DIVISIONAL COURT FILE NO.: DC-21-00000966-00
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. Edwards, Backhouse and Lococo JJ.
BETWEEN:
JEFF TRAVIS
Appellant
– and –
AVIVA INSURANCE COMPANY
Respondent
Alexander Voudouris, Sherilyn Pickering and Brooke McKenzie, for the Appellant
Pamela Quesnel and Andy Smith, for the Respondent
HEARD IN TORONTO: September 20, 2023
m.l. eDWARDS, r.s.j
1This is an appeal from the Licence Appeal Tribunal (“LAT”) decision of adjudicator Paluch dated November 25, 2021 and the reconsideration decision of Vice-Chair Lester dated June 30, 2022 (the reconsideration decision). The appeals arise out of a claim by Mr. Travis for statutory accident benefits. Mr. Travis was a fire fighter who responded to the 2018 Toronto van attack where a rental van was used to run down and kill 10 individuals.
Nature of the Appeal
2Mr. 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”).
3Mr. Travis appeals the decisions of the LAT on grounds that the decision makers made errors of law where conclusions are reached that Mr. Travis was not involved in an “accident” as defined in the SABS. Mr. Travis seeks an order setting aside the decisions with a finding that he is entitled to claim accident benefits under the SABS. In the alternative Mr. Travis seeks an order remitting the matter back for a new hearing before the LAT.
The Facts
4April 23, 2018 is a day that will never be forgotten in the history of the City of Toronto. A rental van was driven into innocent pedestrians causing the death of ten individuals and further causing serious and devastating injuries to many more. The perpetrator of this attack has been convicted of murder. In accordance with the Reasons for conviction of Molloy J. this court does not intend to refer to the perpetrator in any other way other than as John Doe.
5Mr. Travis was a City of Toronto fire fighter who responded to the scene of the attack. There is no dispute that Mr. Travis did not actually see the rental van strike any of the pedestrians. Mr. Travis arrived at the scene very shortly after and was confronted with what can only be described as a gruesome scene where he was responsible for guarding the bodies of the victims and helping the injured.
6After 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.
7Mr. 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.
8There is no dispute from a factual perspective that Mr. Travis suffers from a psychological impairment as a result of what he had witnessed during the course of his duties as a fire fighter on April 23, 2018.
Court’s Jurisdiction and Standard of Review
9This court’s jurisdiction is governed by s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “Act”). An appeal from a decision of the LAT is restricted to a question of law only. As a statutory appeal on a question of law the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65, [2019] 4 S.C.R. 653, at para 37.
The Decision of the LAT
10Adjudicator 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 45020 (ON CA), 60 O.R. (3d) 776 (C.A.) (Chisholm) and Greenhalgh v. ING Halifax Insurance Co (2004), 2004 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.
11Adjudicator Paluch in his Reasons considered whether the incident arose out the use or operation of an automobile and whether the use or operation of an automobile directly caused Mr. Travis’ injuries. Throughout the LAT decisions and throughout these Reasons, the van attack has been and will continue to be referred to as the “incident”. In referring to the van attack as the incident, we in no way minimize the tragedy of the events of April 23, 2018 nor do we in any way minimize the resulting impact on Mr Travis.
12The decision of Arbitrator Paluch addressed two scenarios specifically whether Mr. Travis’ involvement in seeing the carnage left by the rental van constituted an accident and whether Mr. Travis’ use and operation of the fire truck constituted an accident.
13As it relates specifically to the rental van, Adjudicator Paluch determined that John Doe was “clearly not using the Rider van within the scope and course of its ordinary functions or how that particular vehicle was to be used”. John Doe used the rental van as a weapon to run over, kill and injure the pedestrians that he did. Having made this determination, Adjudicator Paluch concluded that the rental van could not meet the Purpose Test. As it relates to the causation test with respect to the rental van, Adjudicator Paluch concluded at paras. 51 and 52 of his Reasons:
51However if I am wrong regarding my analysis regarding the purpose test as it applies to the Rider Van scenario, I also find that the causation test is not met based on the principle and rationale from P.F. That is when a vehicle ceases being used as automobiles; we cannot expect the insurance companies to provide coverage. If I was to accept the applicant’s position, then that could potentially open claims for anybody who was impaired by being on the accident scene, including first responders, or anyone who was injured by passing by the accident to claim for accident benefits. This would not be the intention of the Schedule that over the years has narrowed the definition of an accident.
52Here the applicant merely attended the accident scene after the incident occurred. The van was no longer in use and operation by the time the applicant arrived on the scene. The incident also does not meet the causation test under the first scenario.
14I pause here as it relates to the quotation referenced above where Adjudicator Paluch stated “here the applicant merely attended the accident scene…”. The use of the word “merely” is in our view an unnecessary reflection on what Mr. Travis did during the course of his duties at the scene of the incident. Ultimately, the unfortunate use of the word “merely” does not impact on the legal analysis set forth in the Reasons of Adjudicator Paluch.
15As it relates specifically to the fire truck, Adjudicator Paluch not surprisingly determined that it met the purpose test given that the fire truck was being operated in a manner that was consistent with the ordinary use and well-known activities of this type of vehicle. Having determined however that the fire truck “may have contributed to the injuries, it cannot be said to have directly caused the injuries”. In coming to this determination, Adjudicator Paluch cited the Court of Appeal decision in Greenhalgh and framed the causation test as follows:
Was the use or operation of the vehicle a cause of the injuries.
If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening 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 injuries.
16In answering the aforesaid questions Adjudicator Paluch came to the conclusion that even if the fire truck was removed from the equation, Mr. Travis would still have been exposed to the aftermath of the incident. Adjudicator Paluch determined that Mr. Travis’ psychological injuries “were not the direct result of the accident or even through the use or operation of a motor vehicle, but rather the aftermath of the accident, where he rushed to the scene to aid the victims”. The fire truck as described by Adjudicator Paluch “was merely in the vicinity of the aftermath of the accident. More is required than establishing that the fire truck brought Mr. Travis to the location of the incident.
The LAT Reconsideration Decision
17Mr. Travis’ request for reconsideration was denied by Vice-Chair Lester in his reconsideration decision. Vice-Chair Lester concluded that even though there may have been an error as to whether the rental van met the purpose test, such error would not have changed the result of the decision because Adjudicator Paluch had correctly concluded that the causation test was not met.
18In his reconsideration decision, Vice-Chair Lester also decided that there was no error in how Adjudicator Paluch concluded that the fire truck did not directly cause the injuries in question as “mere location and proximity of a vehicle to the location of the impairments does not necessarily result in an accident occurring”.
Legal Principles
19In 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:
Did the incident arise out of the use or operation of an automobile (the purpose test); and
Did such use or operation of an automobile directly cause the impairment (the causation test).
20It 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.
21In 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.
22When the matter came before the Divisional Court, Ryan Bell J. at paras. 15 and 16 stated:
15In 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]
16While 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.
The Issues
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?
23The 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.
24In 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:
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”;
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? Questions 2 and 3 are often referred to as the causation test.
25The Appellant argues that the adjudicator improperly added factors to the Greenhalgh test never contemplated by the Court of Appeal. We disagree . Adjudicator Paluch did not add anything to the test for an accident as it relates to the rental van. He looked specifically at the causation test when he stated the following, at paragraphs 51 and 52:
…I also find that the Causation Test is not met based on the principle and rationale from P.F. That is when a vehicle ceases being used as automobiles; we cannot expect the insurance companies to provide coverage. If I was to accept the applicant’s position, then that could potentially open claims for anybody who was impaired by being on the accident scene, including first responders, or anyone who was injured while passing by the accident to claim for accident benefits. This would not be the intention of Schedule that over the years has narrowed the definition of an accident.
Here, the applicant merely attended the accident scene after the incident occurred. The van was no longer in use and operation by the time the applicant arrived on the scene. The incident also does not meet the Causation Test under the first scenario.
26The Appellant raised the same issue in his application for reconsideration. Vice-Chair Lester dismissed it and reaffirmed the Greenhalgh causation test. Vice-Chair Lester determined that the Appellant’s impairments were not directly caused by the rental van. We find no error of law in this regard where Vice-Chair Lester states in his reasons at para 28-29 as follows:
Adjudicator Paluch did not address these decisions in relation to his reasons for why the [rental] van did not meet the causation test. To that end, as noted by Aviva, the adjudicator is not obligated to mention every submission in his decision. As written in Chisholm, the purpose of the “but for” test is to eliminate factually irrelevant scenarios for determining the root cause of the impairments. In this case, the root cause of the impairments was exposure to the horrific scene Mr. Travis saw. Even if the adjudicator had reasoned his findings using Greenhalgh and Chisholm in his decision for the explanation of the causation test, I fail to see how it would lead to any other conclusion already expressed by Adjudicator Paluch. As discussed above, the “but for” test is only used as an aid in determining the causation test. Meeting the “but for” test does not automatically mean that the causation test is met. Even though Adjudicator Paluch’s decision does not detail the Greenhalgh and Chisholm decision, it adopts the reasoning in P.F. which explains the purpose of those tests and how the incident does not meet the test. Adjudicator Paluch viewed this incident as very similar to the facts in P.F. He agreed with the reasons in P.F. and found them supportive of his conclusions and how he viewed the incident.
Also, the “but for” test and “dominant feature” test is used to determine whether the incident meets the causation test. In my opinion, there was no need to go into great detail on these tests because it was already decided that the impairments could not have been directly caused by the use or operation of the vehicle. In paragraphs 51 and 52, the Adjudicator relied heavily on the same reasons as outlined in P.F. that “when a vehicle ceases being used as automobiles; we cannot expect the insurance companies to provide coverage”. (Emphasis added)
27The appellant argues that he was involved in an accident whether it was because of the death and destruction caused by the rental van and or being transported to the scene of the carnage in his firetruck. The Adjudicator found at para 69 of his Reasons that while the fire truck drove the Appellant to the scene of the accident, it was not the dominant feature of his injuries. He also found that the use or operation of the fire truck did not cause the Appellant’s injuries. These were factual findings open to him on the evidence and they are not reviewable by this Court.
28Having 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.”
29A 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.”
30While 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.
31In 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.
32The 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.
The Charter Argument
33The Appellant has also argued that the decision of the LAT drew a discriminatory distinction between physical injuries and mental injuries without proportionately balancing the protection of the Appellant’s s. 15 Charter rights. It is suggested that the manner in which the adjudicator distinguished the case law would have the affect of imposing an additional burden on the Appellant that would not be imposed on a claimant presenting a claim based on physical disability. In that regard, it is noted that the adjudicator dismissed the Appellant’s injuries because he “sustained only psychological injuries from witnessing the aftermath of the accident” which it is argued implies that mental impairments are somehow less important than physical impairments (emphasis added)
34In our view the Charter argument can not succeed. Procedurally the Appellant did not provide the requisite notice to the Attorneys’ General of Canada and Ontario as required by the Rule 11 of the LAT Rules.
35Adjudicator Paluch did indicate in his reasons that the Appellant “only” suffered a psychological injury. The use of the word “only” was unfortunate. However, a fair reading of the entirety of the Reasons of Adjudicator Paluch makes clear that he made no finding that psychological impairments should be treated differently than physical impairments. Simply put, his analysis was focused on determining whether the injuries suffered by the Appellant were caused as a result of the use or operation of a vehicle and whether the use and operation of a vehicle was the direct cause of the injuries.
36Even if the Appellant had complied with the LAT Rules and provided the requisite notice to the Attorney General, we see no merit to the Charter argument.
37For these reasons the Appeal is dismissed with costs payable by the Appellant to the Respondent in the agreed amount of $10,000.
Edwards R.S.J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Lococo J.
Released: March 22, 2024
Travis v. Aviva Insurance Company, 2024 ONSC 1683
ONTARIO
DIVISIONAL COURT
R.S.J. Edwards, Backhouse and Lococo JJ.
BETWEEN:
JEFF TRAVIS
– and –
AVIVA INSURANCE COMPANY
REASONS FOR JUDGMENT
EDWARDS R.S.J.
Released: March 22, 2024
Footnotes
- Leave to appeal refused, [2004] S.C.C.A. No. 461.
- SABS, O.Reg.34/10, s. 3(1).