Category: Accident Definition

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.

Davis v. Aviva General Insurance Company (20-005334)

The claimant slipped and fell on black ice in a parking lot as she was trying to open the driver’s side door. The claimant applied for accident benefits, which was denied as her insurer took the position that the claimant was not involved in an accident. Adjudicator Kaur held that the incident did not meet the definition of an “accident”. Adjudicator Kaur found that the claimant’s injuries were not a consequence directly caused by the use of operation of the automobile. Instead, her injuries were caused by an intervening cause, which was the ice on the ground. Adjudicator Kaur found that the ice that initiated the slip and fall led to the claimant’s injuries, not the use of operation of her automobile, and while the vehicle was physically near the ice, it did not cause the slip and fall.

Singh v. Certas Direct Insurance Company (20-011141)

The claimant alleged that he was the back-seat passenger in a car involved in a rear-end accident. The insurer believed the incident was staged, based on an accident reconstruction report. Adjudicator Neilson held that the claimant failed to prove that he was involved in an accident. Relying on the accident reconstruction report and the “black box” data, Adjudicator Neilson found that the damage to the involved vehicles did not match the reported data. Additionally, the claimant’s reporting regarding the facts of loss was not supported by the “black box” data, or the damage to the vehicles. Furthermore, the claimant’s medical records did not support the injuries alleged by the claimant. Adjudicator Neilson wrote that staging an accident did not meet the purpose or causation test, and the claimant was therefore not entitled to accident benefits. The claimant was also found to have made material misrepresentations with respect to material facts. The claimant was ordered to repay $1,442 in medical benefits paid to a clinic as a result of the material misrepresentation.

Aviva General Insurance Company v. Sayegh (20-013245)

The claim arose after the insurer denied further benefits and sought repayment on the basis of wilful misrepresentation under section 52(1) of the SABS. The insurer based its decision on the investigation of an accident reconstruction expert, William Jennings. At the LAT, the claimant testified that he had been a front-seat passenger of his friend’s Toyota when it rear ended a Chevrolet vehicle. His testimony was consistent with the self-collision reports for both vehicles and his reports in two section 44 IEs. However, upon cross-examination, the claimant testified that he had not been in the passenger-seat but was holding the seat belt in his hand while sitting on the console next to the driver when the accident occurred. In his investigation, Mr. Jennings examined the seat belt restraint system, photographs of the damage, and the Event Data Recorders of both vehicles. He testified that based on the data retrieved, the Chevrolet was vacant and the Toyota had no passengers at the time of the collision. Mr. Jennings found that the frontal passenger airbag in the Toyota had not deployed. He testified that had the claimant been in the passenger seat, the airbag would have deployed on impact. The data from the Toyota showed that the vehicle had rapidly accelerated from a speed of 4 km/h to 39 km/h before hitting the Chevrolet. Mr. Jennings stated that the only plausible explanation for the accident was that the Chevrolet was stopped and unoccupied when it was intentionally struck by the Toyota. The claimant did not produce the drivers of either vehicles as witnesses or otherwise provide evidence to refute Mr. Jennings’ findings. Adjudicator Reilly accepted the insurer’s evidence and found that its notices of request for repayment were satisfactory. She awarded a repayment of benefits, as well as interest on the outstanding balance starting from the date of the notice letter.

E.J. v. Economical Insurance (20-008287)

The minor claimant was the daughter and sibling of family members involved in a serious accident. The claimant was not herself in the vehicle at the time. The claimant applied for accident benefits, but the insurer denied the application arguing that the claimant was not in an accident. Vice Chair Lake agreed that the claimant was not involved in an accident, but that she was an insured person. The claimant was a dependent of her father. Her father suffered physical injuries as a result of the accident. The claimant suffered psychological injuries as a result of her father’s injuries. The claimant was therefore entitled to accident benefits as an insured person. A treatment plan for psychological treatment was awarded. An claim for lost educational expense was not awarded because it was not incurred prior to the accident.

Alsaghir v. The Co-operators General Insurance Company (20-010596)

The claimant sought entitlement to accident benefits following an incident in which he parked in someone else’s parking spot, and as a result he was yelled at and his vehicle was vandalized. The claimant argued that he suffered psychological injuries as a result. The insurer denied that the incident was an “accident”. Adjudicator Makhamra concluded that the incident was not an accident. The incident met the purpose test, as parking a vehicle was an ordinary use of a vehicle. However, the causation test was not met. The injuries alleged by the claimant were not the result of parking the vehicle. The assailant’s verbal attack and vandalization of the vehicle was an intervening act. Adjudicator Makhamra also wrote that the dominant feature of the incident was the altercation, not the parking of the vehicle.