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.
Menu