Tribunal File Number: 17-005135/AABS
Case Name: 17-005135 v Motor Vehicle Accident Claims Fund (MVACF)
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
N. P. Applicant
and
Motor Vehicle Accident Claims Fund (MVACF) Respondent
PRELIMINARY ISSUE HEARING DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
Applicant: N.P. Counsel for the Applicant: Victoria Polyakevich Counsel for the Respondent: Andrew Choi
HEARD In-Person: February 22 and March 15, 2018
OVERVIEW:
1The applicant, N.P., was involved in an incident on July 12, 2015, and sought benefits from the respondent, Motor Vehicle Accident Claims Fund (‘MVACF’) pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). N.P’s claim for medical benefits was denied by MVACF and N.P. filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the matter.
2This is a preliminary issue hearing, brought by MVACF in this matter. If N.P. is unsuccessful at this hearing, he will not be entitled to any benefits sought under the Schedule that relate to the incident that took place on July 12, 2015.
ISSUE IN DISPUTE:
3The issue to be decided at this hearing is:
(i) Was the applicant involved in an “accident” as defined in section 3(1) of the Schedule?
RESULT:
4N.P. was involved in an “accident” as defined by section 3(1) of the Schedule and as a result, N.P. may be entitled to benefits under the Schedule.
Facts:
5According to N.P.’s testimony, on July 12, 2015, he was on rollerblades on a bicycle trail westbound on Lakeshore Blvd East approaching Cherry Street.
6According to N.P., he was going to cross the street at the cross walk at a green light and from his left, a van appeared. The van did not slow down and was “moving across his way”. The van failed to yield to him, which caused N.P. to fall to the ground. No impact was made between the van and N.P. The van did not remain on scene. N.P. testified he sustained injuries to his head, left wrist and a dental injury.
7The incident occurred in front of the entrance to the Athletic Village. On the day of the incident, there was an occupied police van set up in front of the entrance to the Athletic Village. N.P. states that he spoke with a police officer and a volunteer that were at the scene. N.P. indicated the police officer did not complete a report.
8N.P. submits that he spoke with an officer at the scene, D.C. Dunk; however, no notes were taken. On August 13, 20151, a Toronto Police Traffic Division police report was filed. A statement was given by N.P. that detailed the incident. The August 13, 2015 statement is the only police report filed in respect to the incident.
9In the police report dated August 13, 2015, N.P. stated that he was travelling eastbound and the white van involved was travelling southbound through the Cherry St. intersection. This is contrary to N.P.’s submission at the hearing, where he indicated he was travelling westbound. In N.P.’s signed statement dated September 16, 20152, he indicates that “suddenly from my left a van appeared”.
10N.P. argued that, he would not have fallen if not for the white van, as he was an experienced rollerblader, that, having to brake suddenly and avoid hitting the van, he fell and sustained injuries, the most significant being a fractured wrist.
11MVACF argued that the use or operation of the vehicle was not a direct cause of his impairment but rather, an unexplained event that is not supported by the statement of D.C. Dunk.
12MVACF went on to argue that N.P. did not sustain the injuries as claimed. MVACF takes the position that the injuries may have been sustained elsewhere or by some other means, but none of which were as the result of an accident as defined by the Schedule.
13MVACF relied on evidence presented by D.C. Dunk at the hearing and within his written statement3 that he was positioned in front of the entrance to the Athletic Village for access duties on the date of the incident. D.C. Dunk’s (southbound) view of the area was facing the east/west traffic direction on Lakeshore. D.C. Dunk recalled that at the time of the incident, he observed N.P. travelling west to east.
14D.C. Dunk described the details of the incident as having observed N.P. rollerblading eastbound and then laying himself down, with his (N.P.’s) legs out on the road. D.C. Dunk said he approached N.P., “who appeared aggravated”. D.C. Dunk did not observe N.P. to have sustained any injuries. D.C. Dunk further stated that he did not have time to do a report as he did not speak to N.P. for long. D.C. Dunk observed N.P. “get up on his own power” and was not aware of anything that could have caused the incident or injuries to N.P.
Analysis:
15The onus is on N.P. to show that the incident that occurred meets the definition of an “accident” as described in the Schedule. For the reasons that follow, I accept with N.P.’s version of the events that he had an incident with a motor vehicle that caused his injuries and therefore, meets the definition of accident pursuant to the Schedule.
Law:
“Accident” defined:
16Section 3(1) of the Schedule provides the meaning of an “accident”:
“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.
17The leading case law, established by the Supreme Court of Canada, has set out the following two-part test, in which both requirements must be satisfied4:
(i) Purpose test: Did the incident arise out of the ordinary use or operation of an automobile?
(ii) Causation test: Did the use or operation of an automobile directly cause the impairment?
(i) Purpose test: Did the incident arise out of the use or operation of an automobile?
18The purpose test asks whether the incident resulted from the ordinary use or operation of the vehicle. In this case, the parties are not arguing whether or not this incident arose out of the ordinary use of or operation of an automobile. As a result, I do not need to address the purpose test; I will focus on the causation test to determine whether the subject incident constitutes an “accident”.
(ii) Causation test: Did the use or operation of an automobile directly cause the impairment?
19In the causation test, N.P. must first establish that the use or operation of an automobile was a cause of the injuries. If that is established, N.P. must then satisfy that there was no intervening act(s) that resulted in the injuries that cannot be said to be part of the course of the ordinary course of events. The question is whether it can be said that the use or operation of the vehicle was a direct cause of the injuries.
20MVACF argued that the fall was not a “direct cause” from the use or operation of a motor vehicle. N.P. was rollerblading, there was no vehicle involvement, and the incident was not an accident. Therefore, the incident does not satisfy either the purpose or causation test.
21N.P. submits that there need not be contact with a vehicle to constitute an accident, only that a vehicle was the cause of the incident. However, MVACF’s position is that there was no vehicle involved. They base this on the statement of D.C. Dunk.
22I disagree with MVACF’s position that the applicant’s fall was not a “direct cause” from the use or operation of a motor vehicle. MVACF relies on D.C. Dunk’s statement of November 16, 2017, made over 2 years post-accident and for the purpose of this hearing, without any contemporaneous notes made from the time of the incident or report filed.
23I accept the events as detailed by N.P. in both the August 2015 and September 2015 statement. I am satisfied that there were no intervening acts that may have been the cause of the injuries. As a result, I find that N.P. has met the causation part of the test.
24In determining whether this incident meets the causation test, I have considered factors such as consistency of statements and the balance of probabilities when analyzing whether a motor vehicle directly caused N.P’s impairment. Having found that a motor vehicle directly caused N.P.’s impairment, the incident which N.P. was involved in does fall within the definition of an “accident” as per the Schedule.
ORDER:
25The application is granted. N.P. is allowed to pursue his appeal for the medical benefits in dispute.
Date of Issue: May 23, 2018
Derek Grant, Adjudicator
Footnotes
- General Occurrence report taken by Ralph Reloza dated August 13, 2015
- Signed statement of N.P. to Maria Mikhailitchenko dated September 16, 2015
- Statement of Detective Constable Corey Dunk dated November 16, 2017
- Amos v. Insurance Corporation of British Columbia, (1995) 1995 CanLII 66 (SCC), 3 S.C.R. 405