P.F. v. Economical Mutual Insurance Company, 2020 CanLII 19569

RECONSIDERATION DECISION

Before:

Chloe Lester, Adjudicator

Date:

February 26, 2020

File:

18-010791/AABS

Case Name:

P.F. v. Economical Mutual Insurance Company

Written Submissions By:

For the Applicant:

Mohamed Elbassiouni, Counsel

For the Respondent:

Catherine Korte, Counsel

OVERVIEW

1On November 19, 2019, P.F., the applicant, filed a request for reconsideration of the October 28, 2019 decision (the “Tribunal’s decision”)¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).

2This request is made pursuant to Rule 18.2 (b) of the Common Rules of Practice and Procedure (October 2, 2017) (“the Tribunal’s Rules”), with the February 7, 2019 amendment to Rule 18 on reconsiderations.

3The applicant 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. The applicant applied for benefits and the respondent denied those benefits because it did not consider the incident an “accident.”

4In order for an incident to be considered an “accident”, it must meet both the purpose and causation test. The Tribunal’s decision was divided into two scenarios: the first being the fatal tractor-trailer collision, and the second being the use or operation of the vac-truck, which was used to clean up the substances that spilled onto the highway. The applicant’s main submissions were that as a result of the fatal tractor-trailer collision and the use or operation of the vac-truck, he suffered from:

(a) physical injuries from exposure to the fumes of the spilled substances, and

(b) psychological injuries from seeing a dead body and experiencing the debilitating effects of those physical injuries.

5In the decision, the Tribunal found that P.F.’s injuries were as a result of an incident and not an accident as defined in subsection 3 (1) of the Schedule.²

6In support of his request for reconsideration, P.F. relies on Rule 18.2 (b) and submits that the Tribunal’s decision erred in four ways:

(i) In the first scenario, I misinterpreted the definition of an “accident” in subsection 3 (1) of the Schedule and misapplied the legal analysis from Khan;³

(ii) In the first scenario, I erred in the utilization the “causation test” in Vytlingam,⁴ without modifying it to a “no-fault” insurance regime, and without applying the more “relaxed” causation test in Amos;⁵

(iii) In the second scenario, although I correctly articulated the legal test, I erred by misapplying the test to the facts; and

(iv) I erred by not considering the psychological impairment and whether that injury resulted from the accident.

7Rule 18.2(b) of the Tribunal’s Rules states that a request for reconsideration may not be granted unless the Tribunal is satisfied that the Tribunal made an error of law or of fact such that the Tribunal would likely have reached a different result had the error not been made.

8Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

9P.F.’s request for reconsideration is dismissed.

ANALYSIS

Error #1: Definition of an “accident” and the Khan decision

10The applicant submits that I erred by applying the purpose and causation test twice: after finding the test was met when the truck and the tractor-trailer collided, I should have stopped my analysis there. He submits I unnecessarily engaged in a further analysis of the test once the applicant arrived on the scene. He submits that my analysis should have ended when the test was met in the first instance.

11He submits that the purpose and causation test does not require the applicant to establish that the use or operation of an automobile took place at the time of his arrival but that an “incident in which the use or operation of an automobile directly causes an impairment.”⁶ He submits that my reasoning would require that the applicant sustain an impairment as a result of the use or operation of his own vehicle. The applicant submits that even if the “double analysis” were correct, the Tribunal’s decision implies that the test can be met only if the automobile is operable, and this is contrary to the clear and unambiguous definition of an “accident.”

12The applicant relies on Vytlingam to support his position that, although a vehicle being operational does not automatically make an incident into an “accident,” the focus should remain on whether the motor vehicles were being used as motor vehicles. The applicant submits that the impairment does not need to stem from the use and operation but its use or operation of an automobile. Therefore, the question to be asked is whether the use or operation of the truck and the tractor-trailer were direct cause of the applicant’s injuries.

13The respondent submits that the applicant’s injuries were during the course of his employment to clean up environmental spills, not anything in the realm of a motorist. Relying on Khan, the respondent submits that that even if the process of cleaning the toxic spills were considered a use or operation of either vehicle, the actual environmental spill would be considered an intervening act that is not a part of the “ordinary course of things.”

14After considering the parties’ submissions, in my view, the flaw in the applicant’s submissions is that, if the Tribunal’s decision stopped the analysis at the collision involving the tractor-trailer and the truck, the applicant would have not been impaired yet. When determining whether an incident is an “accident,” the whole incident--from the use or operation of the vehicle to when the insured was impaired--must be contemplated. This is reflected in Greenhalgh,⁷ where the Court of Appeal looked at the entire series of events, which included the plaintiff leaving the vehicle, being lost in the brush and snow for over ten hours, leading to her being frostbitten, which required amputations. Even if the first scenario met the purpose test, the applicant still does not meet the causation test and the reasons are set out in paragraphs 30 to 38 of my decision.

15Nowhere in the Tribunal’s decision does it state or imply that the applicant must be impaired by his own vehicle. Although the Tribunal’s decision does continuously refer to the “use and operation” of a vehicle, versus the “use or operation”, it by no means was meant in a way to say that the incident needed to meet both criteria in order for it to be considered an accident. The word “and” may be replaced with the word “or” and the reasons would remain the same.

16The applicant then asks whether the use or operation of the truck and the tractor-trailer were direct cause of the applicant’s injuries; the answer is still “no.” The use or operation of the tractor-trailer or the truck did not lead to the impairments of the applicant. The two vehicles collided. As a result, chemicals from both vehicles spilled onto the highway. The applicant arrived on the scene, cleaned up the spills and witnessed a deceased body, which ultimately led to his impairments. The chemical spill and the deceased body were not as a result of the use or operation of a vehicle, but as a result of a collision.

17The applicant did not provide any analysis of how I misapplied the legal analysis in Khan and, therefore, it will not be addressed in this reconsideration decision. I find no error has been committed.

Error #2: Erred in transferring with modification the “causation test” in Vytlingam to the context of “no-fault insurance”

18The applicant submits that the Tribunal’s decision took the stricter “causation test” in Vytlingam, which was specific to a tortfeasor, and applied it to a no-fault insurance regime. In other words, the Tribunal’s decision ought to have modified the application of that decision to a more relaxed causation test that is found in Amos.⁸ The respondent submits that the adjudicator used the decision for a common-sense approach in analyzing whether the incident is an accident.

19The applicant does not explain how my interpretation was a strict interpretation of the causation test or, if it were, how the test would have been met had a modified relaxed version been applied. The mere fact I relied on Vytlingam to support my reasoning on how the applicant did not meet the causation test does not mean I employed a stricter interpretation of the causation test.

20The applicant also submits that finding the applicant’s impairments stemmed from the incident is sufficient to meet the causation test and eliminate any intervening acts. The applicant relies on Chisholm⁹ to support his position that the impairments must have some “nexus or causal relationship” to the use or operation of the vehicle and on Petrosoniak,¹⁰ cited in Chisholm, that fluid that leaks from a vehicle and causes an impairment should be considered an “accident.” He specifically takes issue with the Tribunal’s decision where I distinguished Petrosoniak from this case: in Petrosoniak, the vehicle was in use or operation but, in this case, I found the substances leaked as a result of the collision, not the use or operation of the vehicles. The applicant submits I made a finding of fact that was not found in Petrosoniak. Further, the applicant submits that my finding in this case, that the substances leaked when it was not being driven, was not based on evidence at the hearing. In any event, the applicant submits that the vehicles do not need to be driven in order for an incident to be an “accident” but in use or operation, and the impairments must be caused directly by that.

21The respondent submits that the chain of events can be severed by an intervening act, the environmental spill, which led to the impairments of the applicant that were not part of the “ordinary course of things.” The respondent further submits that I properly framed the question by indicating that the respondent is not liable for impairments that arise out of an aftermath of an accident that has already occurred.

22The applicant’s submissions do not elaborate how a finding that the impairments stem from an incident automatically ensures the applicant meets the causation test and eliminate any intervening acts. In Chisholm, the insured was shot while driving his vehicle. There was no doubt that Chisholm was impaired as a result of the incident, but it did not automatically entitle him to accident benefits. In that case, the act of being shot, which directly impaired Chisholm, could not be tied to the use or operation of the vehicle and the incident was not considered an “accident.” In Greenhalgh, the insured was impaired as a result of an incident, but the incident contained an intervening act. Those two decisions make it clear that an impairment can be as a result of an incident yet still not meet the causation test in determining if it is an “accident.”

23With respect to the arguments I made a finding of fact not in evidence, I disagree. The finding in Petrosoniak that the hydraulic liquid stemmed from an automobile; was made by Arbitrator Novick, who stated, “On the basis of the evidence before me, I find that the fluid…originated from a motor vehicle.”

24In this case, I had no evidence that the substances leaked onto the highway stemmed from the use or operation of the vehicle. The hearing evidence suggested the opposite: the Global News video, submitted as a part of the applicant’s evidence, portrays the substances only around the collision site. The applicant testified that he cleaned up the catch basins around the collision site. Also, the applicant’s submissions state: “The flatbed then collided into the guard-rail and burst into flames. The vehicle was carrying a chalk-like substance which ended up strewn all over the highway.” The applicant is asking me to make findings, not supported by the evidence in hopes that it supports his position that the incident met the definition of an accident. I cannot conclude an error has been committed.

25I agree with the applicant that impairments do not need to be as a result of a vehicle being driven but as a result of the use or operation of a vehicle. In paragraph 34 of my decision, I did not find that the use or operation of a vehicle led to the substances leaking onto the ground. It was that the collision, which caused toxic spill, led to the impairments. Since the vehicles were non-operable, the impairments could not stem from a direct result of the use or operation of the vehicle. I again find no error.

Error #3: Correctly articulating the legal test but erred by misapplied it to the facts

26The applicant submits that, in scenario 2, the Tribunal’s decision found it met the purpose test but not the causation test. The applicant submits that the Tribunal’s decision erred by making a factual finding without supporting it with evidence. He submits that the Tribunal’s decision made an error when it stated, “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.” The applicant submits the statement is unfounded by the testimony at the hearing and the Examination Under Oath (“EUO”) conducted by the respondent and that the only reason the applicant was on the scene was to operate the vac-truck. He submits that the vac-truck was used to remove the toxic substance from the catch-basins and it was the exposure to the high levels of the flammable liquid that led to the impairments. The applicant submits that if one removes the vac-truck from the equation, the applicant would not have been exposed to the toxic substances that caused the impairments.

27The respondent agrees with my decision that concludes that the dominant feature of the impairments was not the operation of the vac-truck, but it was the exposure to the chemicals for a long period of time.

28I have to disagree with the applicant’s characterization of the evidence. The evidence showed that the applicant was exposed to three different types of substances: absorbal, the chalk-like substance and the flammable liquid. There was no medical evidence presented at the hearing that the flammable liquid was the only cause of the applicant’s physical impairments and that the impairments were cause only as a result of operating the vac-truck. The evidence shows that the applicant was not solely there to operate the vac-truck. He testified at the hearing and at the EUO that, for the first two hours, he did not have authority to go onto the scene, so they placed absorbal around the catch basins while he and the clean-up crew waited.¹¹ He also testified that he was operating the street sweeper. Based on the evidence from the hearing, I cannot conclude that the applicant was only on the scene to operate the vac-truck and, had he not, he would not have been impaired.

29The Tribunal’s decision found that the vac-truck cannot be a direct cause of the impairments because another colleague who did not operate the vac-truck also experienced similar symptoms. He submits that the mere fact his colleague experienced similar symptoms does not mean exposure to the chemicals resulted in impairments. I agree. At the hearing, the applicant asked me to make a finding that was not supported by the evidence; he urged me to conclude that the impairments are solely as a result of the operation of the vac-truck. I cannot. The medical evidence and testimony do not support that finding. My reasonings are contained in the paragraph above.

30Lastly, the applicant submits that the Tribunal’s decision found the vac-truck was not the dominant feature. He argues that the mere presence of the vac-truck should meet the dominant feature test. He submits had the applicant not operated the vac-truck, he would not have been exposed to the chemicals and not suffered the impairments. As discussed in the decision and the paragraph above, the applicant wants me to conclude that the use or operation of the vac-truck was the cause of the applicant’s injuries. The bald submission is just not supported by the evidence. The vac-truck was used to solely clean up the flammable liquid, yet the applicant was exposed to two other substances, and the flammable liquid, even when he was not operating the vac-truck. I cannot conclude the impairments stemmed from the sole use of the vac-truck.

Error #4: Erred by not considering the psychological impairment and whether that injury resulted from the accident

31The applicant submits that the Tribunal’s decision failed to analyse the psychological condition. If there had been such analysis, I would have found that the psychological injuries were as a result of an accident. The applicant submits he has been psychological impaired because he had to strap the deceased body to driver’s seat in order for the tractor-trailer to be removed from the scene.

32The applicant is right I did not reason whether the applicant’s psychological impairment in the context of the first scenario stemmed from an accident.

33The only way a Tribunal decision may be reconsidered under Rule 18.2 (b) is if the error would have led to a different outcome. In this case, it does not. Imparting the same reasoning in the Tribunal’s decision regarding the first scenario, the applicant was psychologically impaired as a result of the aftermath of a fatal collision between the truck and the tractor-trailer. The collision had already occurred prior to the applicant being impaired, those vehicles were not in use or operation at the time of the applicant’s impairments, and the fatal collision was not an “ordinary and well-known activity to which automobiles are put.” Therefore, the use or operation of the vehicle led to the driver being deceased, but it did not lead to the psychological impairment of the applicant. Again, the impairment was a direct result of the aftermath of an accident, not from the use or operation of the vehicle in the original accident. These reasonings are explained in paragraph 30-38 of the decision and therefore cannot meet the causation test.

34Although I agree I did not analyze the first scenario in the context of the applicant’s psychological injuries, the decision does not change, as the applicant still does not meet the purpose or causation test.

CONCLUSION

35I have reviewed the applicant’s alleged errors in the framework of a request for reconsideration. I cannot conclude all the alleged errors have been committed. Although I agree, the psychological impairments resulting from the first scenario, were not analyzed, it does not change the outcome of the decision. On that basis, the request for reconsideration is dismissed.

Chloe Lester

Vice-Chair

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1P.F. vs. Economical Mutual Insurance Company, 2019 CanLII 119747 (ON LAT)
2. 2Statutory Accident Benefits Schedule -Effective September 1, 2010 (the “Schedule”)
3. 3Khan v. Certas Direct Insurance Co. (July 28, 2008), FSCO File No. A06-002205 (“Khan”)
4. 4Citadel General Assurance Co. v. Vytlingam, 2007 SCC 46 (“Vytlingam”)
5. 5Amos v. Insurance Corporation of British Colombia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405 (“Amos”)
6. 6Subsection 3(1) of the Schedule
7. 7Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA), [2004] O.J. No. 3485 (C.A.), leave to appeal denied March 3, 2005.
8. 8Amos, supra note 5
9. 9Chisholm v. Liberty Mutual Group, (2002) 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (ON CA)
10. 10Petrosoniak and Security National Insurance Company, FSCO File No. A98–000198 (November 2, 1998)
11. 11EUO at page 29; P.F., supra note 1 at para 6