Licence Appeal Tribunal
Released Date: 03/05/2021
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:
Sonia Miller
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
PRELIMINARY ISSUE DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Bianca Bielecki, Counsel
For the Respondent:
Charlotte Watson, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION
OVERVIEW
1The applicant’s spouse was involved in an automobile accident on June 25, 2015, when he, a pedestrian, was struck by a vehicle. The applicant observed her spouse’s serious injuries later that day in hospital and claims to have suffered psychological impairments as a result. Neither the applicant nor her spouse was a named insured at the time of the accident.
2The applicant initially sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”) from the insurer of the vehicle that struck her spouse. She was paid certain benefits by that insurer, but those benefits were terminated on September 5, 2019.
3The applicant then sought benefits from the respondent, the Motor Vehicle Accident Claims Fund (“MVACF”). MVACF denied the applicant’s claim and she applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
4The respondent raises two preliminary issues that would dispose of the application. The issues are as follows:
i. Was the applicant involved in an “accident” as defined in the Schedule?
ii. Is the applicant an “insured person” as defined in the Schedule?
ISSUES
5The sole substantive issue in dispute is as follows:
i. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 weekly for the period of September 21, 2019 to date and ongoing, submitted September 11, 2019 and denied by the respondent on September 20, 2019?
RESULT
6The applicant was not involved in an “accident” as defined in the Schedule and is not entitled to claim statutory accident benefits. This determination disposes of the application. It does not matter that the applicant is deemed an “insured person” for the purposes of the Schedule under the Motor Vehicle Accident Claims Fund Act, R.S.O. 1990, c. M.41. The application is dismissed.
ANALYSIS
Was the applicant “involved” in an “accident” as defined in the Schedule?
7An “accident” is defined in s. 3 of the Schedule as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.
8The circumstances giving rise to the application are not in dispute. The applicant’s spouse, who was a pedestrian at the time, was struck by a vehicle. He suffered serious injuries. The applicant was not present for the accident. Upon learning that her spouse had been struck by a vehicle, the applicant attended the scene of the accident. She did not find him there. He had, by this time, been taken to hospital. She then attended at the hospital where she observed her spouse’s injuries.
9The applicant submits that the trauma of observing her spouse’s serious injuries resulted in her psychological impairment. The respondent does not contest that the applicant suffered psychological injuries.
10The parties disagree on whether the applicant was involved in an incident in which the use or operation of an automobile directly caused her impairment. Put another way, the dispute turns on the causation of the applicant’s impairment.
11The respondent submits that the applicant’s injuries were indirectly caused by the accident. The applicant, on the other hand, submits that there is a direct and proximate relationship between the injuries and the accident.
12The Ontario Court of Appeal set out the test for determining whether there has been an “accident” under the Schedule in Greenhalgh v. ING Halifax Insurance Co (“Greenhalgh”).2 The test has two parts:
Did the incident arise out of the use or operation of an automobile? [“the purpose test”]; and if so,
Did such use or operation of an automobile directly cause the impairment? [“the causation test”]
13Both the purpose test and the causation test must be met for an incident to be considered an “accident”.
14For the following reasons, I find that the incident in which the applicant was involved did not arise out of the use or operation of an automobile. Nor was the applicant’s impairment directly caused by the use or operation of an automobile. On the facts of this case, the test in Greenhalgh is not met. The incident causing the applicant’s impairment does not fall within the definition of an “accident” under the Schedule.
15The applicant submits that the automobile striking her spouse while driving on the road is the relevant “incident.” However, the moment the applicant observed her spouse’s injuries must also form part of the incident because, as the applicant has submitted, it was the trauma of witnessing her spouse in an injured state that resulted in her psychological injuries. In my view, casting the collision in which the applicant’s spouse was injured and her encounter with him later in hospital as a single “incident” expands the scope of the term beyond what is reasonable.
16I find that the “incident” from which the applicant’s psychological injuries arose was observing her spouse’s traumatic injuries in hospital some time after the accident. The impairment did not arise out of the use or operation of an automobile. It did not result from the ordinary and well-known activities to which automobiles are put (see Amos v. Insurance Corp. of British Columbia3).
17The applicant does not submit that an automobile was present when she observed her spouse’s injuries in the hospital. Her submissions on the purpose test relate to the accident which caused her spouse’s injuries. It may well be the case that the applicant’s spouse was injured due to the use or operation of an automobile. But that is not the issue I have been asked to decide. In my view, the applicant’s impairment arose from an incident that is entirely separate from any “accident” as defined in the Schedule: namely, her impairment arose from learning of the accident, attending the scene and not finding her spouse there, traveling to the hospital, observing her spouse’s serious injuries, and suffering psychological trauma. The incident the applicant was involved in was the aftermath of an accident, not an accident itself. To reiterate, the incident relevant to the applicant’s impairment was the scene that unfolded at the hospital.
18The following are indicators that the relevant incident did not arise out of the normal use or operation of an automobile, leaving the first part of the test in Greenhalgh unmet:
a. no automobile was present when the applicant observed her spouse’s injuries;
b. the applicant had no physical contact with the subject automobile; and
c. at the time the applicant observed her spouse’s injuries, the use or operation of the subject automobile had ceased.
19There is an element of causation embedded in the purpose test. In determining that the relevant incident was separate from the accident in which the applicant’s spouse was injured, I have considered the proximity between the events. The circumstances giving rise to the applicant’s impairment are simply too remote from the automobile striking her spouse to conclude that the applicant herself was involved in an accident.
20The second branch of the Greenhalgh test is also not met because the use or operation of an automobile did not directly cause the applicant’s impairment. I have found that the relevant incident is not the automobile striking the applicant’s spouse, but the scene that unfolded later at the hospital. It is clear on the facts that the applicant’s impairment was not directly caused by the use or operation of an automobile.
21To assist with determining causation, the court in Greenhalgh set out three guiding considerations:
a. the “but-for” consideration;
b. the “intervening act” consideration; and
c. the “dominant feature” consideration.1
22While not determinative, the “but-for” consideration may assist in screening out irrelevant causes. In some cases, the presence of “intervening acts” may serve to break the link of causation where the intervening events cannot be said to be part of the ordinary course of use or operation of the automobile. In other cases, it may be useful to ask if the use or operation of the automobile was the “dominant feature” of the incident; if not, it may be that the link between the use or operation and the impairment is too remote to be called “direct”.
23The applicant submits that “but for” the automobile striking her spouse, she would not have sustained an impairment. She submits that there were no intervening acts, and that the dominant feature of the accident that caused her injuries was the use and operation of an automobile.
24The applicant’s position falters when one examines the Greenhalgh considerations. First, “but for” consideration can be helpful in weeding out irrelevant causes, but it is not, on its own, determinative. “But for” the use or operation of an automobile, the applicant’s spouse would not have been injured, she would not have observed him in an injured state, and she would not have sustained a psychological impairment. In this sense, the use or operation of an automobile is not irrelevant to the applicant’s impairment. But again, there are several intervening acts between the use or operation of an automobile and the applicant’s impairment:
i. the applicant’s spouse was taken from the scene of the accident to hospital;
ii. the applicant learned of the accident;
iii. the applicant visited the scene of the collision, but did not find her spouse there;
iv. the applicant traveled to hospital;
v. the applicant viewed her spouse’s serious injuries;
vi. the applicant experienced psychological trauma, and
vii. the applicant sustained an impairment.
25This chain of events makes apparent how remote the accident was to the applicant’s impairment. Even if the automobile striking the applicant’s spouse is wrapped into the relevant “incident,” which I do not accept, and the intervening acts are ignored, the “dominant feature” consideration fails to save the applicant’s claim, as the automobile played a role that was secondary or peripheral to the applicant’s psychological trauma.
26The Greenhalgh test is not met. The facts of this case do not align with the definition of an “accident” in the Schedule, and the applicant is therefore not entitled to benefits.
Is the applicant an “insured person”?
27I have determined that the applicant was not involved in an “accident” as defined in the Schedule, and this disposes of the application. However, I will briefly comment on the issue of whether the applicant is an “insured person.”
28The respondent submits that the applicant fails to meet the definition of an “insured person” under s. 3(1)(b) of the Schedule. She is not a named insured. She is not specified in a motor vehicle liability policy as a driver of the insured automobile. She is not the spouse or a dependant of a named insured. She was not “involved in an accident” involving an insured automobile. She was not an occupant of an insured automobile at any time during the 60 days before the accident.
29The applicant submits that the definition of an “insured person” in the Schedule applies in respect of a particular motor vehicle liability policy, and she is not an insured person in respect of a particular motor vehicle liability policy. Because she is not insured under a specific policy, she has recourse to the MVACF under s. 268(2)2.iv of the Insurance Act. That provision states that if recovery is not available through any other route set out in the subsection, then a non-occupant of a vehicle has recourse against the MVACF. The applicant does not have recourse through any of the other routes prescribed in s. 268(2)2.iv of the Insurance Act.
30Section 6(2)(a) of the Motor Vehicle Accident Claims Fund Act provides that references to an “insured person” are deemed references to a person with recourse to the MVACF.
31Therefore, the applicant submits she does not need to meet the definition of an “insured person” set out in s. 3(1) of the Schedule to be eligible to claim statutory accident benefits.
32Subsection 268(2)2.iv of the Insurance Act is about who is liable to pay for statutory accident benefits. It is a priority of payment provision. It does not automatically entitle a person to accident benefits; it simply provides for who will be liable in the event statutory accident benefits are owing.
33The sole substantive issue in dispute is the applicant’s claim for an income replacement benefit. Without an accident-related impairment to ground her claim for benefits under the Schedule, the application cannot proceed. Therefore, I dismiss the application.
ORDER
34The application is dismissed.
Released: March 5, 2021
__________________________
Theresa McGee
Vice-Chair
Footnotes
- O. Reg. 34/10.
- 2004 CanLII 21045 (ON CA) at para. 10
- 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405.