Citation: Pinera v. Motor Vehicle Accident Claims Fund (MVACF), 2021 ONLAT 20-001681/AABS

Released: March 5, 2021

Tribunal File Number: 20-001681/AABS

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:

Humberto Carreon Pinera

Applicant

and

Motor Vehicle Accident Claims Fund

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Cary Schneider, Counsel

For the Respondent: Dilpreet Grewal, Counsel

Heard via Videoconference on: November 6, 2020

OVERVIEW

1Humberto Carreon Pinera, (“the applicant”), was involved in an incident on August 16, 2019 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The respondent refused to accept that the applicant was injured as a result of an automobile accident. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUE

3Was the applicant involved in an accident as defined by the Schedule?

RESULT

4I find insufficient evidence to determine that the August 16, 2019 incident is an accident as defined by the Schedule.

BACKGROUND

5The subject incident occurred after the applicant had an evening out with friends in Downtown Toronto. It was late Friday night, technically Saturday. The applicant had some food and drinks at a bar earlier and, after he and his friends went their separate ways home, he stopped to get some fast food at about 1:00 a.m. He left the fast food restaurant around 1:30 a.m. and proceeded to a prominent intersection nearby to meet an Uber for a ride home.

6The incident occurred while the applicant was crossing a side street on his way to the intersection from the restaurant. The parties accept that the applicant sustained soft-tissue injuries as well as a fractured clavicle, which required surgical intervention, as a result of the subject incident.

7At issue is whether a vehicle caused the applicant’s injuries.

8The applicant’s position is that a vehicle struck him while he was crossing the side street, that the accident caused his injuries, and that he is entitled to accident benefits as a result. The respondent’s position is that there is no evidence that the incident involved a vehicle and therefore, the applicant is not entitled to any benefits.

ANALYSIS

9Section 3 of the Schedule defines an accident 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”.

10Caselaw has established a two-part analysis to determine whether an accident occurred, as it is defined by the Schedule: whether the use or operation of a motor vehicle was involved in the incident (i.e., “the purpose test”) and, if so, whether such use or operation directly caused the claimant’s injuries (i.e., “the causation test.”)¹.

11The parties agree that the causation test is met in this case if the applicant can meet the purpose test. In the respondent’s perspective, the applicant fails to meet the purpose test because he is unable to provide evidence that a vehicle was involved. The onus is on the applicant to prove that the incident meets the criteria to be considered an accident.

12After considering the submissions and upon review of the evidence, I agree with the respondent and find that the applicant has failed to prove that a vehicle was involved in the incident. Therefore, he has failed to satisfy the purpose test and is not entitled to accident benefits from the respondent. My reasons are as follows.

The Witnesses

13The hearing involved the testimony of the applicant and Toronto Police Constable, Shaun Asselstine (“the constable”). The relevant documentary evidence before me included the constable’s police book notes and associated letters regarding a collision report, hospital records, and walk-in clinic records.

14The applicant testified that, on the evening of the incident, he met up with a friend at home for dinner and drinks starting around 6:00 p.m. A few more friends arrived around 9:00 p.m. and, around midnight, the group of four headed to a restaurant and bar for wings and beer. About an hour later, around 1:00 p.m., the applicant and a friend left the group and, before heading home, stopped at a fast food restaurant. The applicant’s friend took his food to-go, while the applicant stayed to eat and planned to take an Uber home after. The applicant left the fast food restaurant and went towards a major intersection to meet an Uber. The incident occurred while the applicant crossed the street in front of the fast food restaurant, while he was on his way to the nearby intersection. He maintains that he was not intoxicated during the incident, noting that his alcohol consumption was spread out throughout the night and that it had been a while between his last drink and the incident.

15The applicant testified that he never saw any witnesses, or the vehicle, before or after the incident. He remembers “something” hitting the back of his leg, above the knee, and that he remembers being unable to brace himself while hitting the ground. He said that his collarbone hit the curb and that he believes he hit his head then and temporary lost consciousness. He reported that he felt disoriented after and that he wanted to go home. The applicant testified he still had his possessions following the incident, like his mobile phone, which to him rules out that an assault or robbery occurred.

16The applicant eventually boarded a bus and took it to a station near his home and walked home from there, despite there being a stop further down the route, closer to his home. Once home, according to the applicant, he had trouble doffing his shirt and pants due to pain and went to sleep with his pants on from that evening because it was too difficult and painful for him to remove them.

17The next day the applicant woke up with arm and leg pain so severe that he wondered if he fractured them. He went to a walk-in clinic in the basement of his building and reported his injuries to the physician on-call. The physician identified a fractured clavicle and sent the applicant to the hospital. The applicant went to the hospital for x-rays and, at a subsequent visit, the applicant’s fractured clavicle was treated surgically with a plate, which was only removed about a month prior to this hearing.

18The applicant went home once he was discharged from his initial hospital visit. He then called the police to file an accident report. He testified that he met with the constable of the traffic services department shortly before midnight on the Saturday following the incident.

19The constable testified that he was dispatched to investigate a possible accident. He said that the police call-taker noted that the applicant believed he was hit by a car. He met with the applicant and discussed the incident. During the discussion, there was some confusion about the location of the incident. The call-taker noted that the incident was reported to have occurred at one location, while the applicant reported to the constable that it occurred at a different location. It is possible this coloured the discussion between the constable and the applicant and it is possible that this impacted the constable’s decision to refrain from writing an accident report. At the hearing it was determined that the location confusion may have been a result of the miscommunication between the call-taker and the applicant. In any event, this confusion has no impact on my analysis as to whether an accident occurred.

20At the hearing, the constable agreed that his police notes state that the applicant’s right knee was scraped, and he agreed that he had no evidence to contradict the applicant’s account of the incident. However, the constable also testified that he did not remember the applicant showing him his knee. To me, evidence of a scraped knee is not evidence that a vehicle was involved in the incident. Likewise, the absence of evidence discrediting the applicant is not evidence that his account of the incident is correct.

21Following the discussion, the constable determined that he was unable to complete an accident report. He testified that it was because he didn’t have enough detail, and, looking at it in the totality, believed that it “wasn’t consistent” with a motor vehicle accident. He gave the applicant his card and told him to follow up if he had any other information. In cross examination, the constable noted that he made no notes that contrast the applicant’s reports, nor do any notes indicate that the applicant was committing fraud or making up the story. He further confirmed that he understood that the applicant later attempted to get relevant surveillance video from the fast food location but was unable to because no police report was filed. In the end, according to the constable, while the applicant may have believed he was hit by a vehicle, there was no evidence to support the applicant’s reports and, as a result, no accident report was written.

The Evidence

22The hospital records fail to establish that a vehicle was involved in the incident. At least three times the incident is noted as a fall or a syncopal episode. Another time the record-taker questions whether it was a syncopal episode but in the same note states “was struck from behind by car last night, patient isn’t sure” (emphasis added). Here, it remains uncertain whether the applicant was struck by a vehicle. The orthopaedic consultation note is also equivocal. The note states that the applicant “believes he was struck by a car and may have lost consciousness” (emphasis added). Lastly, one of the initial records states “? hit by vehicle last night”. While this statement seems direct, the question mark to begin it shows that the note-taker remains uncertain whether it was as a result of an incident involving a vehicle.

23The walk-in clinic records are equally unpersuasive. They reference the incident once and characterize it as a “black out episode where he believes he fell but was not sure what happened”. This also fails to establish that a vehicle was involved in the incident.

CONCLUSION

24While I accept that the applicant is credible and sustained serious and possibly life-long injuries as a result of the incident, he’s provided no evidence to prove that he was struck by a vehicle – he cannot say for certain that a vehicle hit him, he presents no witnesses to corroborate his belief, and was unable to submit any evidence to confirm a vehicle was involved in the incident. For this reason and those above, I find that the applicant was not involved in an accident as defined by the Schedule.

Footnotes

1. 1Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC); Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA); and Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA).