Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2016 ONFSCDRS 173
Appeal P15-00072
OFFICE OF THE DIRECTOR OF ARBITRATIONS
IGNAZIO SALAMONE Appellant
and
AVIVA CANADA INC. Respondent
BEFORE: David Evans
REPRESENTATIVES: Alexander Voudouris for Mr. Ignazio Salamone Robert H. Rogers for Aviva Canada Inc.
HEARING DATE: April 18, 2016
APPEAL ORDER
Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:
The appeal is allowed. Paragraph 1 of the Arbitrator’s November 30, 2015 decision is rescinded and replaced by the following:
Mr. Salamone was involved in an accident as defined by s. 3(1) of The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as it read immediately prior to April 1, 2016.
If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
June 16, 2016
David Evans Director’s Delegate
Date
REASONS FOR DECISION
I. NATURE OF THE APPEAL
On February 2, 2013, while driving his van, Mr. Salamone had a heart attack and lost consciousness. The van he was in hit one guardrail and slid along it until it hit a second, then the van left the road and ended up angled over a ditch. The damage to the van and its internal layout prevented a CPR-trained bystander from immediately treating Mr. Salamone.
Mr. Salamone claimed that the delayed treatment caused severe neurological impairments.
Arbitrator Arbus found that the incident failed to meet the definition of “accident” as defined in s. 3(1) of the 2010 SABS.1 The Arbitrator found that the heart attack was an intervening event and that any later events – like the delayed treatment – were irrelevant.
Mr. Salamone appeals this finding that precludes him from seeking statutory accident benefits from his insurer, Aviva Canada Inc.
II. BACKGROUND
The issues in this case turn on the delayed treatment for Mr. Salamone’s heart attack.
Although help for Mr. Salamone was immediately at hand after the incident, it did not avail. Mike Grey, the bystander mentioned above and a former paramedic trained in First Aid and CPR, tried to help Mr. Salamone within one minute of seeing the van slide along the guardrail. He could not enter through the van’s damaged driver’s door, and from the passenger side he could not perform CPR on Mr. Salamone or extricate him safely from the van. Eleven minutes later EMS personnel arrived, who then needed more time to remove and treat Mr. Salamone. By then he had sustained a severe neurological impairment.
The Arbitrator considered the relevant case law in determining whether this incident met the meaning of “accident.” The term “accident” is defined in s. 3(1) of the 2010 SABS as “an incident in which the use or operation of an automobile directly causes an impairment,” and impairment is defined as meaning a loss or abnormality of a psychological, physiological or anatomical structure or function.
The Arbitrator cited Greenhalgh v. ING Halifax Insurance Co. (2004), [2004 CanLII 21045 (ON CA)](https://www.canlii.org/en/on/onca/doc/2004/