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Insurance - Auto - "Accident". Travis v. Aviva Insurance Company
In Travis v. Aviva Insurance Company (Div Court, 2024) the Divisional Court dismisses a SABS LAT appeal from a novel fact situation, here where the claimant was a fireman responding after-the-fact to a van-caused terrorist attack with multiple fatalities. The central issues were whether the claimant was involved in an 'accident':[2] Mr. Travis appeals the two decisions of the LAT pursuant to s. 11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12. The appeals relate to the interpretation of the word “accident” as set forth in the Statutory Accidence Benefits Schedule – effective September 1, 2010, O Reg 34/10, s. 3 (1) (the “SABS”).
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[6] After the van attack of April 23, 2018 Mr. Travis eventually stopped working in September 2018 and began to receive psychological therapy. He has been diagnosed with major depressive disorder and post-traumatic stress disorder.
[7] Mr. Travis initially made a claim through the Workplace Safety Insurance Board (the “WSIB”). Subsequent to his claim, the WSIB advised Mr. Travis that he should return to a modified duty position. Mr. Travis disagreed that he was capable of a gradual return to work and therefore decided to de-elect from the WSIB regime. Mr. Travis elected out of the WSIB regime to claim under the SABS. He was not left without recourse for his disability caused by the carnage he witnessed on April 23, 2018.
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The Decision of the LAT
[10] Adjudicator Paluch framed the issue before him as whether Mr. Travis was involved in an “accident” pursuant to s. 3(1) of the SABS. To determine whether or not Mr. Travis was involved in an accident, Adjudicator Paluch referred to Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (C.A.) (Chisholm) and Greenhalgh v. ING Halifax Insurance Co (2004), 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338 (C.A.)[1] (Greenhalgh) as authority for what is often referred to as a two-part (purpose and causation) test to interpret the statutory definition of accident.
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Legal Principles
[19] In determining whether there has been an accident within the meaning of s. 3(1) of the SABS, the Court of Appeal in Chisholm and in Greenhalgh has set forth two questions which must be considered. Specifically, those questions are:1. Did the incident arise out of the use or operation of an automobile (the purpose test); and
2. Did such use or operation of an automobile directly cause the impairment (the causation test). [20] It is important to the determination of whether there has been an accident within the meaning of s. 3(1) of the SABS to accept that if the “but for” test is met this does not conclusively establish legal causation: see Greenhalgh at para. 37. The legal entitlement to claim accident benefits requires not just that the use or operation of a vehicle (in this case either the rental van or the fire truck) be a cause of the injuries, but that it be a direct cause: see Chisholm, at paras. 25-26.
[21] In Porter v. Aviva Insurance Company of Canada, 2021 ONSC 3107, the Divisional Court dealt with an appeal by the insurer where the LAT had determined that the insured’s claim arose as a direct result of an accident. The specific accident in question arose out of a situation where the insured was walking towards a stationary ride share Lyft car when the insured slipped and fell on ice in the driveway of her parents’ home and was severely injured.
[22] When the matter came before the Divisional Court, Ryan Bell J. at paras. 15 and 16 stated:[15] In this case, the use or operation of the Lyft car cannot be said to be a direct cause of Ms. Porter’s injuries. More is required than establishing that the car brought the applicant to the location of the incident (see Greenhalgh, at para. 37; Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92), and more is required than the car being the reason why Ms. Porter was at the location where the incident occurred. The location of the car in the driveway could be said to have led to Ms. Porter’s injuries – and in that limited sense, her injuries were “as a result of” or connected to the use and operation of the car. But the use and operation of the car did not directly cause her injuries. [Emphasis added]
[16] While it may be said that but for where the Lyft car parked in the driveway, Ms. Porter would not have slipped on the ice and fallen, this is insufficient to establish direct causation. The dominant factor that physically caused Ms. Porter’s injuries was the icy, snow-covered driveway. The use or operation of the Lyft car was “at best ancillary”: Chisholm, at para. 34. ....
Did the Adjudicator err in law in his determination that the Appellant was not involved in an accident? Did the adjudicator err in law in his application of the causation and but for test?
[23] The Appellant argues that the adjudicator erred in law by adding irrelevant factors when interpreting the definition of “accident”. The appellant argues that he was involved in an accident as a result of the use or operation of one or other of the rental van and the firetruck. Adjudicator Paluch applied the test for an accident to both of these situations and concluded that the Appellant was not involved in an accident in either case. In our view Adjudicator Paluch made no error of law in reaching that conclusion. In coming to the conclusions that he did, Adjudicator Paluch made findings of fact over which this court on an appeal has no jurisdiction.
[24] In order for someone to claim entitlement to a statutory accident benefit there must first be an accident involving the insured person. To establish that an insured person has been involved in an accident requires the claimant to satisfy the “purpose” and “causation” tests, as set forth by the Ontario Court of Appeal in Greenhalgh. As a matter of law the insured person must affirmatively answer the following questions set forth by Greenhalgh at para 16 and 36:1) Did the accident result from the ordinary and well-known activities to which automobiles are put? This is often referred to as the “purpose test”;
2) Was the use or operation of the vehicle a cause of the injuries?
3) If the use or operation of the vehicle was the cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries? Questions 2 and 3 are often referred to as the causation test. ....
[28] Having made a factual determination that the fire truck did not cause the Appellant’s injuries the Adjudicator was not required to move to the second part of the Greenhalgh analysis. The Adjudicator was correct in his analysis when he stated at para 68 of his Reasons as follows:In this case, the use or operation of the fire truck cannot be said to be a direct cause of the applicant’s injuries. The fire truck was merely in the vicinity of the aftermath of the accident. More is required than establishing that the fire truck brought the applicant to the location of the incident. The location of the truck on the streets could be said to have led to the applicant’s injuries – and in that limited sense, his injuries were “as a result of” or connected to the use and operation of the fire truck. But the use and operation of the fire truck did not directly cause her (sic) injuries.” [29] A similar issue came before the Divisional Court in Francia v Licence Appeal Tribunal, 2021 ONSC 7847, 18 C.C.L.I (6th) 330 (Div. Ct.). In her reasons for the Court at para 18, Kristjansen J. held that a finding of fact that the use or operation of a vehicle was not a direct cause of a claimant’s impairments was sufficient to satisfy the Greenhalgh test and a finding not reviewable on appeal. The following conclusion of Kristjansen J. is equally applicable to the facts before this court that “the incident, as it involved Mr Francia (as opposed to the drivers) did not result from the ordinary and well known activities to which automobiles are put.”
[30] While the Adjudicator concluded that the fire truck did not cause the Appellant’s injuries, he nonetheless moved to the second part of the Greenhalgh causation test. In this regard the Appellant argues that the “intervening act” consideration is a mandatory part of the analysis and that the “dominant feature” consideration is optional. We disagree. The Adjudicator was correct in his application of the “dominant feature” analysis when he determined that the Appellant’s injuries were not directly caused by the use or operation of a motor vehicle.
[31] In our view, the Reasons of Ryan Bell J. in Porter at para 15 and 16 quoted above are analogous to the facts before this court. The fire truck was the means by which Mr. Travis was brought to the scene of the indescribable tragedy that had unfolded immediately before his arrival. The cause of Mr. Travis’ undisputed injuries was not the fire truck. Rather, the cause of Mr. Travis’ injuries were solely the result of the criminal conduct of John Doe.
[32] The purpose of the SABS is to provide a means by which an injured party may seek entitlement to benefits where it can be established that the person seeking entitlement has been involved in an accident, defined as an incident in which the use or operation of an automobile directly causes an impairment.[2] To extend entitlement to Statutory Accident Benefits where it cannot be established that someone has been involved in an accident would be to defeat the purpose for which the SABS envisaged by the Legislature. . Jiang v. The Co-operators General Insurance Company
In Jiang v. The Co-operators General Insurance Company (Div Court, 2024) the Divisional Court considered two appeals (one a reconsideration) of LAT SABS rulings, here in the unusual context of a driver being assaulted by a passenger.
Here, the court considered (and reversed on this point) whether an 'accident' occured - as defined in the Statutory Accident Benefits Schedule:[2] On June 9, 2019, the appellant was assaulted by her husband while she was driving. She alleges that he pulled her hair and smashed her head into the driver’s side window; she lost control of her vehicle, hitting the curb during the course of which she struck her head against the roof of the vehicle approximately two times.
[3] The appellant submits that as a direct result of the accident, she sustained a traumatic brain injury with progression to post-concussion syndrome, headaches, blurry vision, dizziness, loss of balance and hearing impairments. The respondent raised a preliminary issue that the appellant was not involved in an automobile accident as statutorily defined by section 3(1) of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“SABS”), enacted under the Insurance Act, R.S.O. 1990, c. I.8.
[4] The adjudicator found that the appellant did not meet the definition of “accident” for two reasons:(1) the assault was an intervening event which broke the chain of events; and
(2) the dominant feature of her alleged injuries was the assault, and the use or operation of the vehicle was ancillary to the assault. [5] I would allow the appeal in part. I would dismiss the appeal to the extent that the appellant claims entitlement to accident benefits based on injuries caused by the assault. The adjudicator’s finding that the assault was an intervening act that led to her injuries in the first phase of the incident and not the use or operation of the automobile is a finding of fact and law and is not an extricable question of law in this case over which this court has jurisdiction. That part of the appeal is dismissed.
[6] With respect to claim for entitlement to accident benefits based on injuries allegedly caused by the loss of control of the automobile, the adjudicator stated the causation test correctly, but, she did not follow the principles she enunciated:(1) in applying the “intervening cause” part of the causation test, she ignored that there were two phases to the incident—injuries allegedly caused by an assault and injuries allegedly arising from the subsequent loss of control of the vehicle. She failed to give reasons for why the road accident was also not a direct cause of the injuries; and
(2) in applying the “dominant feature” part of the causation test to the incident, she ignored that there were two phases with separate dominant features. [7] The adjudicator’s finding that the intervening assault broke the chain of causation and therefore the appellant’s alleged injuries from the loss of control of the vehicle did not need to be considered was an extricable error of law; the adjudicator erred in her characterization of the legal standard for causation. This court has jurisdiction over such errors of law. The appellant’s alleged injuries after losing control of the automobile and striking her head may have been directly caused by the use or operation of an automobile and meet the definition of “an accident” as defined in Schedule 1. The issue is a genuine issue requiring a hearing.
[8] I would allow the appeal to the extent that the appellant claims entitlement to accident benefits sustained as a result of her loss of control of her vehicle following the assault. The issues of whether and to what extent the appellant’s injuries were sustained as a result of her loss of control of her vehicle following the assault remain to be determined at a hearing. . Madore v. Intact Insurance Company
In Madore v. Intact Insurance Company (Div Court, 2023) the Divisional Court considered whether a fall from the top of a stationary but connected camper trailer while cleaning constituted an 'accident' with the meaning of SABS s.3(1). The more specific issue was whether specific causation need be shown in order for there to have been an 'accident' (it didn't), or only the occurence of an accident during insurance-covered activities [para 24-49].
. Porter v. Aviva Insurance Company of Canada
In Porter v. Aviva Insurance Company of Canada (Div Ct, 2021) the Divisional Court set out the test for a motor vehicle 'accident':[11] In both Chisholm v. Liberty Mutual Group (2002), O.R. (3d) 776 and Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338, the Court of Appeal for Ontario identified a two-part test to determine whether there has been an accident within the meaning of s. 3(1) of the Schedule. The two questions to be considered are:
1. Did the incident arise out of the use or operation of an automobile (the “purpose test”); and
2. Did such use or operation of an automobile directly cause the impairment (the “causation test”).
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[14] In essence, the Vice Chair concluded that the use and operation of the car was a direct cause of Ms. Porter’s impairments because she would not have been injured but for or “as a result of” the location of the car in the driveway. In so doing, the Vice Chair conflated the “but for” test with the direct causation test. This is an error in law. If the “but for” test is met then the act or omission is a factual cause of the injury; however, the “but for” test does not conclusively establish legal causation: Greenhalgh, at para. 37. Legal entitlement to accident benefits requires not just that the use or operation of a car be a cause of the injuries, but that it be a direct cause: Chisholm, paras. 25-26.
[15] In this case, the use or operation of the Lyft car cannot be said to be a direct cause of Ms. Porter’s injuries. More is required than establishing that the car brought the applicant to the location of the incident (see Greenhalgh, at para. 37; Dominion of Canada General Insurance Company v. Prest, 2013 ONSC 92), and more is required than the car being the reason why Ms. Porter was at the location where the incident occurred. The location of the car in the driveway could be said to have led to Ms. Porter’s injuries – and in that limited sense, her injuries were “as a result of” or connected to the use and operation of the car. But the use and operation of the car did not directly cause her injuries.
[16] While it may be said that but for where the Lyft car parked in the driveway, Ms. Porter would not have slipped on the ice and fallen, this is insufficient to establish direct causation. The dominant factor that physically caused Ms. Porter’s injuries was the icy, snow-covered driveway. The use or operation of the Lyft car was “at best ancillary”: Chisholm, at para. 34. . Francia v. Licence Appeal Tribunal
In Francia v. Licence Appeal Tribunal (Div Ct, 2021) the Divisional Court considered the definition of "accident" for MVA insurance purposes:[9] The LAT applied the two-part test for determining whether an incident is an “accident” under the SABS. The LAT summarized the purpose and causation tests as follows, citing Amos v. Insurance Corporation of British Columbia, 1995 2 S.C.R. 405, Chisholm v. Liberty Mutual Group (2002), 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (CA), and Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338:Purpose test: Did the accident result from the ordinary and well-known activities to which automobiles are put?
Causation test: Was the use or operation of the vehicle a cause of the injuries? If the use or operation of the vehicle was the cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries? ....
[14] The appellant argues that the LAT erred in law by requiring Mr. Francia to show that the purpose test was met twice in Scenario 1. The purpose test, used to determine whether an incident constitutes an “accident” for the purposes of the SABS, is whether the incident resulted "from the ordinary and well-known activities to which automobiles are put". This is the test articulated by the LAT. The purpose test was described by Binnie J. in Vytlingam (Litigation Guardian of) v Farmer, 2007 SCC 46 at para 19 as follows:….The "ordinary and well-known activities to which automobiles are put" limits coverage to motor vehicles being used as motor vehicles, and would exclude use of a car as a diving platform (as above) or retiring a disabled truck to a barn to store dynamite (which explodes), or negligently using the truck as a permanent prop to shore up a drive shed (which collapses, injuring someone). In none of these cases could it be said that the tortfeasor was at fault as a motorist. In none of these cases could it be said that the motor vehicle was being used as a motor vehicle. That is the sort of aberrant situation that the Amos purpose test excludes, and nothing more… [15] The Court of Appeal adopted this passage as affirming both the statement of the purpose test and its application to SABS cases in Economical Mutual Insurance Co. v. Caughy, 2016 ONCA 226 at paras. 16-17.
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