RECONSIDERATION DECISION
Before: Dawn Kershaw, Vice-Chair Date: June 28, 2019 File: 17-006380/AABS Case Name: S.B. v. Liberty Insurance
Written Submissions By: For the Applicant: Gurdeep S. Nanua, Counsel For the Respondent: Aaron S. Murray, Counsel
INTRODUCTION
1The respondent’s request for reconsideration, filed in August 23, 2018, with submissions filed in January 2019, arises from the Tribunal’s August 9, 2018 decision. The decision found that the applicant’s injuries resulted from an “accident” as defined in Section 3(1) of the Schedule.
2By way of background, the applicant was a mail carrier delivering mail to a community mailbox when she sustained serious injuries as a result of being hit by a cyclist while on a sidewalk near her cargo van (“vehicle”) on September 14, 2016. The applicant had parked her vehicle up beside the mailbox and was standing somewhere on the passenger side of it when the incident occurred.
3The Tribunal concluded from a review of the evidence that the incident constituted an “accident” as defined in the Schedule, and she therefore was entitled to accident benefits.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
5As explained below, the respondent’s request for reconsideration is denied.
DISCUSSION AND REASONS
6There are limited grounds upon which a person can request a reconsideration. In this case, the applicant asserts that the Tribunal made a significant error of law and of fact such that the Tribunal would likely have reached a different decision had the error(s) not been made. The respondent asserts that it therefore is entitled to a reconsideration pursuant to section 18.2(b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).
7I am not satisfied in this case that the Tribunal made a significant error of law or facts such that the Tribunal likely would have reached a different decision if it had not made the error(s).
8First, the Tribunal correctly set out the definition of “accident” as follows:
“accident” means an incident in which the use or operation of an automobile directly causes an impairment […]
9In considering the definition of “accident” the Tribunal also engaged in a proper analysis of the purpose and causation tests.
10She also clearly set out the facts. I find that even where there may be slight differences in the findings of facts, the Tribunal addressed those.
11For the reasons set out below, the respondent’s request is denied.
No Error of Facts
12The respondent asserts that the Tribunal made the following errors of fact:
(No) Contact Between Applicant and Vehicle
13By way of background, the applicant was examined under oath about the incident on November 15, 2016. She also swore an affidavit on February 14, 2018 about the incident as part of her submissions for the written hearing.
14The respondent asserts that the Tribunal erred in accepting and relying on the applicant’s affidavit evidence that she “believes” her right shoulder hit the car in light of other evidence that (i) she lost consciousness immediately; (ii) at her examination under oath (“EUO”) said she did not know how she fell or what happened to her body; that her last memory was putting something in or taking something out of her vehicle; that she knew she hit the ground when she fell because of pain in her right shoulder; and that she did not know if both vehicle doors were open. The respondent submits that the Tribunal had no basis for finding that the applicant struck any part of her body on the vehicle.
15The applicant for her part states that at the EUO, she was asked if she believed she fell to the ground and she said she did, but she was not asked if her shoulder came into contact with the vehicle. When asked how far from the vehicle she was when she was knocked down, she said she usually is either in the vehicle or right outside it. The applicant swore in her affidavit that she remembers standing on the sidewalk with the passenger door open. She submits that though she was unsure at the time of the accident or during the EUO if she hit her shoulder on the vehicle, she subsequently regained some memories, and her affidavit reflects that she thinks she struck her shoulder on the vehicle as she fell. She submits that the Tribunal correctly accepted this as her recollection and belief.
16The respondent submits there was no basis for finding that the applicant’s body came into contact with the vehicle. However, I find no error of fact in the Tribunal’s finding. It was open to the Tribunal to conclude that the appellant’s body struck the vehicle based on the evidence before it. I find it was a reasonable finding, given the facts regarding the mechanics of the accident, including the appellant’s evidence regarding where she usually stands when delivering/sorting mail and her last memory which is of putting something in or taking something out of the vehicle. The Tribunal also took into consideration the applicant’s evidence with respect to the fact that when she gave her information for the ambulance call report and WSIB, she was suffering from a head injury.
Location of Applicant when struck
17The respondent submits that the Tribunal made an error of fact when it stated that there was no dispute that the applicant was standing on the sidewalk either putting something in or taking something out of the vehicle when she was struck. The respondent denies making this admission.
18In fact, however, the first paragraph of the respondent’s submissions for the written hearing state as follows:
She was either taking something out of the CPC [Canada Post Corporation] vehicle or putting something into the CPC vehicle, when she was suddenly struck in the head by an unidentified cyclist [“the Cyclist”] travelling on the sidewalk.
19This indicates an agreement that the applicant was on the sidewalk when the accident occurred (given that the cyclist too was on the sidewalk when the accident occurred). In addition, the respondent filed an affidavit from its lawyer as part of its evidence for the hearing, which included the following statement, set out in part as follows:
I am advised by a review of the file and do verily believe that this application arises as a result of an incident in which the Applicant was a pedestrian on a sidewalk when she was struck by an unidentified cyclist […]
20The area of dispute between the parties was not whether the applicant was on the sidewalk when the accident occurred, but whether or not the applicant struck any part of her body on the vehicle and therefore made contact with the vehicle when she was struck. In these circumstances, whether or not the applicant was on the sidewalk is not a finding of fact that in my view would change the outcome of this decision.
21The respondent now states that the ambulance call report stated that the last thing the applicant remembered was walking, and then sitting on the curb with the EMS personnel, and submits that the case of Miko and York Fire & Casualty Insurance Company1 (“Miko”) therefore cannot be distinguished on the basis that the applicant had not stepped away from the vehicle. In the Miko case, the arbitrator found that the fact that the appellant was close to the vehicle when he was struck was coincidental and not the direct cause of his injuries, and that a cyclist striking him near the vehicle was an intervening act. In this case, the respondent’s new submissions with respect to the ambulance call report were not before the hearing adjudicator. It would be unfair to consider the new submissions on reconsideration when the respondent gave no reason why it did not provide these submissions to the hearing adjudicator. In summary, I find no error of fact in the Tribunal’s conclusion that there was no dispute that the applicant was on the sidewalk putting something in or taking something out of the vehicle when she was hit.
22The respondent also submits that the Tribunal stated that the applicant “fell back” but also said she was struck on the left side. I do not find that these statements to be necessarily mutually exclusive and therefore it is not a significant error of fact such that the result would have been different.
LOCATION OF CYCLIST AND VEHICLE
23Whether or not there was an error in the Tribunal’s conclusion with respect to whether the applicant’s view of the cyclist was impeded, it would not in any way alter the outcome in this case of whether or not this was an “accident” within the meaning of the Act. As such, it is not an error of fact that would change the outcome of the decision.
ACCIDENT BENEFITS APPLICATION AND CAUSATION QUESTION
24The respondent alleges that the Tribunal wrongly stated that there were no direct questions about causation in the Application for Accident Benefits when in fact the form states that an applicant should describe the “cause” of the injuries, among other things.
25There was no error of fact. The Tribunal stated at paragraph 16 that there were no questions asked with respect to the “causation” test. The causation test is a legal test, and the Tribunal’s statement is accurate, and I find no error of fact.
Cyclist on the Sidewalk – Ordinary Course of Things
26The respondent submits that the Tribunal erred in law by finding that a cyclist on the sidewalk is in the “ordinary course of things” and therefore is not an intervening act, and accidents often happen with cyclists when individuals are operating their motor vehicles.
27Even if I find that the Tribunal’s statement that a cyclist on the sidewalk was in the “ordinary course of things” was incorrect, the respondent would have to convince me that finding that this was not in the ordinary course of things would change the outcome of the decision. I am not able to conclude that it would change this decision. The Tribunal correctly analyzed the definition of “accident” and concluded that this was in fact an “accident”. The respondent argues that a cyclist riding on the sidewalk is illegal, but that does not address whether or not it is in the ordinary course of things. In assessing whether this was an “accident”, the Tribunal properly considered what constituted an intervening act in great detail and found that the cyclist on the sidewalk did not break the chain of causation. As such, I find no significant error of law that would change the outcome of this decision.
28The respondent also argues that the Tribunal’s decision is contrary to the finding in Miko. However, not only are decisions of FSCO not binding on the Tribunal, but the Tribunal also explained in its decision why Miko was distinguishable, and I find no error in the Tribunal’s analysis.
29As such, I find no significant error of law or of fact such that the Tribunal would likely have reached a different decision.
CONCLUSION
30I find no error of facts or law that would have changed the outcome of the decision.
ORDER
31The respondent’s request for reconsideration is denied
Dawn J. Kershaw Vice-Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 28, 2019