Category: Accident Definition

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.

Fehr v. Intact Ins. Co. (21-003866)

The claimant was involved in an incident where he fell off the roof of a transport truck and sustained a traumatic brain injury. The claimant placed a ladder against the side of the transport truck to inspect its roof. While conducting his inspection, the ladder slid out from under him. The claimant attempted to grab onto the roof, until he eventually fell from the transport truck, hitting his head on the curb and pavement. The claimant was deemed CAT and sought approval for a housing modification and nutritional counselling. The insurer denied the application, stating that the claimant was not involved in an “accident” as defined by the SABS. Adjudicator Boyce held that the incident met the definition of an “accident”. The purpose test was satisfied as performing routine maintenance on a parked vehicle is one of the “ordinary and well-known activities to which automobiles are put.” Adjudicator Boyce accepted that but for the claimant’s use and operation of the truck, he would not have sustained his impairments. The facts support that his impairments were directly caused by conducting routine maintenance on the truck and there were no intervening acts that could be reasonably considered to be outside the normal course of actions that would sever the chain of causation.

Nehme v. Aviva General Insurance (20-006675 & 20-006677)

The claimant went grocery shopping and carried half of her groceries into her home. On the next day, the claimant proceeded to retrieve the remainder of the groceries from her car, when she slipped and fell approximately 12 to 15 feet away from her vehicle. The claimant applied for accident benefits and the insurer denied the application, stating that the claimant was not involved in an “accident” as defined by the SABS. Adjudicator Grant held that the incident did not meet the definition of an “accident”. Adjudicator Grant found that any impairments that the claimant may have suffered were caused by circumstances that arose from the icy conditions of the parking garage, and not from any use or operation of the vehicle. While Adjudicator Grant recognized that retrieving and putting away groceries from a trunk meets the purpose test, he held there was an intervening act where the claimant failed on causation.

Gyesus v. Royal Sun Alliance (21-001119)

The claimant testified that she exited left out of a parking lot when another vehicle struck her car on the front driver’s side. Both vehicles were towed from the accident scene in London to Mississauga. The police attended the scene and created a motor vehicle collision report, but did not conduct an investigation. The report stated that damage occurred to the entire front of the vehicle and that the steering was broken, which caused the air bags to deploy. The claimant applied for accident benefits and the insurer denied the application, stating that the claimant was not involved in a legitimate accident. An accident reconstruction specialist was hired by the insurer and testified that the accident did not occur as reported by the claimant. He concluded that the two vehicles were in a collision, but not with each other. He noted that damage to both vehicles ought to match in height, severity and character, and that these factors did not match the incident as reported. The vehicle and collision forces did not align with the pre-impact direction of travel of either vehicle. The expert concluded that the cars were towed to the collision site and that the accident was staged. Adjudicator Reilly held that the claimant did not meet her burden of proof to establish that an accident occurred. The adjudicator was heavily persuaded by the accident reconstruction specialist’s report, and determined there were significant issues of credibility with the evidence provided by the claimant and the other driver.

Oram v. Aviva General Insurance (20-006962)

The claimant exited his truck, and left the vehicle running while he walked up to a building. While returning to his vehicle, he slipped on ice and fell. The claimant applied for accident benefits and the insurer denied the application, stating that the claimant was not involved in an “accident” as defined by the SABS. On examination under oath, the claimant testified that he slipped approximately 5 to 10 feet away from the vehicle. Vice Chair Farlam held that the incident was not an “accident”. Vice Chair Farlam found that the dominant factor that caused the claimant’s injuries was his slip and fall on the icy parking lot. Vice Chair Farlam held that the claimant’s injuries were caused by a later intervening cause, the fact that he slipped on ice on the ground, which broke the chain of causation.

Racey v. The Co-operators General Insurance Company (20-011995)

The claimant parked and exited her vehicle, and proceeded to walk around the rear of the vehicle when she slipped and fell on an icy driveway. The claimant applied for accident benefits and the insurer denied the application, stating that the claimant was not involved in an “accident” as defined by the SABS. Vice-Chair Farlam held that the claimant’s injuries were not a consequence directly caused by the use or operation of the automobile but were caused by a later intervening cause, that she slipped on ice on the ground. Ice on the ground and the claimant’s slip and fall constituted an independent intervening event that broke the chain of events, and her use or operation of the automobile was not the dominant feature of the claimant’s injuries.

Hagopian v. Allstate Insurance (20-000998)

The claimant was the driver of an all-terrain vehicle which collided with a dirt bike on private property. Neither vehicle was insured and the claimant suffered a severe brain injury as a result of the collision. The issue in dispute is whether either vehicle would be defined as an automobile pursuant to the Insurance Act. The Act defines an automobile as any vehicle required under any Act to be insured under a motor vehicle liability policy. The insurer submitted that the insurance and licensing requirements of any ATV or dirt bike was governed by the Off-Road Vehicles Act (ORVA). Under section 15 of the ORVA, neither an ATV or dirt bike was required to be insured for use on an owners private property. Reading the legislation together, this would mean that the vehicles did not meet the definition of an automobile pursuant to the Insurance Act. However, in this case, the owner of the ATV was not the owner, occupier, or controller of the subject property. Adjudicator Norris therefore concluded that the ATV was required to be insured and section 15 of the ORVA was not applicable. The incident qualified as an accident pursuant to the Schedule.

Ritchie v. Economical Insurance (20-013296)

The claimant was walking to her vehicle when she slipped and fell on ice. The fall happened as she was turning towards the driver’s side door and had activated the key fob to unlock the vehicle. The Tribunal accepted that the claimant had satisfied the purpose test, as the accident arose from the ordinary and well-known activities for which automobiles are put. However, Vice Chair Maedel considered that conducting a dominant feature analysis would be appropriate in the circumstances. This analysis requires the Tribunal to determine the element of the incident that most directly caused the injuries. Vice Chair Maedel determined that the dominant feature in this case was the ice and not the vehicle. As a result, the claimant could not prove that the use or operation of an automobile had directly caused her injuries. The Tribunal rules that the claimant had not been involved in an “accident”.