- November 26, 2021
- Posted by: azimi
- Category: Car Accidents
Learn about a preliminary (or threshold) issue in a statutory accident benefits case
In a statutory accident benefits case, there is always a preliminary (or threshold) issue as to whether the incident in question is, technically, an accident.
An “accident” is defined in the legislation as follows:
“accident” means 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; (“accident”)
Satisfying this legal definition is broken down into three distinct sub-issues or questions:
- Was the vehicle involved in the incident an automobile?
- Was the vehicle being ordinarily used or operated during the incident?
- Did the use or operation of the vehicle during the incident cause the injuries (or damage to medical or dental devices)?
The first sub-issue is answered with reference to the definition of “automobile” in the Insurance Act:
“automobile” includes a trolley bus and a self-propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include railway rolling stock that runs on rails, watercraft or aircraft; (“automobile”)
The second sub-issue is answered with reference to case law that has elaborated upon the meaning of the legal phrase “use or operation of a vehicle” in this context.
And the third sub-issue is answered using the ‘but-for’ causation test: But for the incident with the vehicle, would the injuries (or damage to the medical or dental device) have occurred? Causation is established if the tribunal is satisfied that if the incident involving the vehicle had not occurred, the injuries (or damage to the medical or dental device) would not have occurred.
The following two cases are recent examples where a person was injured in an incident involving a motor vehicle, the respondent insurer denied the injured person’s claim for statutory accident benefits, and the injured person (applicant) applied to the Ontario License Appeal Tribunal (LAT) to dispute the denial of benefits.
In Madore v. Intact, the applicant was checking the caulking and slide-outs on the top of his five-wheel trailer, getting it ready to go on a vacation, when he fell off onto the ground and was injured. The trailer was attached to a parked pickup truck located on his driveway. The LAT held that the vehicle in question was an automobile (see the definition quoted above which shows that an automobile includes “… the trailers … of automobiles”); that the vehicle was being ordinarily used (as pretravel inspection, maintenance and cleaning are ordinary activities); but that the vehicle did not cause the injuries. The incident was caused by the applicant losing his footing due to misfortune. This was an “intervening act” that broke the causal link. It was not true that, but for his inspection/maintenance of the vehicle, he would not have been injured; his fall was an independent event that caused those injuries. As a consequence of his failing the causation test, the incident was not an “accident” within the meaning of s. 3 of the Statutory Accident Benefits Schedule. Therefore, he did not pass the preliminary stage of his statutory accident benefits case.
In Montesano v. Western Assurance, the applicant was walking towards her house after smoking a cigarette when she tripped and fell and struck her face against the bumper of a parked vehicle. Her injuries included “lacerations to her face and a septial deviation”. A laceration means a cut. A septial deviation is where “the nasal septum is significantly displaced, making one nasal air passage smaller than the other”. Many people naturally already have a deviated septum. The LAT held that the vehicle in question was an automobile; that the vehicle was being ordinarily used (since parking a vehicle is an ordinary use of a vehicle); and that the vehicle caused the injuries. This is because, but for the vehicle being there, she would not have collided with the vehicle during her fall, and the collision with the vehicle is what directly led to her injuries. As a result, the incident was an “accident” within the meaning of s. 3 of the Statutory Accident Benefits Schedule. Therefore, she did pass the preliminary issue in her statutory accident benefits case.
Causation can be and often is a deciding factor in the determination of the preliminary issue. The tribunal will look at whether the use or operation of the vehicle caused the injuries or damage in the sense that, but for that use or operation, the injuries or damage would not have happened. In the above cases, the applicants both experienced a fall in the proximity of a vehicle but obtained different legal results; this is because the causation test was met in the first case but not in the second. In the first case, the use or operation of the vehicle (its being parked at a particular place on the driveway) caused the applicant’s injuries because, but for it being parked there, she would not have struck it and been injured. In the second case, the use or operation of the vehicle (the applicant’s inspecting and maintaining it) did not cause his injuries; rather, his fall from the top of it, which was a misfortune, was an independent event that broke the causal link.
If you have suffered injuries in an incident involving a motor vehicle, like the ones examined above, contact us to evaluate the specific details of your case’s circumstances and to determine if the incident was an “accident” according to the legislation and thus whether you may be entitled to claim statutory accident benefits for injuries or damages that resulted from it.
 O Reg 34/10 Statutory Accident Benefits Schedule (Effective September 1, 2010) (“SABS”), a regulation made under the Insurance Act, RSO 1990, c. I.8, s 3(1)
 Insurance Act, RSO 1990, c. I.8, s 1
 2021 CanLII 53164 [“Madore”]
 2021 CanLII 54817 [“Montesano”]