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Insurance - Auto - Causation (2). Pourkhodayar v. The Personal Insurance Company
In Pourkhodayar v. The Personal Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal/JR, here where the applicant "was denied on the basis that she had not been involved in an “accident” as defined in s. 3(1)".
Here the court considers a causal 'intervening act' issue:[12] In Greenhalgh v. ING Halifax Insurance Co. (2004), 2004 CanLII 21045 (ON CA), 72 O.R. (3d) 338 (C.A.), the Court of Appeal for Ontario held there to be a two-part test to determine if there has been an accident as defined: (1) The purpose test: Did the incident arise out of the use or operation of an automobile?; and (2) The causation test: Did the use or operation of an automobile directly cause the impairment?
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[26] As set out in Greenhalgh, an intervening act will absolve the insurer of liability if it cannot fairly be considered a normal incident of the risk created by the use or operation of the car. This passage acknowledges that persons who participate in the operation of a car assume certain risks created by that use. Those risks include such things as vehicle malfunction, poor road or weather conditions, and, in my view, things like dangerous, aggressive or careless driving. When a passenger in a motor vehicle takes to the road, he or she assumes a risk that the driver of his or her vehicle or other drivers on the road will be careless or aggressive or even dangerous. This is a risk taken on every occasion. It is a risk taken in the normal course. Put yet another way, it is an incident that is not outside the ordinary course of things. . Pourkhodayar v. The Personal Insurance Company
In Pourkhodayar v. The Personal Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal/JR, here where the applicant "was denied on the basis that she had not been involved in an “accident” as defined in s. 3(1)".
Here the court considered 'causation' in the auto insurance context:[14] The causation test looks to determine whether ordinary and well-known activities associated with the use or operation of an automobile were a direct cause of the claimant’s impairments. For the causation test to be met, there are three questions for consideration: (1) But for the use or operation of the automobile, would the incident have occurred? (2) Was there an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the automobile? (3) Was the use or operation of the motor vehicle a dominant feature of the incident? . Kaloczi v. Wawanesa Mutual Insurance Company
In Kaloczi v. Wawanesa Mutual Insurance Company (Div Court, 2024) the Divisional Court dismissed an appeal, here from a LAT SABS ruling that "found that the Appellant did not sustain a catastrophic impairment (“CAT” impairment) as a result of a motor vehicle accident".
Here the court commented on 'causation' in this MVA SABS insurance context:The “But For” Test
[11] This court has confirmed that the “but for” test is the correct test to be used in determining causation in accident benefits cases: see Sabadash v. State Farm et al, 2019 ONSC 1121. In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8, the Supreme Court described that test as follows:The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.
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ii) Causation
[18] The adjudicator’s application of the “but for” test was entirely correct. In applying the test, it was open to the adjudicator to consider other factors playing a role in the Appellant’s condition and to afford them appropriate weight. The ultimate determination that the MVA was not a necessary cause of the Appellant’s psychological and behavioral condition was fact driven. The adjudicator specifically relied on evidence which showed that the Appellant had not consistently reported all aspects of her life (both pre and post MVA) to the various assessors.
[19] It was not an error in law for the adjudicator to place weight on the absence of any reporting of psychological and behavioral complaints or the failure of the Appellant to seek treatment for the alleged impairments for years after the MVA.
[20] Nor was it an error in law to consider what other intervening stressors and events might be playing a part in the Appellant’s condition.
[21] Finally, it did not constitute an error in law for the adjudicator not to have accepted the causation opinions of the two CAT assessors. Her extensive review of the two CAT reports demonstrates that she was alive to the evidence of the two experts. An adjudicator is not required to comment upon each and every piece of evidence before her. The causation test under the SABS is a legal, not a medical one.
[22] Counsel for the Appellant was particularly critical of that portion of the adjudicator’s reasons at paragraph 50 of the decision where she concluded, “... given the other factors noted in the evidence, I do not find that the 2016 MVA was necessary to bring about her current psychological or behavioural impairments.” Counsel suggested that this represented an unreasonable and erroneous application of the “but for” test because the adjudicator failed to explain how these other “factors” contributed to her present impairments.
[23] I disagree. A fair reading of the reasons as a whole makes it abundantly clear that, having considered all of the evidence, the adjudicator was not persuaded that the 2016 MVA was a necessary cause of the Appellant’s present condition. It was the Appellant’s onus to meet, and she failed to do so. This was a factual finding made within the context of a properly applied legal test. It is not the function of this court to reweigh the evidence or substitute its own views of the evidence for that of the adjudicator below. . Achaia-Shiwram v. Intact Insurance Co.
In Achaia-Shiwram v. Intact Insurance Co. (Div Court, 2024) the Divisional Court dismissed a LAT SABS appeal, here for "no-fault accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”)" for "catastrophic psychological impairment".
Here the court considers case law relating to 'pre-existing injury':[31] In Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, 90 O.R. (3d) 689, at para. 95, the Court of Appeal for Ontario stated:There is no indication in the [Schedule] of a legislative intent that an insurer's liability for the accident benefits in issue in this case should be subject to discount for apportionment of causation due to an insured's preexisting injuries caused by an unrelated accident. The [Schedule] simply states, in clear and unambiguous language, that an insurer "shall pay an insured person who sustains an impairment as a result of an accident" medical, rehabilitation and attendant care benefits (ss. 14(1), 15(1) and 16(1))5”. [Emphasis added] . Achaia-Shiwram v. Intact Insurance Co.
In Achaia-Shiwram v. Intact Insurance Co. (Div Court, 2024) the Divisional Court dismissed a LAT SABS appeal, here for "no-fault accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”)" for "catastrophic psychological impairment".
Here the court considers the SABS causation element:[24] The appellant agrees that the Tribunal correctly articulated the applicable legal test for causation in accident benefits cases as being the “but for” test, as confirmed by this court in Sabadash v. State Farm Mutual Insurance Co., 2019 ONSC 1121, 89 C.C.L.I. (5th) 238 (Div. Ct.). In the Merits Decision, at para. 22, the Tribunal correctly stated:To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. . Davis v. Aviva General Insurance Co.
In Davis v. Aviva General Insurance Co. (Div Court, 2024) the Divisional Court allowed an insured's LAT SABS appeal, here where the insurer paid several years of claims but then successfully denied coverage on the basis that there was no 'accident'.
Here the court considers whether there was an 'accident' for SABS purposes, tied as it often is with a detailed 'causation' analysis:[71] The view that the SABS should be considered as consumer legislation and therefore applied for the benefit of the consumer is as prevalent now as it was when Smith v. Co-operators was decided in 2002. It has been held consistently that the SABS must be interpreted generously as legislation that is remedial in nature. In keeping with the direction from the Court of Appeal in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, 148 O.R. (3d) 438, at para. 42, leave to appeal refused, [2020] S.C.C.A. No. 7, the definition of “accident” under the SABS must be interpreted in a manner consistent with the substantive objective of reducing economic dislocation and hardship to victims of a motor vehicle accident.
[72] In 2002, the Court of Appeal reformulated the test for accident benefits coverage available to a claimant in Chisholm after the definition of “accident” in the standard automobile policy changed in 1996. In Chisholm, the plaintiff had been injured when he had been shot while in his car by an unknown assailant. He was insured for accident benefits under a policy written by the Liberty Mutual Group for rehabilitation and other statutory benefits if injured in an accident within the meaning of that term.
[73] Liberty Mutual brought a motion to determine a legal question before trial under r. 21.01(1) as the insurer. The motions judge held that the plaintiff had not been injured in an accident involving the direct use or operation of an automobile within the meaning of the term “accident” as defined under the SABS, but by the gunshot. Laskin J.A. wrote the following on behalf of the court at paras. 29 and 30:
[29] Put differently, even accepting that the use of Chisholm's car was a cause of his impairment, a later intervening act occurred. He was shot. An intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car -- if it is "part of the ordinary course of things". See J.G. Fleming, The Law of Torts, 9th ed. (North Ryde, NSW: LBC Information Services, 1988) at p. 247. Gun shots from an unknown assailant can hardly be considered an intervening act in the "ordinary course of things". The gun shots were the direct cause of his impairment, not his use of his car.
[74] The Court of Appeal followed Chisholm with Greenhalgh two years later. The facts in Greenhalgh involved a young woman whose car had become stuck down a country road on a cold winter’s night. The young woman had left her car to walk back to some farmhouses she had seen earlier in her travels to seek help. While walking back in search of a farmhouse, she had become disoriented in the darkness and had strayed off the road. After nine or ten hours of wandering, the young woman had fallen into an ice-covered river and had lost her boots. As a result, she suffered severe frostbite that caused the loss of her fingers and amputation of her legs below her knees. The young woman claimed accident benefits from her insurer.
[75] The Court of Appeal in Greenhalgh took the opportunity to explain that the “direct cause” in the amended SABS after 1996 shortened the link between the use or operation of an automobile and the occurrence of the impairment. The underpinnings of this test was formulated by Laskin J.A. in Chisholm when he stated at paragraph 24:[24] That brings me to Chisholm's final submission, a submission that, in my view, goes to the heart of this appeal because it focuses on the meaning of "directly causes". Chisholm submits that the use or operation of his car is a direct cause of his injuries because he would not have been wounded unless he had been confined in his car. In substance, Chisholm contends that the direct cause requirement can be satisfied by the "but for" test of causation. But for being in his car he would not have been injured. I do not accept this submission. [76] The case of North Waterloo Farmers Mutual Insurance Co. v. Samad, 2018 ONSC 2143 (Div. Ct.) was an application for judicial review of a decision of the (former) Financial Services Commission of Ontario regarding accident benefits coverage to the insured party. Justice Thorburn, writing at the time as a judge of the Divisional Court, neatly summarized the considerations to apply on the causation test:[12] What will amount to direct causation will depend on the circumstances. However, some of the following considerations may provide useful guidance in ascertaining whether or not it has been established in a given case:
(a) The “but for” test can act as a useful screen;
(b) In some cases, the presence of intervening causes may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile; and
(c) In other cases it may be useful to ask if the use or operation of the automobile was the dominant feature of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct”. (Greenhalgh paras 11 and 12) [77] The insured party in North Waterloo Farmers had exited his vehicle and had walked around it to the passenger side of the vehicle to close the rear door. He had his hand on the sliding door when he was shoved, slipped on the icy surface where he was standing and fell into a ditch. He made a claim for accident benefits, which was upheld by FSCO and the Divisional Court. At para. 13 in North Waterloo Farmers, Justice Thorburn states that:[13] There may be more than one direct cause; it is not necessary that all of the causes be part of the use or operation of the automobile. [78] A flexible approach must be taken for finding whether the use or operation of an automobile is a direct cause of an impairment to establish entitlement to accident benefits. An example of this flexibility was shown by the Divisional Court in Madore. In that case, the applicant had suffered grievous injuries from falling off the roof of his holiday trailer in the course of cleaning it. The trailer was attached to the applicant’s motor vehicle at all material times.
[79] The applicant subsequently claimed accident benefits from his insurer. On the standard wording of the statutory coverage for accident benefits, the Divisional Court ruled that the LAT had erred at law when it had rejected the claim for being outside the scope of the use or operation of a motor vehicle. The Divisional Court held that this accident had occurred within the definition of the term “accident” under the policy.
[80] As Justice Stewart wrote in Madore, “the link to be drawn therefore is between the “use and operation” of the automobile and the “impairment”. The applicant in Madore did not need to show a direct physical connection between the cause of the injury and an automobile to establish that he was injured in an “accident.”.
[81] Whether Ms. Davis was injured in an incident which was an “accident” within the meaning of s. 3(1) of the SABS is a question of law as it requires the proper interpretation and application of the correct legal test to the facts. In my view, Adjudicator Kaur’s conclusion on the application of the law to the facts was an error of law because she failed to find on the most recent authorities that Ms. Davis was injured during the direct use of her automobile. It is undisputed that she was holding the electronic key fob to open the car door, if she had not already done so, to enter the car and to operate it. This is an ordinary and well-known use to which an automobile is put.
[82] The black ice Ms. Davis slipped on was fortuitous, but not an intervening cause or event. This case is similar on the facts to the decision of the LAT in Seung v. Cooperators General Insurance Co., 2023 CanLII 47510 (Ont. L.A.T.), where the applicant had fallen and injured himself while loading his lunch bag into the trunk of his vehicle. He was neither walking towards, nor entering the vehicle to operate it at the time of the incident but he was still found to be injured in an “accident”. Seung was decided just five months before the appeal was heard, and to be fair to Adjudicator Kaur, approximately 18 months after the LAT decision under appeal.
[83] I agree with the adjudicator in Seung that the “slipped on ice” cases are divided into two camps. However, where there is a distinguishing fact from a slip and a fall like the injury in Porter and a series of events that connects the direct use of the car to the injury, ice will not have played the dominant role or served as an intervening event. This view is supported by the Divisional Court in North Waterloo Farmers as reasonable on judicial review and correct in law under the principles in Madore.
[84] Ms. Davis had the electronic key fob in her hand to open and enter her car, which is a part of the use of a motor vehicle. She was so proximate to completing that entry that her leg came to rest under the front wheel on the driver’s side. Referring to the reasoning in Seung, the presence of the key fob was a fact that supported the finding that the use of the car was the direct cause of her fall, not the ice beneath her feet.
[85] On a correct application of the law, I would determine on this record that Ms. Davis sustained the impairment for which she applied for accident benefits from Aviva in an “accident” within the meaning of the SABS.
[86] In making that determination, this court would be exercising its authority on appeal to make any order or decision that ought to have been made by the tribunal appealed from: Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 134(1). I recognize that when an appellate court allows an appeal, it generally remits the matter back to the tribunal for a rehearing, rather than determine the issue itself: see Pourshian v. Walt Disney Co., 2021 ONSC 4840 (Div. Ct.), at para. 38. However, in this case, I consider it appropriate for this court to determine this limited issue. I am satisfied that the record before this court is sufficient to permit this determination to be made. The fact that Aviva first raised the accident issue more than two years after accepting Ms. Davis’ claim is an important consideration in favour of doing so. I see no special advantage in remitting this issue back to the LAT for determination.
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