Released: February 3, 2021
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:
J.J.
Applicant
and
Economical Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Melody Maleki-Yazdi
APPEARANCES:
For the Applicant:
J.J., Applicant
Frank Van Dyke, Counsel
For the Respondent:
Christopher Schnarr, Counsel
Court Reporter:
G.R.
Heard by Videoconference:
October 13, 14, 15 and 16, 2020
OVERVIEW
1J.J. (the “applicant”) alleges that on July 28, 2018, he was riding as a passenger on an All-terrain Vehicle (“ATV”) when he fell from the back of it and suffered injuries. The applicant claimed accident benefits from the respondent, who denied the claims because the incident in question is not an “accident” within the meaning of s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). The applicant disagreed with the respondent’s decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
2The parties sought a preliminary issue determination on whether the applicant was involved in an “accident” for the purposes of entitlement to statutory accident benefits. This decision is for that determination.
3I heard evidence from the applicant; Ms. B.Y. (the applicant’s common-law partner); Mr. D.B. (the applicant’s long-time friend); Ms. C.B. (the applicant’s neighbour at the time of the incident); and Captain [M.S.] (volunteer fire captain for the Town of Greater Napanee Fire Department).
4In its submissions for this preliminary issue hearing, the respondent submits that the applicant’s evidence is weak and inconsistent, and therefore the applicant has not discharged his onus of proof that the incident is an “accident,” as defined in s. 3(1) of the Schedule.
PRELIMINARY ISSUE
5The following preliminary issue is in dispute for this hearing:
i. Was the incident which occurred on July 28, 2018, an “accident” as defined in s. 3(1) of the Schedule?
RESULT
6I find that the applicant was involved in an “accident” as defined in s. 3(1) of the Schedule and, as a result, he is entitled to statutory accident benefits.
ANALYSIS
7In order to claim accident benefits from the respondent, the applicant must prove on a balance of probabilities that he was involved in an “accident” as defined in s. 3(1) of the Schedule, i.e. “an incident in which the use or operation of an automobile directly causes an impairment […].”
8I understood from the respondent’s submissions that the respondent is conceding that the ATV the applicant alleges he rode is an “automobile” within the meaning of the Schedule.
9The focus of the parties’ submissions is a disagreement regarding whether an automobile was involved in the incident. The applicant submits that an ATV was involved in the incident. The applicant submits that he was riding on the back of an ATV down a laneway on the way to his home, when he fell off the back and suffered a catastrophic brain injury that presently affects his life. The applicant’s version of the events of July 28, 2018 have not been accepted by the respondent.
10In support of the respondent’s submission that the incident did not involve an ATV, it relies on the following inconsistencies below. I have not listed all of the inconsistencies that the respondent has raised. The inconsistencies listed are those that I strongly considered when assessing the reliability of the witnesses’ evidence.
i. The initial responding records from the 9-1-1 call, the fire department and the ambulance call do not refer to an ATV being involved in the incident although D.B. testified at the hearing that he told D.W., the applicant’s neighbour, to call 9-1-1 because the applicant had fallen off the back of the bike and that he told Captain [M.S.] the same information.
ii. In D.B.’s recorded interview telephone statement taken on September 24, 2018, his description of how he finds out that the applicant allegedly fell off the ATV is not consistent with how B.Y. described the situation during her testimony at the hearing.
iii. D.B.’s account of whether the applicant was sitting on the ATV with his legs facing forwards or backwards was not consistent. He eventually testified that he did not have a clear recollection of whether the applicant was sitting with his legs facing forwards or backwards.
iv. Although B.Y.’s account is that she was not at the scene very long because she went to get the applicant’s wallet and pills, and by the time she got back to the scene, the ambulance had already come and taken the applicant, Captain [M.S.’s] account is that she came back to the scene with the applicant’s health card prior to that.
11I find that an ATV was involved in the incident and that the applicant’s injuries are a direct result of his fall off the ATV. Therefore, the applicant has proven on a balance of probabilities that he was involved in an “accident” as defined in s. 3(1) of the Schedule and, as a result, he is entitled to statutory accident benefits.
12In coming to this conclusion, I went through the evidence of the various accounts of the incident on July 28, 2018.
The various accounts of the incident on July 28, 2018
13Below are numerous accounts of the incident on July 28, 2018. An ATV is referred to as a four-wheeler or a bike in certain accounts.
9-1-1 call made by D.W. on the day of the incident
14A 9-1-1 call was made by D.W., the applicant’s neighbour. A recording of the 9-1-1 call and an undated written statement from D.W. were submitted to the Tribunal as evidence.
15The 9-1-1 recording indicates that at 9:17 p.m., D.W. told the 9-1-1 operator that the applicant may have had a heart attack. She mentions that he has fallen on the driveway and someone told her to call for an ambulance. She later clarifies that her neighbour told her that the applicant has collapsed on the road. D.W. does not mention an ATV.
16Her statement indicates that at approximately 8:45 p.m., she heard D.B. pounding on the door of her home and he told her to call 9-1-1. D.B. told her that the applicant had fell and hit his head, and that he was lying on the road. She indicates that her husband, R.W., and D.B. took off and she called 9-1-1. She also indicates that after she hung up the phone, she ran out the door and noticed D.B.’s four-wheeler sitting there outside her home as she was leaving her driveway.
Fire incident report from the day of the incident
17Captain [M.S.] completed the report. It is indicated that the time of the alarm was at 9:20 p.m. He remarks that he was told by an individual male that they had been walking down their driveway and the applicant just fell over backwards. The individual male told fire personnel that they had been drinking all day and fishing, and that the applicant had come off working a midnight shift earlier in the morning and had not slept yet.
18The report indicates that after the ambulance left, Captain [M.S.] asked for the names of that individual male along with two other males that were standing together. They told him that they were not going to give him their names or identification. He asked them whether the incident really happened to the applicant and he explained to them that he was not the police but that they should all think of the applicant. Captain [M.S.] indicates that they did not answer.
Ambulance call report from the day of the incident
19The time of the occurrence was at approximately 9:18 p.m. The incident history outlines that the applicant was “walking intoxicated down side road with three friends, when patient fell backwards striking his head … Girl Friend stated that patient had consumed a large amount of beer.”
Lennox and Addington County General Hospital emergency progress notes from the day of the incident
20The triage information indicates that the applicant was walking with friends that evening after having consumed a large amount of beer. He tripped and fell, striking his head.
21The emergency notes indicate that the applicant was “drinking alcohol on and off today. Was riding on a 3 wheeler with friends and appeared to have difficulty moving when dismounting stopped 3 wheeler. Immediately fell backwards to ground striking his head…”
Kingston General Hospital emergency department record dated July 29, 2018
22The adult triage nurse notes that the applicant “was walking with friends tonight after consuming large amount of beer, tripped fell striking head.”
23The emergency room physician notes that the applicant “was driving 3 wheeler and stopped, was acting strange and then fell backwards, hit head and lost consciousness. Has been drinking EtOH but less than usual, drinking beer.”
Kingston Health Sciences Centre interprofessional consultation request and report form dated July 31, 2018
24A registered social worker notes that the applicant was admitted “after falling off the back of an ATV when out driving with his wife.”
Respondent’s adjusting log note dated August 9, 2018
25Ms. Tina Wagner, the respondent’s adjuster, indicates that she spoke with a broker and B.Y.
26The broker told Ms. Wagner that those involved called for an ambulance right away, but did not tell the first responders that the applicant fell off the ATV because the applicant had one beer at his friend’s house, and they were scared. When the blood tests at the hospital came back as clear, then those involved indicated what happened.
27B.Y. told Ms. Wagner that the applicant was at the back of his friend’s, D.B., ATV. They were across the lane at a friend’s house and were going back to the applicant’s house when he fell off the back.
OCF-1 dated August 22, 2018
28In this Application for Accident Benefits form, the incident is described as the following: “applicant was a passenger on the back of an ATV and fell off and sustained a catastrophic traumatic brain injury.”
Recorded interview telephone statement of D.B. taken on September 24, 2018
29D.B. states that he and the applicant were riding the ATV onto the laneway, he looked back to see if the applicant was alright, and the applicant was not there. He did not see the applicant fall because the applicant was behind him. The applicant was laying on the road on the laneway. He states that it was like the applicant blacked out/passed out.
30He indicates that the applicant’s girlfriend, B.Y., was the only other person present.
Recorded interview telephone statement of B.Y. taken on September 26, 2018
31B.Y. indicates that D.B. was driving the ATV, she was sitting in the middle and the applicant was sitting on a box in the back. They were coming down the laneway when D.B. let off on the gas and they were just coasting.
32It appears in the recording that she states she turned around to say something to the applicant and he was gone. She states that he had just fallen off.
33She indicates that the next-door neighbour brought her home to get the applicant’s medication and then she was taken to the hospital.
34She states that she did not interact with the ambulance attendants.
Providence Care Hospital records dictated on October 10, 2018
35The dictation notes indicate that the applicant does not recall the details of his head injury. Some reports say that he fell off an ATV and others suggest that he simply had a fall, but the common denominator was that alcohol was involved.
An email dated December 24, 2018, from Mr. Michael Lake, the respondent’s specialist in field investigation, to Ms. Tina Wagner, the respondent’s adjuster
36D.B. told Mr. Lake that he was driving the ATV, B.Y. was on the seat directly behind him and the applicant was sitting on the back rack facing backwards with his legs hanging over the rack at the back of the ATV. Mr. Lake indicates that there is a rail that is approximately 2-3 inches in height from the top of the rail to the surface of the rack where the applicant was reportedly sitting.
37D.B. said that he got back on the ATV after the applicant had fallen from it and drove to D.W.’s house where D.W. called 9-1-1.
Providence Care Hospital inpatient discharge summary dated January 4, 2019
38Dr. Jessica Trier indicates that the applicant fell off his ATV on July 28, 2018.
Dr. Shalini Jain’s clinical notes and records
39There is a record by Dr. Christopher Wallace at the South Eastern Ontario Health Science Centre signed on September 14, 2018, that the applicant “sustained a comminuted and depressed parietal skull fracture on July 28, 2018 after falling off of the back of an ATV and striking his head on the ground while intoxicated.”
40There is a report dictated on October 5, 2018, by Dr. Ronald Pokrupa from the Neurosurgical Clinic at Kingston General Hospital, which notes that the applicant had a severe traumatic brain injury with a comminuted skull fracture on July 28, 2018, when he fell off the back of an ATV.
41There is a report dictated on June 3, 2019, by Dr. Garima Shukla from the Epilepsy Clinic at Kingston General Hospital, which notes the following: the applicant “was on an ATV with his wife and one more person, when he suddenly fell down and passed out, not regaining consciousness over the next couple of minutes, after which he was taken to Kingston General Hospital and admitted there.”
Examination Under Oath (“EUO”) of Captain [M.S.] dated January 28, 2020
42At his EUO, Captain [M.S.] said that there were three males there at the scene and there was one to whom he was talking and trying to get some information from. He said the males were being very evasive to the questions of what happened. The individuals refused to identify themselves in any way. From his experience, that would be a trigger of somebody withholding something.
43Captain [M.S.] was told that they had been consuming some alcohol and fishing that day. He was told that the applicant had just come off of a midnight shift, he had not slept yet, and that they were just walking down the laneway and he fell over backwards and hit his head.
44Captain [M.S.] remarked that the level of intoxication and their stories did not seem to jive with what he was being told. It did not seem correct. Those three individuals did not seem to be to the point that they were staggering or have mumbled speech. It seemed fishy to him.
45Captain [M.S.] believed that the applicant’s common-law partner was there at the scene of the incident and that she was standing in the background. He did not believe that he spoke with her.
46Captain [M.S.] indicated that once the ambulance came, he gave the attending a quick report about what they believed had happened and what the state of the injuries were.
47Captain [M.S.] indicated that there were no ATVs or any vehicles at the scene. Furthermore, no one mentioned the involvement of an ATV.
48Captain [M.S.] confirmed that if a motor vehicle had been involved in the incident, then police would have been called to the scene. He confirmed that police were not called to the scene by the fire department.
Testimony of the applicant
49The applicant testified that he has no memory of the incident that took place on July 28, 2018. He does not remember getting up that day. He testified that everything he knows about the incident is as a result of what others tell him.
Testimony of B.Y.
50B.Y., the applicant’s common-law partner, testified that in the morning of July 28, 2018, the applicant got out of bed at around 7:30 a.m. and he made plans to go fishing with two of his neighbours, R.W. and D.L. He came home after fishing at around 1:30 p.m. She recounted that after he came back from fishing, he was not feeling well.
51The applicant ate burgers and then went to D.L.’s home as D.L. was having problems with his water pump and wanted help with that. The applicant and R.W. also went to D.L.’s home to help clean the fish. She testified that the applicant left to go to D.L.’s home at 2:30 p.m. and she joined him there at 4:30 p.m. She estimated that they were probably there until 6:30 p.m.
52After that, D.B. showed up on his four-wheeler to the applicant’s home. D.B. had been working on his garage, and he asked B.Y. and the applicant if they wanted to come take a look. The three of them jumped onto the four-wheeler. After about 15 to 20 minutes at D.B.’s house, the applicant said he was not feeling well and wanted to go home. She testified that, to her, the applicant did not show signs of intoxication.
53All three of them got on D.B.’s ATV and went towards the applicant’s home. She testified that she was sitting in the middle behind D.B. and that her legs were resting on the wheelhouse. The applicant was facing forwards, sitting on the cargo rack on the back and he was not holding onto her. His legs were resting on top of her legs. She testified that D.B.’s speed was coasting, and he was probably on the first gear.
54While on the ATV, she saw and waved at C.B., a neighbour, who was pulling out of an adjacent laneway.
55She testified that three-quarters of the way down the laneway to their home, she felt and heard a jerk/thud, she looked, and the applicant was gone. She pounded on D.B.’s back and told him that the applicant had fallen off the back. She told D.B. to go to D.W.’s home and call 9-1-1. She stayed with the applicant on the laneway. A number of neighbours ran to the scene.
56She testified that two of her neighbours took her away from the scene because she was upset, and they wanted to let the fire department do their job. She said she went home to get the applicant’s wallet and pills. She testified that those who stayed at the scene were D.B., R.W. and D.L. Those same two neighbours who took her away from the scene then took her to the hospital because, by the time she got back to the scene, the ambulance had already come and taken the applicant.
57She testified that at the hospital, she told the doctor that the applicant fell off the back of a four-wheeler.
58B.Y. was questioned regarding the various accounts of the incident. To summarize her testimony, she did not know where information came from or said that information did not come from her when the description of the incident did not match her account.
59She testified that the account given to Captain [M.S.] at the scene was not accurate. The applicant had not just come off working a midnight shift. Instead, the applicant had finished work on Friday night at 7 p.m. She testified that she never got to tell Captain [M.S.] what happened because when she returned to the scene, everyone was gone. She also testified that she never spoke with the ambulance personnel.
Testimony of D.B.
60D.B., a long-time friend of the applicant’s, testified that he was not part of the group that was out fishing with the applicant earlier in the day. He testified that he went to the applicant’s place at around 7:30 p.m. to 8:00 p.m. and stayed at their house for 10 minutes. He testified that there was no indication that the applicant had been drinking. D.B. travelled on his ATV with the applicant and B.Y. to his home, so that he could show them his garage.
61He testified that he was at the handlebars, the applicant was on the back rack, and B.Y. was in between them. He testified that the applicant had put a cushion from his house on the seat. Although he initially testified that the applicant was facing the front with his legs over the fender, near the end of his testimony he said that he did not have a clear recollection of whether the applicant was sitting with his legs facing forwards or backwards. D.B. testified that he was driving in first gear and travelling at a crawling speed because the applicant was on the bike and with three on the bike it was not wise to go fast.
62The applicant looked at the garage, they visited D.B.’s mother and then the applicant said he was not feeling well, so they turned back to the applicant’s home at around 8 p.m. to 8:15 p.m. On the way, he testified that he saw C.B. in her car.
63He estimates that the incident took place between 8:30 p.m. to 8:45 p.m. He testified that he did not see the applicant fall off. He became aware of the applicant falling because he heard a thud. He looked at the applicant, who was unconscious and laying on his back on the laneway. He testified that the applicant fell down about halfway down the laneway. B.Y. told him to “go call 9-1-1” so he drove the ATV down to D.W.’s house and he told D.W. to call 9-1-1. He testified that he told D.W. that the applicant fell off the back of the ATV. He testified that the ATV was left at D.W.’s house because he panicked, and he ran back to the scene with others. When asked at the hearing whether he did things he did not want the authorities to know about, he answered “no.”
64He testified that the fire department was present first. B.Y. was beside the applicant by his side. When the ambulance personnel started working on the applicant, B.Y. went to the side. When the ambulance took the applicant, D.W. drove B.Y. to the hospital.
65He testified that he spoke with Captain [M.S.] and that the three men that Captain [M.S.] is referring to in the EUO transcript are himself, R.W. and D.L. He testified that when Captain [M.S.] asked him to make a report, he told him that the applicant fell off the back of a bike.
66He testified that he had no idea where the narrative about the applicant tripping and falling came from. He testified that he would not have told Captain [M.S.] that the applicant was walking down and just fell backwards. Furthermore, he testified that he did not know what the applicant’s working situation was on the day of the incident. D.B. could not recall if Captain [M.S.] interacted with R.W. or D.L. because he was not paying attention to that and stated that they might have talked to Captain [M.S.]. He testified that he could not remember if Captain [M.S.] asked him for his name or for the names of the other individuals.
Testimony of Captain [M.S.]
67Captain [M.S.], a volunteer fire captain for the Town of Greater Napanee Fire Department, testified that when he arrived on the scene, the applicant was laying on the ground about halfway or between one-third and halfway down the laneway. There were three other men there and one female who was just walking up towards him and she stood just off to the side of the three men. When asked if any other people were at the scene other than the applicant, the three other males and one female, he replied that he did not know and could not say if there were onlookers. When asked whether the female was upset, he answered that she did not seem upset at all.
68Captain [M.S.] testified that he did not see an ATV, golf cart or any other motor vehicle at the scene. He testified that the police were not called to the scene because it was a medical call. He testified that if he was told about an ATV, then he would have phoned the police to attend because then it would be a motor vehicle accident.
69Captain [M.S.] testified that he was the incident commander and the people on the scene spoke only to him. He initially testified that when he asked the three men about what had transpired, the three men, and one individual in particular, said that the applicant worked midnights, he was fishing and consuming alcohol and they were walking down the road when the applicant fell backwards and hit his head. Later in the questioning, when asked if he got this information from one individual or from three individuals, he testified that the best way to explain what happened is that there were three people in front of him, only one could speak at a time so one person told him what happened and the other individuals confirmed that is what happened. Captain [M.S.] testified that the person who told him this account also indicated that he was drinking and fishing that day along with the applicant.
70He testified that from the way they were responding, he sensed that something was missing. Their responses did not sound right to him. When he asked for their names, they totally clammed up and would not say anything else.
71Captain [M.S.] asked for the applicant’s health card to give to the ambulance personnel when they arrived, and the female left the scene. He presumed that when he asked for a health card and she went to retrieve it, that she had a relation to the applicant. He testified that the female did not take long to get the health card.
72Captain [M.S.] testified that he told everyone at the scene, including the ambulance personnel, what had been told to him. Someone who was a part of his team went with the ambulance to help the applicant. He did not know if anyone else at the scene spoke to the ambulance personnel.
Testimony of C.B.
73I heard evidence from C.B., the applicant’s neighbour at the time of the incident. She testified that her home at the time, and the applicant’s home, are on the south side of South Shore Road, while D.B.’s home is on the north side of South Shore Road. Therefore, in order to get to D.B.’s home, they would have to cross South Shore Road. She testified that as she was driving, she saw the applicant, D.B. and B.Y. on an ATV, just directly across in the laneway at around 8:30 p.m. She said they were stopped and she assumed that they were waiting to cross South Shore Road. She did “a beep and a wave.” She testified that B.Y. waved back.
74When asked how they were sitting on the ATV, she indicated that B.Y. was squished in the middle, D.B. was in the front and the applicant was on the back.
75When asked how the applicant was positioned on the ATV, she indicated that she could only see that his leg was kind of up. She did not know if his leg was on B.Y. or on the seat.
76When asked if the applicant was facing forwards or backwards, she indicated forwards.
ANALYSIS
77The applicant suffers from a serious brain injury and cannot remember any details whatsoever from July 28, 2018. I have not placed any weight on his evidence from the day of the incident because he has no memory of it.
78I find that an ATV was involved in the incident and that the applicant’s injuries are a direct result of his fall off the ATV.
79I find that at least one of the three men at the scene provided Captain [M.S.] with false information and failed to mention the involvement of the ATV in the incident. I also find that B.Y. failed to mention the involvement of the ATV in the incident. I am not able to determine who exactly of this grouping of three men provided this false information, but it is known that D.B. was among that group because he testified that he was and Captain [M.S.] confirmed this. D.B. testified that he told D.W., the individual who made the 9-1-1 call, that the applicant fell off the back of the bike. He also testified that he told Captain [M.S.] that the applicant fell off the back of a bike. However, D.W. does not mention an ATV during the 9-1-1 call. Captain [M.S.] testified that he did not see an ATV at the scene and that no one told him about an ATV being involved in the incident. I accept Captain [M.S.’s] evidence that no one at the scene mentioned the involvement of an ATV over D.B.’s evidence that he told Captain [M.S.] that the applicant fell off the back of a bike because I find that Captain [M.S.] was a more credible witness as he did not have inconsistencies in his statements, whereas D.B. did.
80I find that there is a strong possibility that D.B. was not the individual who provided Captain [M.S.] with the false account of the incident. Captain [M.S.] testified that the person who told him the account also said that he was drinking and fishing that day along with the applicant. I accept D.B.’s evidence that he was not among the group that went fishing prior to the incident. I also accept B.Y.’s evidence in testimony that the applicant went fishing with R.W. and D.L., and not with D.B. Therefore, I have come to the conclusion that D.B. contributed to the confusion surrounding the incident because he left his ATV back at D.W.’s house and so the ATV was not at the scene, and then he did not make an effort to convey to any of the fire or ambulance personnel that an ATV was involved in the incident. Despite this, I am convinced that an ATV was involved for the following reasons below.
81First, I accept the evidence of C.B., who testified that she saw the applicant, B.Y. and D.B., on an ATV at the approximate location and time of the incident. She testified that she saw all three individuals on the ATV at around 8:30 p.m. They were directly across in the laneway and they were stopped, and she assumed that they were waiting to cross South Shore Road. All of the accounts of the incident indicate that the applicant was found on his own laneway, which is right off of South Shore Road. The 9-1-1 call was made at 9:17 p.m.
82C.B. testified that the applicant was facing forwards on the ATV. B.Y. testified that the applicant was facing forwards. D.B. provided different answers throughout the course of the claim, but near the end of his testimony at the hearing, he said that he did not have a clear recollection of whether the applicant was sitting with his legs facing forwards or backwards. My focus is on whether the incident involved an ATV, and I have not placed considerable weight on submissions regarding whether the applicant was sitting forwards or backwards on the ATV, although I can determine that D.B.’s account of the applicant’s sitting position was inconsistent.
83I find that the testimony of C.B. is of great importance to the applicant’s case. C.B. established that the applicant, D.B. and B.Y. were all on the ATV at the approximate date and time of the incident.
84Secondly, I have placed considerable weight on Captain [M.S.’s] testimony. In particular, he was candid in expressing that from the way the three men were responding to his questions, he sensed that something was missing. The account of the incident did not sound right to him. When he asked for their names, they totally clammed up and would not say anything else. I find that the account the men provided, that the applicant and the men were walking down the laneway when the applicant fell backwards and hit his head, was not very believable. Captain [M.S.] felt something was missing from this story. He could only work with the information he was being provided and with what he could see with his own eyes, which was that there was no mention of an ATV and no ATV at the scene. I find that the involvement of an ATV and the applicant falling off the back of an ATV while feeling unwell is, on the balance of probabilities, the accurate account of what occurred.
85Furthermore, D.W.’s undated written statement indicates that after she hung up the phone call with the 9-1-1 operator, she ran out the door and noticed D.B.’s four-wheeler sitting there outside her home as she was leaving her driveway. Therefore, D.W.’s statement supports D.B.’s account that he left the ATV at D.W.’s house.
86I considered the respondent’s arguments that alcohol was an important feature of this incident and reviewed the documentation submitted regarding the applicant’s history of alcohol use before the incident and his alcohol consumption on the day of the incident. Ultimately, I have not placed weight on this evidence in determining if an ATV was involved in the incident. My finding is that the applicant’s alcohol consumption that day is not relevant to whether the incident was an “accident.”
87In addition, there were submissions made by both sides regarding whether B.Y. was the female at the scene whom Captain [M.S.] referred to during his testimony. B.Y. testified that two of her neighbours took her away from the scene because she was upset, and they wanted to let the fire department do their job. They took her home to get the applicant’s wallet and pills, and by the time she got back to the scene, the ambulance had already come and taken the applicant. Captain [M.S.] testified that the female at the scene did not seem upset at all and that when he asked for the applicant’s health card, the female left the scene and it did not take her that long to get the health card. I find that this female who retrieved the health card is most likely B.Y., as she testified that she was taken home to get the applicant’s wallet and pills. I find that although B.Y. wants to establish that she was not at the scene for a very long time, which may be true, it is a fact that she was at the scene for at least some time. I find that she also had a role, similarly to D.B., in not providing the fire and/or ambulance personnel with an account of the involvement of an ATV in the incident and this contributed to why this matter is before me today.
88For all the reasons listed above, I find that the incident involved an ATV and the applicant has satisfied his onus that he was in an “accident” as defined in s. 3(1) of the Schedule.
CONCLUSION
89I find that the applicant was involved in an “accident” as defined in s. 3(1) of the Schedule and, as a result, he is entitled to statutory accident benefits.
Released: February 3, 2021
_____________________________
Melody Maleki-Yazdi
Adjudicator