Boyle v. Travelers Canada, 2020 CanLII 103481

Citation: Boyle vs. Travelers Canada, 2020 ONLAT 19-014423/AABS

Released Date: 12/17/2020

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:

Alexander Boyle Applicant

and

Travelers Canada Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Aron Zaltz, Counsel

For the Respondent: Christopher D. Deeley, Counsel

HEARD: Via written submissions

OVERVIEW

1This matter arises out of a fatal accident that occurred on September 26, 2015 when a vehicle struck a pedestrian at an intersection. The applicant in this matter witnessed the accident and alleges that he sustained psychological impairments as a result of rushing to the scene to assist. He sought accident benefits from the respondent, Travelers, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Travelers determined that the applicant was not an “insured” who was “involved” in an “accident” under s. 3(1) and denied the applicant’s benefits claim. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUE IN DISPUTE

2The parties agree that the following is the sole issue in dispute:

i. Whether the applicant was in a motor vehicle accident on September 26, 2015 as defined under s. 3(1) of the Schedule, to claim accident benefits?

RESULT

3The applicant was not an insured person involved in the accident that occurred on September 26, 2015 in order to meet the definition of accident under s. 3(1).

ANALYSIS

September 26, 2015

4On the evening of September 26, 2015, the applicant was sitting on the patio of a pub in Wasaga Beach when a motor vehicle struck a pedestrian at a nearby intersection. The applicant rushed to the scene in an attempt to rescue the pedestrian, who was critically injured as a result of the collision and later died in hospital. The applicant provided a witness statement to the OPP shortly after.

5The applicant alleges that he sustained psychological impairments—identified as, but not limited to, post-traumatic stress disorder in his OCF-1 Form—as a direct result of acting as an attempted rescuer for the victim after the victim was struck by the vehicle. The applicant submitted his application for statutory accident benefits on the basis that he sustained, inter alia, post-traumatic stress disorder as an impairment directly resulting from the accident.

“Insured” and “Accident” frameworks

6Under s. 3(1) of the Schedule, an “insured person” means, in respect of a particular motor vehicle liability policy, (a) the named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of the named insured and a dependant of the named insured or of his or her spouse,

(i) if the named insured, specified driver, spouse or dependant is involved in an accident in or outside Ontario that involves the insured automobile or another automobile; or,

(ii) if the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant.

7Meanwhile, s. 2(3) of the Schedule provides that the benefits set out in the regulation shall be provided in respect of “accidents.” Section 3(1) further defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment […].”

8In Chisholm v. Liberty Mutual Group², the Court of Appeal set out a two-part test for determining whether an incident qualifies as an “accident” under the Schedule, known as the “Purpose” test and the “Causation” tests. The test was further refined by the Court in Greenhalgh v. ING Halifax Insurance Company³ such that, in order to qualify as an “accident” under the Schedule, the insured must satisfy both branches of the modified test:

a. The Purpose Test: did the incident arise out of the ordinary and well-known activities for which automobiles are used? and,

b. The Causation Test:

i. Did such use and operation of the automobile directly cause the impairment?

ii. 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, the second prong of the Causation Test concerns whether it can be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries. In Greenhalgh, the Court also addressed “but for”, “intervening act” and “dominant feature” considerations to analyze the modified Causation Test.

Positions of the Parties

9The applicant asserts that he sustained “nervous shock” injuries as a result of his direct involvement in the accident in the capacity of an attempted rescuer. First, he asserts that in tort matters, attempted rescuers are foreseeable nervous shock victims, and notwithstanding the statutory accident principle established by s. 266(1) of the [Insurance Act]⁴, he submits that the courts have consistently allowed actions for damages sustained by would-be rescuers in the context of motor vehicle collisions, resulting from “nervous shock” injuries.⁵ He submits that rescuers “have long since been recognized as encompassed within the category of foreseeable nervous shock victims,” and it is therefore “necessary and proper” to treat rescuers as persons involved in “accidents.”

10Second, he relies on a purposive interpretation of the Schedule to argue for “coherence between the scope of the regulation’s application to any subject accident and any corresponding claim in tort.” To this end, he submits that the Schedule is to be given a broad and liberal interpretation, as the legislative intention behind its enactment is to “provide a less stringent and less exclusive source of recovery than by way of action in tort.” He argues that “consistent judicial endorsement of a purposive approach to the interpretation of the [Schedule] indicates that where a rescuer’s damages claim arising from a motor vehicle accident is actionable in tort, it follows that such a rescuer’s involvement ought to be within the ambit of recovery provided by the definition of “accident” in s. 3(1)” of the Schedule.

11In response, Travelers submits that the applicant does not qualify as an “insured person” in relation to the motor vehicle accident that occurred on September 26, 2015 as he was not “involved” in an “accident” and did not suffer psychological or mental injury as a result of an accident “resulting in physical injury to a specified family member or dependant involved in an accident.” Further, to the extent that the applicant was involved in an incident, that incident did not meet the definition of an “accident” under s. 3 of the Schedule, as the use and operation of the automobile had ceased prior to his alleged injury.

Not an insured person under the Schedule

12I agree with Travelers. In accordance with the definition of an “insured person” under s. 3(1)(a)(i), in order to be eligible for accident benefits, the applicant must establish that he was “involved” in an accident or, if he was not “involved”, he must have sustained his psychological impairment as a result of the involvement of a spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant under s. 3(1)(a)(ii).

13The applicant asserts that his “involvement” in the subject accident cannot “fairly (let alone respectfully) be compared to “any passerby” or “witness...on the internet” as Travelers suggests. The applicant submits that from his statement to the police alone, it is established that “he saw the motor vehicle at the moment of impact, heard the sound of the impact, attempting to assist by rushing to attend the victim, and, having learned the victim’s name [i.e. “Tom”], bore witness to the victim’s agony preceding his death, as subsequently pronounced in hospital.”

14First, I agree with Travelers that in the present case, the applicant must prove his own involvement in the accident, as there is no evidence that he is related to anyone who was involved and he has not submitted that there is a family connection. Indeed, he only learned the victim’s name after he chose to rush to the scene after the collision had occurred. Therefore, I find he cannot rely on the family exception to be eligible for accident benefits as provided by s. 3(1)(a)(ii), but I will address this further below.

15Second, even on a generous interpretation of what occurred, I find the facts do not support the purported scope of the applicant’s involvement in an accident. I agree with Travelers that the applicant was not “involved” in the accident that occurred on September 26, 2015, despite the applicant’s position that he was involved as a would-be rescuer who bore witness to the victim’s agony.

16For instance, based on the Motor Vehicle Accident Report and the applicant’s Redacted Witness Statement, it is difficult to dispute Travelers’ framing of the applicant’s actual involvement as entirely after-the-fact. I agree that the applicant was not a driver, or a passenger of a motor vehicle involved in the accident, nor was he entering or exiting, or loading or unloading a vehicle. The applicant himself was not struck by a motor vehicle and he did not directly witness the motor vehicle accident. There is no evidence he ever touched the vehicle. His evidence at the scene of the accident is that, at the time of the accident, he was sitting on a patio at a nearby pub.

17I agree with Travelers that although the applicant may have heard the accident, as alleged, there is no suggestion that this caused his psychological impairment. Indeed, only after the accident already occurred did the applicant then choose to run towards the scene of the accident where he allegedly sustained psychological injury as a result of witnessing the victim’s suffering. The applicant’s official statement to the OPP states that “I ran towards the incident.” The statement also indicates: “I did not see the impact. I didn’t see anyone get hit.” I find these statements provide compelling evidence that the applicant was not “involved” in the accident to meet the definition of an insured person under the Schedule that would entitle him to benefits.

The Causation Test

18In any event, I also agree with Travelers that the applicant was not involved in an “accident” under s. 3 of the Schedule because the use or operation of the vehicle did not cause any direct impairment to the applicant to satisfy the Causation Test. On the facts, I find the accident occurred prior to the applicant even attending the scene and the incident the applicant was “involved” in was the aftermath of that accident. The psychological injuries sustained by the applicant were not the direct result of the accident or even through the use or operation of a motor vehicle, but rather the aftermath of an accident, where he rushed to the scene to find the victim in pain. On the facts, while not determinative, it is unclear what the applicant’s involvement even was with the victim when he arrived, whether he was alone in doing so, whether there was a crowd of others, how he assisted the victim as a rescuer, etc.

19Importantly, by the time the applicant arrived at the scene, the use or operation of the vehicle had ceased. Accordingly, I find it cannot be said that the use or operation of the vehicle directly caused his impairments. Similarly, it cannot be said that the vehicle was the “dominant feature” of his impairment. Further, I disagree that “but for” the accident, the applicant would not have sustained his alleged psychological impairments. Rather, I find that “but for” his decision to rush to the scene of the accident to help the victim, he would not have sustained his alleged psychological impairments. While the decision to aid the victim of a collision is a noble one, it does not follow that the applicant’s rush to aid the victim here renders him an “insured” who was “involved” in an “accident” for the purposes of entitlement to accident benefits under the Schedule because the Causation Test is not met. The appropriate avenue for the applicant is a tort claim, which his submissions seem to suggest is already underway.

The applicant as rescuer; purposive interpretation

20For completion, the applicant’s submissions devote considerable effort to framing his involvement in the accident as one of a would-be rescuer. In this vein, he argues that elements from tort claims should be shoe-horned into the accident framework considerations outlined above. For example, he submits the “but for” test “corresponds to the civil standard of proof on the balance of probabilities”, that the “intervening act” consideration corresponds to the doctrine of novus actus interveniens and, that the “dominant feature” consideration corresponds to the “remoteness rule subsidiary to the “touchstone” doctrine of reasonable foreseeability.” To this end, he submits that any findings of tort liability in “nervous shock” claims brought in respect of motor vehicle accidents “reflect a determination that causation has been made out on at least as exacting a standard as is applicable under s. 3(1).” Against this interpretation, he submits he would not have sustained his psychological impairments “but for” the subject accident, that there was no intervening cause which broke the chain of causation, and that the subject accident was the dominant feature causing his impairments. For the reasons above, I disagree.

21In turn, Travelers asserts that injuries sustained by individuals not involved in an accident but instead suffered assisting after the fact do not constitute injuries arising from that accident under the Schedule. It submits that the applicant seeks to rely on case law in the tort context which does not apply on these facts, as it holds that in some instances a first responder or rescuer may have a claim against an at-fault party where the injury is foreseeable and based on sufficient locational, relational and temporal proximity. Further, it submits that the tort cases and analysis do not apply in the accident benefit context because the cases deal with the tort concepts of foreseeability and fault and not accident benefits coverage, which has narrowed the definition of what constitutes an accident and, critically, who may qualify for accident benefits as a result.

22I agree with Travelers that the Schedule specifically requires “involvement” in an accident in order to attract accident benefits coverage. It is a definition that sets very specific rules, outlined above, around who can qualify for benefits as a result of an accident, which I find the applicant does not meet here. I agree that the applicant’s attempt to introduce fault and foreseeability into the Schedule is not applicable, as there is no evidence to support that the applicant was “involved” in the collision, that the applicant’s injuries were sufficiently proximate to his involvement in an “accident” and no evidence that the injuries were foreseeable where the applicant made the choice to rush to the scene after the fact.

23While the applicant should be commended for his attempt to help and it is unfortunate if he sustained psychological impairments as a result, I do not accept his policy argument that denying accident benefits coverage on these facts would whittle down the “sense of virtue” or the “moral correctness” that comes with “encouraging selfless acts of rescue,”⁶ nor do I find that accepting Travelers’ position will “detract from the intuitive desire to respond to cries of distress and return us to a time when people were less inclined to help,”⁷ as submitted. I find it is unreasonable—and rather cynical—to suggest that people will stop helping victims in distress if accident benefits are not provided to would-be rescuers.

24Finally, I reject the applicant’s purposive argument that the Schedule “reasonably infers the legislative intent that the eligibility criteria for accident benefits will be broader than the rights of action accorded to tort claimants in respect of any given motor vehicle accident” where the definition of “accident” under the Schedule has actually been narrowed over time. Further, I find a purposive analysis is not required where s. 3(1)(a)(ii) does provide accident benefits for insureds who experience psychological (or nervous shock) impairments as a result of witnessing an accident. This indicates that the legislature intended to account for “nervous shock” injuries but limited entitlement to accidents involving family members.

25Ultimately, while it is true and well-settled that the Schedule is consumer-protection legislation and should be interpreted broadly, entitlement to accident benefits requires, at a bare minimum, that an insured be involved in an accident and prove that their impairments were caused as a result of their involvement in that accident. For the reasons provided, I find the applicant has not demonstrated that he satisfies these minimum requirements.

ORDER

26The applicant was not an insured person involved in the accident that occurred on September 26, 2015 in order to meet the definition of accident under s. 3(1). His application is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 22002 CanLII 45020 (ONCA). [“Chisholm”].
3. 32004 CanLII 21045 (ONCA). [“Greenhalgh”].
4. 4RSO 1990 c. I. 8.
5. 5See, for e.g., Bechard v. Haliburton Estate, 1991 CanLII 7362 (ONCA); Kardan v. Bartholdt, 1995 CanLII 1461 (ONCA); Nespolon v. Alford, 1998 CanLII 7127 (ONCA); Vanek v. Great Atlantic & Pacific Company of Canada Limited, 1999 CanLII 2863 (ONCA); Anderson v. Wilson, 1999 CanLII 3753 (ONCA); Mustapha v. Culligan of Canada Ltd., 2006 CanLII 41807 (ON CA), aff’d 2008 SCC 27.
6. 6See, Maguire v. Padt, 2014 ONSC 6099, at 19.
7. 7Id., at 68.