Licence Appeal Tribunal
Tribunal File Number: 18-010791/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
[P.F]
Appellant
and
Economical Mutual Insurance Company
Respondent
REASONS FOR DECISION AND ORDER
PANEL: Chloe Lester, Vice-Chair
APPEARANCES: For the Applicant: Mohamed Elbassiouni, Counsel For the Respondent: Bogdan Miscevic, Counsel
HEARD: In Person: July 4, 2019
OVERVIEW
1The applicant, PF, was involved in an incident that occurred on August 1, 2017 when he was physically and psychologically impaired from being exposed to toxic fumes and from viewing the deceased victim of a car accident.
2The applicant applied for benefits under the Schedule1. The respondent denied payment of the benefits on the basis that the incident did not fall under the definition of an “accident” as defined by subsection 3(1) of the Schedule. Specifically, the respondent stated that the applicant was not directly involved in the accident, those vehicles did not come into contact with him, and therefore the incident did not meet the definition of an “accident” in the Schedule.
3The applicant appealed the denial of benefits to the Tribunal.2
RESULTS:
4I find the applicant is not entitled to accident benefits. The injuries he sustained on August 1, 2017 were not from an “accident” as defined in section 3(1) of the Schedule.
BACKGROUND:
5In the early morning of August 1, 2017 an accident occurred between a transport truck and a tractor-trailer (“fatal tractor-trailer collision”). The transport truck was carrying flammable liquid, believed to be paint thinner, and was parked on the shoulder of the 401 high-way. The tractor-trailer, carrying a chalk-like substance, hit the transport truck from behind and caused a fire. The tractor-trailer was fully engulfed in flames and the driver was pronounced dead on the scene. As a result of the accident, both the flammable liquid and chalk-like substance were scattered all over the high-way.3
6The applicant works for a tow truck driving and environmental clean up company. On the day of the accident, the applicant was responsible for cleaning up the two substances that spilled onto the high-way, mainly the flammable liquid. The applicant and his crew arrived on the scene around 6 am. He waited around two hours before he received the go ahead from the police and firefighters that it was safe to proceed. The applicant began placing absorbal around the catch basins (or sewers) to prevent any more liquids from going down them. Absorbal is a fine powder that turns into clay when it comes in contact with a liquid substance. The catch basins are where rain from the roads drain to keep it clear from flooding. The catch basins eventually lead to the rivers and lakes. The catch basins are also very deep (about fifteen to twenty feet deep) to catch non-water type substances and prevent them from getting into our lakes.
7The flammable liquid leaked into eight catch basins. The applicant used a vac-truck to clean them up. A vac-truck is a large truck with two basins and two hoses, one basin is empty, the other contains water. The applicant would use a ladder or hose to get himself about halfway down the catch basins (about ten feet down). He would use the one hose to vacuum the liquid into the empty basin and then the second hose, like a power washer, to rinse the catch basins with water and then would return to the first hose to vacuum the water. These steps were repeated until all eight catch basins were free from the flammable liquid. The vac-truck is turned on and the engines are running in order to operate the hoses. By the time the applicant began cleaning the second catch basin, he began feeling dizzy and light headed. The applicant climbed out of the catch basin to catch his breath and then returned to cleaning it. By the third or fourth catch basin, the applicant was feeling really dizzy, light headed and nauseous. After cleaning all eight catch basins, the applicant returned to placing absorbal on the highway, using a street sweeper and broom to sweep up the clay like absorbal. The applicant said dust was flying everywhere. Later on in the day, the applicant had to re-start the process of cleaning all eight catch basins because when the firefighters rolled up their hoses, it caused more water and flammable liquid to go down them. After completing all eight catch basins for a second time, the applicant indicated he started feeling tightness in his chest. One other colleague whose job was spreading absorbal on the ground and ensuring the flammable liquid did not flow into the catch basins was also not feeling well. During the entire day, the applicant and the other employees were not wearing any protective personal equipment, because none was supplied by his employer.
8The applicant was also responsible for strapping down the deceased driver of the tractor-trailer to the driver’s seat so that when the tow truck removed the vehicle from the scene, the body wouldn’t move. The applicant indicated that after seeing the deceased body, he could not sleep. The driver’s face had melted off and there was a stench to the body.
9Once the applicant completed his tasks, he drove back to the office around 7:00 pm. Once he was at the office, he started feeling numb and tingly and was told he was slurring his speech. Someone from the office drove him home. When the applicant returned home, he went upstairs to sleep, and by the time he took his first step towards his bedroom, he fainted. The applicants friends, who were at his home at the time, called 911 and the paramedics arrived. At the hospital, the applicant was diagnosed with a pneumothorax (collapsed lung). Doctors had to open his chest and insert a chest tube. About a year later, the applicant experienced another collapsed lung which resulted in a surgical removal of an inflamed part of his lung. The results of a collapsed lung and the surgical removal of his lung will have lasting repercussions on physical activities. The applicant says he no longer has the same stamina, he no longer can play sports like he used to, and he no longer takes his daughter swimming, because he is afraid he will not be able to respond in an emergency. The applicant claims he was diagnosed with depression, anxiety and post traumatic stress disorder.
10Just prior to this incident taking place, the applicant had worked a 24 hour shift, slept in his car, and had cleaned up at least one other environmental spill.
THE LAW
11To be eligible for benefits, the applicant must prove the incident meets the definition of an accident under subsection 3(1) of the Schedule. An accident is defined as:
“an incident in which the use or operation of an automobile directly causes an impairment …”
12The parties rely on the Supreme Court of Canada Amos v. Insurance Corporation of British Columbia (“Amos”)4 decision. The leading case on the interpretation of the meaning of an “accident” under the Schedule. In Amos, the Supreme Court of Canada set out a two-part test for determining whether an insured person was involved in an “accident” as defined in the Schedule and thus entitled to statutory no-fault accident benefits:
a. The purpose test: did the accident result from the ordinary and well-known activities to which automobiles are put?
b. The causation test: was there some causal relationship between the applicant’s injuries and the ownership, use or operation of the vehicle, or was it merely incidental or fortuitous?
13The applicant has the onus5 to satisfy the purpose and causation test.
14Since Amos the causation test has been modified to satisfy the strict wording of the Schedule that the injuries must be “directly” caused by the use or operation of a motor vehicle. In Chisholm v. Liberty Mutual Insurance Group (“Chisholm”) the Ontario Court of Appeal adopted the following definition of direct cause found in Black’s Law Dictionary (4th Ed.): “The active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new independent source”.
15In Greenhalgh v. ING Halifax Insurance Co. (“Greenhalgh”) the Ontario Court of Appeal reviewed the caselaw and determined that in order to satisfy the definition of an “accident” under the Schedule an insured must meet the purpose test as set out in Amos and the causation test as set out in Chisholm.
16This test was adopted and amended to meet the Schedule’s current and more narrow definition.6 The applicant must now satisfy the following questions:
a. Purpose test:
i. Did the accident result from the ordinary and well-known activities to which automobiles are put?
b. Causation test:
i. Was the use or operation of the vehicle a cause of the injuries?
ii. 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?
17In establishing the causation test, the case law considers additional questions to aid in defining whether the incident was an accident. For example, the “but for” test used to screen out inconsequential details that could not have accounted for the injuries and the “dominant feature” test used for determining the dominant cause of the injuries.
POSITIONS OF THE PARTIES AND ANALYSIS
18There is no doubt in my mind, that on the balance of probabilities, the applicant suffered physical and psychological injuries as a result of the incident that occurred on August 1, 2017. The symptoms began on the scene of the fatal tractor-trailer collision. The applicant and his colleague both had similar feelings of dizziness, and the applicant’s symptoms worsened over the course of the day. Although the collapsed lung did not occur until the applicant was inside his house and away from the incident, there is enough evidence to suggest the incident caused it. There were also no other intervening events that occurred from the time the applicant left the incident and when he had the collapsed lung. I cannot say for certain what exactly on that day caused the physical impairments, but at least in some respect, it was clearly as a result of being exposed, without personal protective equipment, to the various liquid and powdered substances that were found on the accident scene. The applicant felt a number of symptoms after being down in the catch basin, a confined area, exposed to the flammable liquid. He also was breathing in the powdered substances while spreading the absorbal and sweeping the chalk-like substance that spilled from the tractor-trailer.
19The question becomes whether the incident that occurred on August 1, 2017 meets the purpose and causation test that the incident can be referred to as an accident.
20The applicant argues the incident can be viewed in two separate ways and the two-prong test must be met in either scenario:
a. First, was the fatal tractor-trailer collision to which the applicant responded to and cleaned up considered an accident?
b. Two, was the applicant’s use and operation of the vac-truck considered an accident?
21In interpreting the definition of an accident, the respondent argues that acts and regulations7 should be read:
“… in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object to the Act, and the intention of Parliament.”8
22The respondent also argues insurance policies must be interpreted in such a way that gives effect to the reasonable expectations to both the insured and the insurer.9
23The applicant would like me to interpret the regulation in a broad and liberal manner as it is a consumer protection legislation, but I can only agree with them partly.
24It is important in interpreting the definition of accident to remember that the Schedule is a remedial consumer protection legislation. However, the definition of an accident has been amended over time and has become more stringent to limit the number of claims that can qualify as an accident.10 Therefore, when interpreting the definition of an accident I must consider these two perspectives.
Scenario 1: Does the fatal tractor-trailer collision qualify as an accident?
The purpose test: Did the accident result from the ordinary and well known activities to which automobiles are put?
25The applicant argues that the fatal tractor-trailer collision meets the purpose test in qualifying the incident as an accident, because both vehicles, the truck and tractor-trailer were driving at the time of the collision and transporting items, an ordinary and well-known use that automobiles are put in. When the truck and tractor-trailer collided, substances spilled from the vehicles which caused the driver to pass away. Those events directly impaired the applicant.
26The respondent relies on numerous cases to support their position that the fatal tractor-trailer collision does not meet the purpose test. The respondent argues that purpose test is met when an automobile is driving, parking, when someone is entering, exiting, loading or unloading the vehicle, just to name a few.11 An incident is not considered an accident when retiring a disabled truck to store dynamite, diving off of a platform of a truck, negligently using a truck to prop up something, and assaults.12 The respondent also relies on the Khan13 decision to support their position that repairing a vehicle no longer qualifies as an accident. In this case, the respondent argues the vehicles were not being utilized in a way that meets the purpose test.
27At the time of the fatal tractor-trailer collision, the vehicles were operational, physically being driven and transporting items. I would agree, ordinary and well-known activities to which a truck and tractor-trailer would be used for. That is why the drivers of those vehicles would be covered under accident benefits if they sustained injuries as a result of the collision. But at the time the applicant arrived on the accident scene, both vehicles had already been in a collision, were not operational, and the tractor-trailer was on fire.
28I find the applicant’s incident would not meet the purpose test because getting into a collision, which caused the vehicles to be non-operational, on fire, and necessitated being towed wouldn’t qualify as ordinary and well-known activities to which automobiles are put.
29In reviewing the numerous case law provided by the respondent, the applicant was not driving, parking, entering, exiting, loading or unloading the vehicle. These examples of ordinary and well-known activities to which automobiles are put are not any of the scenario’s the applicant was involved in. He merely attended the accident scene after an accident had occurred. Therefore, I cannot find the applicant’s incident could meet the purpose test by being in the vicinity of an accident that has already occurred.
Causation test: Was the use or operation of the vehicle a cause of the injuries? Was there an intervening act? Can it be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries?
30The applicant relies on the Petrosoniak14 and Umer15 decision to support the position the fatal tractor-trailer collision meets the purpose test. The Petrosoniak decision concerns a cyclist who was injured when he lost control of his bicycle when it came in contact with hydronic fluid that had leaked from a motor vehicle onto the road. In this case, the insurer conceded that the definition of an “accident” does not require the injured party to come in contact with the vehicle. That being said, the decision goes onto address that the incident would have to involve an unbroken chain of events that began with the use and operation of a vehicle and result in an injury, to be considered an accident. The decision found that the fluid on the road that caused the bicyclists injuries originated from the use and operation of a vehicle. The Umer decision is about a taxi driver who took his vehicle to a mechanic shop. As he was observing the repairs, gasoline leaked from his vehicle, caught fire and caused third degree burns to him. The decision agreed that repairing one’s vehicle would be considered a part of the use and operation of a vehicle, and in the process of repairing the vehicle started an unbroken chain of events that resulted in injuries to the taxi driver. This incident met the purpose and causation test and was rendered an accident.
31The applicant relies on both of these decisions to support his position that substances that leak from a vehicle and caused injuries should qualify as an accident. In this case, the applicant argues that the fatal tractor-trailer collision caused substances to leak onto the roads and the death of one of the drivers. Those incidents began an unbroken chain of events that eventually resulted in the injuries sustained to the applicant.
32However, since Umer was released, the Supreme Court of Canada in Vytlingam affirmed that repairing one’s vehicle no longer qualifies as an accident as coverage is limited to motor vehicles being used as motor vehicles. In Vytlingam, two individuals packed boulders in their car and drove to a highway overpass. They got out of their car and dropped a boulder on Mr. Vytlingam´s car as it drove under the overpass. In order for coverage to apply, the injuries suffered by Mr. Vytlingam had to be sufficiently connected to the use and operation of the tortfeasor´s car for it to be concluded that the tort was committed by a motorist. The Court concluded that there was not enough connection for coverage to apply.
33In Vytlingam, the Court appeared to narrow the jurisprudence concerning use and operation of an automobile and suggests a common sense approach. The Court cited with approval the decision in Continental Stress Relieving Services Ltd. v. Canada West Insurance Co. of Canada, where it was determined that a vehicle repairman whose use of a cutting torch caused gasoline fumes to ignite could not be considered an at-fault motorist. The Court affirmed that the insured was not using the motor vehicle when he was repairing it in a garage. Therefore, the automobile could no longer function as a motor vehicle, or be considered in use or operation, if it was being repaired.
34Using similar reasoning, when the truck and tractor-trailer collided, they were no longer operational, they were no longer functioning as a motor vehicle. Therefore, the toxic spill and resulting impairments could not stem from a direct result of the use and operation of a vehicle. The fatal tractor-trailer collision could not meet the causation test and does not qualify as an “accident”. More specifically, the use and operation of the truck and the tractor-trailer with respect to the victims of the collision resulted in an accident which met the definition in the Schedule – this was not the case for the applicant. The vehicles were no longer in use and operation by the time the applicant arrived on the scene.
35What the applicant is really asking me to decide, is whether the respondent should be responsible for any impairments that arise out of the aftermath of an accident that has already occurred?
36The answer is no. As in Vytlingam, when a vehicle ceases being used as automobiles, we cannot expect the insurance companies to provide coverage. I agree with the respondent that 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.
37In reviewing the Petrosoniak decision, it can be differentiated because in that case the vehicle was being driven at the time it leaked hydraulic fluid on the ground that eventually caused impairments to a cyclist. The vehicle was clearly in use and operation. In this case, it was not when either vehicle was being driven that the substances leaked, but it was a result of the collision.
38The applicant also argues that section 3 of the Schedule provides that if the insured person sustains an impairment as a direct result of an incident involving a use or operation of an automobile, the incident will constitute an accident, and therefore, the insured person will be entitled to accident benefits. It is interesting the applicant specifically refers to an “insured person”. The only way for an insured person to be covered under accident benefits, when they have not been involved in an accident, is when they suffer psychological injuries as a result of an immediate family member who was involved in an accident. The applicant cannot be defined as insured person under section 3 of the Schedule because he is not related to anyone involved in the fatal tractor-trailer collision.
Scenario 2: Does the use and operation of the vac-truck qualify as an accident?
The purpose test: Did the accident result from the ordinary and well known activities to which automobiles are put?
39The applicant was on the scene of the accident for approximately twelve hours. A portion of that twelve hours was spent on the scene vacuuming the flammable liquids and cleaning out the catch basins. In order to use the vac-truck and operate the hoses, the vehicle must be turned on and engines running. The ordinary and well-known activities of a vac-truck is to vacuum liquids into a basin and transport them to another location. Therefore, during that time the vac-truck would be in use and operation and meet the purpose test.
Causation test: Was the use or operation of the vehicle a cause of the injuries? Was there an intervening act? Can it be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries?
40The incident does not meet the causation test. The causation test considers the “but for” test, the “dominant feature” test, and was the use and operation a “direct” cause of the applicant’s injuries or were there intervening factors.
41The applicant argues that since the vac-truck was in use and operation while vacuuming the liquids, the impairments stemmed from the use of that vehicle and therefore should qualify as an accident.
42As stated in Chisholm, the purpose of the “but for” test is to eliminate factually irrelevant causes for determining the root cause of the impairments. Under the modified causation test from Chisholm and Greenhalgh, “it is not enough to show that an automobile was the location of an injury, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.” To illustrate this point. In that case, a driver was catastrophically injured by gun shots while driving his car. The decision goes on to explain that the gun shots caused the impairment suffered by the driver, not the use or operation of the vehicle.
43In this case, the use and operation of the vehicle was not the cause of the injuries. It was exposure to the toxic flammable substance, the chalk-like substance and absorbal for an extended period of time. There is no doubt that the applicant was exposed to high levels of the flammable liquid while using the vac-truck, but I lack evidence to demonstrate that the exposure to the flammable liquids while using the vac-truck was the primary cause of the impairments. The applicant testified there was another colleague, who was not using the vac-truck, but was also exposed to the various substances and he had experienced similar symptoms. The evidence is not clear whether it was mere exposure to the chemicals or the exposure while operating the vac truck that caused the impairments. So, if you remove the vac-truck from the equation, the applicant would still have been exposed to those three substances over a 12 hour period of time. Therefore, it could not be the use and operation of the vac-truck that directly caused the impairments.
44Also, the applicant does not meet the dominant feature part of the test. In Greenhalgh, the Ontario Court of Appeal suggested that “in some cases, it may be useful to ask if the use or operation of the automobile was the dominant feature of the accident; if not, the link between the use and operation and the impairment may be too remote to be called "direct". A factor is a "dominant feature" where it is the aspect of the situation that most directly caused the injuries.”
45In this case, the use and operation of the vehicle was not the dominant feature of the accident. The substances did not flow from the use and operation of the vac-truck like in the case of Petrosoniak. The substances flowed from the aftermath of an accident and in this case, it was already determined that the aftermath of the fatal tractor-trailer collision cannot create another “accident”.
46For an incident to be determined as an accident the use and operation has to directly cause the impairment. Its not simply being in the vicinity of an accident, or a vehicle that deems an incident an accident, but it’s the use and operation must have a direct causal connection to the impairments. In this case, the use and operation of the vac-truck would be considered ancillary to the impairments, as in the case of the Greenhalgh decision, and it was the exposure to the three substances over a long period of time that were the dominant feature of the impairments, not the vehicle.
47The incident does not meet the causation test.
CONCLUSION:
48Overall, the applicant has not been able to prove on the balance of probabilities that he meets the purpose and causation test in the first or second scenario. The incident cannot be referred to as an accident and therefore the applicant is not entitled to accident benefits.
ORDER:
49I order that the application be dismissed.
Released: October 29, 2019
Chloe Lester Adjudicator
Footnotes
- Statutory Accident Benefits Schedule -Effective September 1, 2010 (the “Schedule”)
- Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
- Tab A – Global News accident report and video
- Briton Amos v. Insurance Corporation of British Columbia, 1995 3 R.C.S. “Amos”
- Scarlett v. Belair Insurance Company, 2013 CarswellOnt 17362, [2013] O.F.S.C.D. no. 227, Martin et al. v. 2064324 Ontario Inc. c.o.b. as Freeze Night Club et al 2013 ONCA 19
- Chisholm v. Liberty Mutual Group, (2002) 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (ON CA), Greenhalgh v. ING Halifax Co. (2004) 2004 CanLII 21045 (ON CA), O.J. No. 3485 (ON CA) “Greenhalgh”, Economical Mutual Insurance Company v. Caughy 2016 ONCA 226, Downer v. The Personal Insurance Company 2012 ONCA 302, Martin et al. v. 2064324 Ontario Inc. c.o.b. as Freeze Night Club et al 2013 ONCA 19
- Ayr Farmers Mutual Insurance Co. v Wright, 2016 ONCA 789
- Rizzo & Rizzo Shoes Ltd., Re. [1998] S.C.R. 27
- Citadel General Assurance v Vytlingam, 2007 SCC 46
- Economical Mutual Insurance Co. v Caughly, 2016 ONCA 226
- 16-000131 v TD Insurance, 2017 CanLII 43837 and Economical Mutual Insurance v Caughy, Carr (Representative of) v TD General Insurance Co. (November 17, 2016) FSCO File No.: P15-00062, Portch v Markel Insurance Co. of Canada (March 20, 1995), OIC File No.: A-007701, A-008360, Wawanesa Mutual Insurance Co. v Cooper (November 7, 2008), FSCO File No.: P08-00015, Whipple v Economical Mutual Insurance Company, 2012 ONSC 2612 (Div. Ct.), Omand v Disabled & Aged Regional Transit System, 1993 CarswellOnt 25 (Gen. Div.), Carr (Representative of) v TD General Insurance C. (November 17, 2016), FSCO File No.: P15-00062, Dittman v Aviva Insurance Company of Canada, 2017 ONCA 617
- Citadel General Assurance v Vytlingam 2007 SCC 46 “Vytlingam”, Intact Insurance Co. v Roberts (March 15, 2017), FSCO File No.: P16-00009, Olesiuk v Kingsway General Insurance Co. (September 7, 2011), FSCO File No.: A10-002609
- FSCO File No. A06-002205 Khan and Certas Direct Insurance Company “Khan”
- Petrosoniak and Security National - FSCO A98–000198 “Petrosoniak”
- Umer and (Lloyd's) Non-Marine Underwriters – Arbitration - 2003-04-03 - FSCO A02 B 000721 “Umer”