Sterling v. Heartland Farm Mutual Inc. (20-000672)

The claimant sought entitlement to accident benefits after an incident in which she experienced intense neurological pain in her back and loss of sensation in her right leg and foot while pressing her foot onto the accelerator. Prior to starting the vehicle, the claimant had lifted her 30 pound son into his car seat. Vice Chair Boyce held that the incident qualified as an accident. Regarding the purpose test, the claimant lifting her son into his car seat and pressing on the accelerator were ordinary and well-known activities for which automobiles were used. Regarding the causation test, there was limited evidence about any intervening or distinct activity that was not part of the ordinary course of things. The claimant likely suffered reinjury to an earlier disc injury due to her use of her car.

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.

B.F. v. Certas Direct Insurance Company (19-004944)

The claimant applied to Certas for accident benefits. Certas brought an application to the LAT arguing that the claimant was not involved in an “accident” and sought repayment of accident benefits because the claimant wilfully misrepresented facts in relation to her application for benefits. Adjudicator Maleki-Yazdi agreed that the claimant was not involved in an accident. Adjudicator Maleki-Yazdi considered the claimant’s EUO evidence as well as the evidence of Certas’ investigator. Adjudicator Maleki-Yazdi found there were several inconsistencies with the claimant’s reporting and that the claimant could not describe basic facts regarding the collision at both her EUO and at the hearing. Because Adjudicator Maleki-Yazdi found there was no accident, Adjudicator Maleki-Yazdi also found that the claimant had wilfully misrepresented material facts about her claim for benefits and that the claimant had to repay Certas accident benefits pursuant to section 53.

Borsato v. Pembridge Insurance (19-013826)

A preliminary issues hearing was held to determine whether the claimant was involved in an “accident” as defined in s. 3(1) of the SABS. The claimant and insurer agreed on the following facts: On the day of the accident, the claimant drove to a feed store with her husband to purchase horse feed. The claimant and her husband were directed to pick up the horse feed from a shed. While walking from the shed to her car, the claimant had to navigate around a number of skids and pallets. While she was walking, the claimant raised her hand and clicked the key fob to remotely unlock her vehicle’s rear hatch so her husband could load the horse feed into the trunk. While clicking the key fob and observing the rear taillights of the vehicle flash, the claimant tripped over a slightly raised forklift tine. Adjudicator Parish found that the incident did not meet the purpose or causation test. In particular, this matter was distinguishable from previous LAT cases because the fall occurred prior to the vehicle being loaded with horse feed, the fall did not involve the claimant coming into contact with the vehicle, and the chain of causation was broken when the claimant parked her vehicle, shut it off, and locked the vehicle. Adjudicator Parish did not accept that pressing the key fob and observing the taillights flash established the use or operation of a vehicle. Adjudicator Parish found that the claimant was not involved in an “accident” as defined in the SABS. The application was dismissed.

Aviva General Insurance v. Mehdi Najmialdin (20-001336)

Aviva brought an application arguing that the claimant was not involved in an accident and sought repayment of IRBs in the amount of $22,647.59. Aviva relied on surveillance showing the claimant attending his place of employment on several occasions as well as review of the police report from the January 11, 2019 accident that showed that the claimant was not listed as an occupant of any vehicles involved in the accident. The claimant had said he would call two occupants of the vehicle he was in at the hearing, but then at the hearing, did not call anyone and relied on his own testimony. Aviva relied on the statements from the attending police officer and the other driver involved in the accident. Adjudicator Grant found the evidence of the police officer and other driver compelling. Adjudicator Grant found that Aviva acted diligently and requested repayment within the designated time and that the claimant wilfully misrepresent his claim for accident benefits.

Z.J. v. Wawanesa Mutual Insurance Company (18-008967)

The claimant sought reconsideration of the decision of Adjudicator Maleki-Yazdi wherein she found that the claimant was not in an accident. Adjudicator Maleki-Yazdi upheld her previous decision. Adjudicator Maleki-Yazdi noted that the Tribunal reviewed all of the evidence, including the expert reports about whether the accident was staged, and that she did not err in her conclusion.

Allstate Canada v. Leroy Staglon (19-008347)

The claimant was riding his bicycle when he wound up in front of a vehicle operated by Allstate’s insured. The insurer argued that the automobile was not involved in the incident, and that the claimant had fallen independent of the automobile. Adjudicator Farlam held that the incident was not an accident. The claimant rode his bicycle up along side the stopped vehicle and put his hand on the driver’s hood. When the light changed, the claimant took his hand off the hood, started to ride, and then lost his balance and fell. The driver of the vehicle had not moved his vehicle and was still stopped when the claimant fell. Independent witnesses observed the claimant accosting the driver after the incident and police were called to the scene. The police investigation determined that the claimant had lost his balance, and the claimant was charged with assaulting the automobile driver. The police investigation noted that if the claimant’s bicycle had been struck by the vehicle there would have been damage to the bicycle or the vehicle, and no damage was observed on either. Adjudicator Farlam also noted that the claimant’s evidence was unreliable and inconsistent, nor was it corroborated by the testimony of any witnesses.

Edmonds v. COSECO Insurance Company (20-006226)

The claimant was injured when she slipped and fell while trying to enter her vehicle. The insurer denied that the incident qualified as an accident. Adjudicator Mazerolle agreed with the insurer and held that the incident was not an accident. The claimant slipped and fell on ice as she walked from her trunk to the driver’s door. She did not manage to open the door before falling. The adjudicator concluded that the dominant feature of the incident was falling on ice, rather than the use and operation of a vehicle. The vehicle was simply ancillary to the events. Adjudicator Mazerolle did not accept the claimant’s argument that the reason for her being near her car and on the ice – namely, in order to get into her car – was necessarily the direct cause of the incident.

A.S. v. BelairDirect (19-000539)

The claimant was injured when he tripped and fell on a raised ledge at an auto show near a display vehicle. He argued that the incident qualified as an accident. Vice Chair Farlam held that the trip and fall was not an accident under the SABS. The fact that the claimant was walking towards a vehicle when he tripped did not establish that a vehicle contributed to the incident. Further, the claimant’s “viewing” of a vehicle was not relevant to the legal test; he was required to prove that the incident arose from the use and operation of an automobile (the purpose test) and whether the use and operation of an automobile directly caused the claimant’s injuries (the causation test). The facts of loss did not meet the purpose test, so the Tribunal did not need to consider whether the causation test was met.

Pinera v. Motor Vehicle Accident Claims Fund (21-001681)

The claimant was injured while crossing an intersection in downtown Toronto late at night. He sustained soft tissue injuries and a fractured clavicle. The Fund argued that no vehicle was involved in the incident, and the claimant was therefore not entitled to accident benefits. The claimant argued there was a vehicle that struck him, though he could not provide any details. Adjudicator Norris held that the claimant failed to prove that a vehicle was involved, and that the claimant was not entitled to accident benefits. The claimant only recalled “something” hitting the back of his leg and that he fell to the ground and lost consciousness. The police did not create an accident report when the claimant reported the incident because the police did not have enough detail, nor was the claimant’s reporting consistent with a motor vehicle accident. The hospital records failed to establish the involvement of a vehicle. At least three times the incident was noted as a fall or a syncopal episode. The claim was dismissed.