door and was reaching out with his left hand when he slipped on ice. The adjudicator held that the act of entering a vehicle was an ordinary use of a vehicle, and therefore met the purpose test. She also considered the but-for principle, intervening act, and dominant feature principle and held that the vehicle was the direct cause of the injuries. The claimant would not have been injured but for being in the process of re-entering his vehicle; the incident was one continuous chain of events with no intervening acts; and the dominant cause of the injuries was the claimant’s attempt to get into his vehicle.