Defining “Accident” in the LAT Era of Accident Benefits Disputes

Written by: Carl R. Vondercrone



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The word, “accident” is often a point of contention in an Accident Benefits (AB) dispute. Under the Statutory Accident Benefits Schedule (SABS), an accident is defined as:

“…an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device.”[1]

With the transition to the License Appeal Tribunal (LAT) in April 2016, many have wondered how the LAT will define modern and novel notions of “accidents”. The expanded definition of “accident” being seen by the Courts and the LAT could potentially increase the number of valid accident benefits claims made against insurers. Incidents that, until relatively recently, would not have been considered accidents are now being deemed as such.

Before delving into some recent examples of SABS accidents, it is worth reviewing the tests that are used to determine if an incident qualifies as an accident.

The Purpose Test

Adopted in Ontario from the Supreme Court of Canada’s decision in Amos v. Insurance Corp. of British Columbia,[2] the purpose test asks the essential question: Did the accident result from the ordinary and well-known activities to which automobiles are put? The Ontario Court of Appeal recently expanded what sorts of automobile activities might be considered “ordinary and well-known”.

In Economical Mutual Insurance Co. v. Caughy,[3] the claimant had tripped over a parked motorcycle and suffered serious injuries as a result. The Court of Appeal was tasked with determining whether a parked vehicle could be deemed one of the “ordinary and well-known activities to which automobiles are put.” With respect to the purpose test, the Court of Appeal held, at paragraph 21, “[while the active use of an automobile (e.g. driving) would qualify under this test, there is no requirement that the vehicle be in active use].”[4]

With the Court of Appeal effectively determining that a vehicle need not be “in active use” in order to satisfy the accident definition, several intriguing cases have come before the LAT, and have compelled adjudicators to reconsider what constitutes an accident in the modern era of AB disputes. If an individual colliding with a parked vehicle qualifies as an accident, the number of “accidents” coming before the LAT is sure to increase.

The Causation Test

After satisfying the purpose test, a claimant must also pass the causation test, which can be broken down into three separate prongs. First, the “but for” test is examined. If the incident would not have happened, but for the use or operation of the vehicle, then it may qualify as an “accident”. Second, any intervening causes are considered to determine whether they prove capable of breaking the chain of causation. If an intervening cause or act breaks the chain, and that intervening cause cannot be said to be part of the ordinary course of use or operation of the vehicle, then the causal chain is broken. Third, the use or operation of the vehicle must be the dominant feature of the incident.[5] In 2012, the Court of Appeal enhanced the causation test by requiring that the use or operation of the vehicle must have directly caused the injury.[6]

Recent “Accidents”
Injured while Changing Washer Fluid

Whether it is changing tires, oil changes, pumping gas, or topping up fluids, many people perform routine maintenance on their vehicles. Recently, the Court was faced with an unusual scenario. In Davis v. Aviva Canada Inc.,[7] the claimant had injured herself while checking her windshield washer fluid. With her vehicle parked, the engine off, and the claimant under its hood, the hood of the car collapsed and injured the claimant. In light of the aforementioned Caughy decision, would the Court consider this unfortunate incident to be an accident?

Yes. The Court found that the claimant had suffered injuries as a result of an “accident”. Taking into account the reasoning of Caughy, the Court held that opening the hood of a vehicle to check the level of windshield washer fluid qualified as one of the “ordinary and well-known activities to which automobiles are put.”[8] Therefore, it appears that someone who injures themselves while performing routine maintenance on a vehicle may be the victim of an “accident” for the purpose of the SABS.

“Car-Surfing”

In I.C. v. Intact Insurance Company,[9] a recent LAT decision, the claimant was injured when she and some friends decided to go “car-surfing”. Car-surfing is the act of riding on the top or rear of a moving vehicle, or riding behind it on a wheeled device, such as a skateboard, while attached to a rope. In the moments leading up to her injuries, the claimant was standing on the rear bumper of the vehicle while it was being driven. The driver made a sudden turn, and the applicant was flung off, injuring herself in the process. Once again, the sole issue to be decided was whether car-surfing could be considered an ordinary and well-known activity to which an automobile is put.

Somewhat surprisingly, the Adjudicator determined that this incident was an accident under the SABS. Although she elected to do so in an unsafe and unconventional manner, the claimant was being transported, which is an ordinary and well-known activity to which an automobile is put.[10]

Tripping and Falling into a Parked Vehicle

The claimant in D.S. v. TD Insurance Meloche Monex[11] – another recent LAT decision – was running down a street early one morning, when he suddenly tripped, and fell headfirst into a parked vehicle, suffering catastrophic injuries. Once again, the issue was whether this unfortunate incident could be considered an “accident”.

Similarly to Caughy, the fact that the subject car was parked amounted to it being engaged in an ordinary and well-known use of a vehicle. Although the applicant did not trip over the vehicle, the fact that the injuries he sustained arose as a result of his impact with the vehicle was critical. Once again, the applicant’s injuries were deemed to have arisen as a result of an “accident”. At paragraph 41, the Adjudicator noted:

…does it matter that the applicant, in this case, collided with a parked vehicle as opposed to tripping over a parked vehicle as in Caughy? I find it does not for the purposes of the purpose test. The Court in Caughy noted that there was no ‘active use component’ to the purpose test.[12]

There are Limits – Recent Incidents that were not “Accidents”

While it may seem like the Courts and LAT are broadening the scope of incidents deemed to be “accidents”, there are limits. Certain incidents have come before the LAT involving claimants who have tripped or fallen while walking to or from their vehicles. For example, a claimant who tripped on a pothole in a parking lot while walking towards her vehicle was not found to have been involved in an accident.[13] Similarly, another claimant who tripped on an uneven curb while walking away from a vehicle was also not found to have been in an accident.[14]

In K.B., Adjudicator Hines distinguished the parking lot pothole scenario from scenarios similar to those seen in D.S. and Caughy:

What I find distinguishable between the present case and that of D.S. and Caughy was that the insureds involved in those accidents made direct contact with the parked vehicles, which resulted in their injuries. In the present case, the applicant did not make contact with her vehicle when she fell – she hit the ground.

In I.S., Adjudicator Daoud distinguished the uneven curb scenario from what she described as “interrupted journey” cases.[15] In those cases, the ultimate determination that an accident had occurred was largely a result of the fact that the applicants’ journeys had not yet completed by the time their injuries occurred. However, in I.S., the applicant’s journey had ended once she exited the vehicle, and it was determined that an intervening act caused her injuries, not the use or operation of the vehicle.

What does this all Mean?

The Caughy decision, in particular, could potentially create a whole new breed of viable accident benefits claims, where claimants injure themselves by coming into contact with parked vehicles. As a result, insurers should exercise discretion before denying unconventional claims, and should always keep in mind the relatively new expanded definition of “accident” in the LAT era of accident benefits disputes.

 


This commentary has been written by Carl Vondercrone and Student-at-Law, Alex Henderson. Carl practises insurance defence litigation at Beard Winter LLP for a variety of Ontario insurers and appears regularly on behalf of clients at the Superior Court of Justice. To reach Carl, email him at cvondercrone@beardwinter.com or call him at 416-306-1804.

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[1] O Reg 34/10, s 3(1); definition of “accident”.

[2] [1995] 3 SCR 405, 1995 CanLII 66 (SCC) [Amos].

[3] 2016 ONCA 226, 130 OR (3d) 508

[4] Ibid at para 21.

[5] Greenhalgh v ING Halifax Insurance Co., 2004 CanLII 21045, [2004] OJ No 3485 [Greenhalgh].

[6] Downer v. Personal Insurance Co, 2012 ONCA 302, [2012] OJ No 2015.

[7] 2017 ONSC 6173, 16 MVR (7th) 234 [Davis].

[8] Ibid at para 11.

[9] LAT 16-003163/AABS, 19 October 2017 [I.C.].

[10] Ibid

[11] LAT 16-000131/AABS, 16 June 2017 [D.S.].

[12] Ibid at para 41.

[13] K.B. v. Aviva Insurance Company, LAT 16-004096/AABS, September 27, 2017 [K.B.].

[14] I.S. v. Aviva Insurance Canada, LAT 17-000942/AABS, September 14, 2017 [I.S.].

[15] See Clementina Pinarreta v ING Insurance Company of Canada (FSCO: A04-001734), dated November 17, 2005 and Victor Mariano v TTC Insurance Company (FSCO: A05-B-002112), dated September 15, 2006.