The insurer raised a preliminary issue in respect to whether the claimant was involved in two accidents. Adjudicator McGee found that the claimant was involved in both an April 8, 2016 accident and an October 4, 2016 accident. The facts of this case are unusual. At the time of both accidents, the claimant was incarcerated at a provincial correctional system. On April 8, 2016, correctional authorities transferred the claimant, handcuffed and shackled, in a prisoner transfer van from the Ottawa-Carleton Detention Centre to the Central North Correctional Centre, an approximate 8 hour drive. On April 8, 2016, the claimant sat unrestrained with three folded blankets to use as cushioning. On October 4, 2016, the claimant was transferred from Toronto East Detention Centre to downtown Toronto for a court appearance. He was handcuffed and unrestrained by a seatbelt. The claimant claims that both of these transfers triggered back pain and exacerbated his pre-existing back pain. The claimant argued that the incident in question was the claimant being forced to ride in an awkward position. This was due to a combination of factors, including the hard material of seating, the absence of a safety restraint, and the inability of the claimant to reposition or stabilize himself. The respondent argued that these occurrences were not an accident, and that the claimant merely used the seats of the vehicles as they were intended to be used. Adjudicator McGee found in favour of the claimant, noting that the term “incident” in the SABS should be given a fair, largely and liberal interpretation that best ensures the attainment of its consumer protection objection. Adjudicator McGee dismissed the insurer’s argument that the claimant was using the seats in its ordinary use, noting that this was not ordinary as the claimant was shackled, could not move freely, and was unable to request stops or breaks.
Menu