Category: Accident Definition

A written preliminary issue hearing was held to determine whether the claimant was involved in an accident as defined in s. 3(1) of the SABS. The claimant claimed she was involved in an accident when her vehicle was side swiped by another vehicle, causing her injuries and damaging her vehicle. The insurer submitted that the claimant was injured during a drive-by shooting when the claimant’s vehicle was stopped at a red light. The insurer conceded that the claimant was injured while driving a vehicle, but the claimant was not injured in an “accident.” Adjudicator Reilly found that the shooting was the direct cause of the claimant’s injuries and the fact that she was in a vehicle was merely incidental. There was no evidence supporting the claim that her vehicle was side-swiped. Adjudicator Reilly found there was no evidence that the claimed impairment was caused by an accident as defined by the SABS. The application was dismissed.

The claimant was injured in an incident that involved a series of assaults, resulting in physical injuries. The facts of the case are unusual: The claimant heard a commotion on his street. He got in his vehicle and drove down his driveway where he was met by two assailants. The claimant opened the driver’s side door of his vehicle and one of the assailants struck him in the face. The claimant got back into his car and tried to drive the assailants off his property. More conflict ensued and the claimant exited his vehicle and put an assailant in a headlock. The other assailant then hit the claimant with a hammer and then the assailants fled the scene. The insurer denied the claim for accident benefits and the matter went to a preliminary issue hearing as to whether an accident occurred. Adjudicator Boyce held that the incident was an assault and not an accident. Adjudicator Boyce found that the dominant feature of the incident causing the claimant’s impairments was the assault and not the use of a vehicle and that it could not be said that the impairments arose from the “ordinary and well-known” use of a vehicle.

The claimant was injured when he slipped and fell on ice while attempting to retrieve his car key from his bag. He suffered a displaced spiral fracture of his fibula. The claimant applied to the insurer for accident benefits. The insurer denied that an accident occurred. The claimant applied to the LAT and the matter went to a preliminary issue hearing about whether an accident occurred. Adjudicator Gosio found that the incident met the “but for” test and that the claimant was in the continuous process of getting into his vehicle when he slipped on ice. Adjudicator Gosio held that the slip and fall on ice was not an intervening event as it was not as though the claimant was walking outside aimlessly. He was standing beside his vehicle retrieving his keys to open the door when he fell. Adjudicator Gosio held that the dominant feature of the incident was the claimant’s attempt to get into his vehicle and therefore the incident met the “accident” definition in 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. The claimant submitted that he was riding on the back of an ATV down a laneway on the way to his home when he fell off the back and suffered a catastrophic brain injury. The insurer’s main argument was that the claimant and witnesses were not credible, and that the claimant was not in fact injured while on an ATV. The decision largely turned on the believability of the witnesses. Adjudicator Maleki-Yazdi accepted that an ATV was involved in the incident, the claimant’s injuries were a direct result of a fall off the ATV, and the claimant was therefore involved in an “accident” as defined in s. 3(1) of the SABS.

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.

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.

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.

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.

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.