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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles
Powered by Crow & Pitcher
150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850