[MN] v. Aviva General Insurance, 2021 CanLII 35584

Citation: [MN] v. Aviva General Insurance, 2021 ONLAT 19-001788/AABS

Release date: 04/29/2021

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:

[MN]

Applicant

and

Aviva General Insurance

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Gordon Harris, Counsel

For the Respondent:

Kevin Griffiths, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The respondent, Aviva General Insurance, raises a preliminary issue in respect of its dispute with the applicant, [MN], over his claims for accident benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule"). The applicant's claims arise from events that occurred on April 8, 2016 and October 4, 2016, when the applicant was a passenger in prisoner transfer vehicles.

2The respondent maintains that the events in question do not fall within the definition of an "accident" under the Schedule. If the respondent is correct, it will not be liable for accident benefits in relation to these claims, and the application will be dismissed. If the Tribunal determines that the events in question were accidents, however, the application will proceed to a hearing of the substantive issues in dispute.

PRELIMINARY ISSUE

3The preliminary issue to be decided in this hearing, in relation to the events of both April 8, 2016 and October 4, 2016, is:

i. Was the applicant involved in an "accident" pursuant to s. 3(1) of the Schedule?

RESULT

4The events of April 8, 2016 and October 4, 2016 are "accidents" within the meaning of s. 3(1) of the Schedule. The application shall proceed to a hearing of the substantive issues in dispute.

BACKGROUND

5The central facts of this matter are not in dispute. The applicant, a 68 year old man, is a veteran of the armed forces. He has a diagnosis of severe spinal stenosis stemming from injuries he sustained in Bosnia in 1997. At the time of the events in question, the applicant was incarcerated in the provincial correctional system.

6On April 8, 2016, correctional authorities transferred the applicant, handcuffed and shackled, in a prisoner transfer van from the Ottawa-Carleton Detention Centre to the Central North Correctional Centre in Penetanguishene, Ontario – an approximately eight-hour drive. The van was equipped with unpadded fibreglass seats and the applicant was unrestrained by a seatbelt. Correctional staff provided the applicant with three folded blankets to use as cushioning.

7On October 4, 2016, the applicant was transferred from Toronto East Detention Centre to downtown Toronto for a court appearance and back in a prisoner transfer van with aluminum cubicles and benches. The applicant was handcuffed and unrestrained by a seatbelt.

8The applicant submits both events triggered severe back pain and exacerbated his pre-existing injury.

ANALYSIS

9The present dispute is whether the events of April 8, 2016 and October 14, 2016 constitute "accidents" as defined in s. 3(1) of the Schedule.

10Section 3(1) 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."

11The applicant maintains that the events in question were both "incidents" or discrete events wherein the use or operation of an automobile directly caused an impairment, and that the events accordingly fall within the Schedule's definition of an "accident."

12The respondent submits that the events in question were not "incidents" and therefore cannot qualify as accidents. "Incident" is not defined in the Schedule or in the Insurance Act,² and the meaning of the term in the context of the Schedule has not been extensively litigated. The respondent submits that the term should be given its plain and ordinary meaning, which, it submits, is "a particular happening, always noteworthy." It submits that the legislature intended to restrict the definition of an accident to some noteworthy or unusual event.

13On the dates in question, the respondent submits, nothing unusual occurred. The applicant was merely using the seats of the vehicles as they were designed to be used.

14In the alternative, the respondent submits that the events in question are not "accidents" because they fail the test for causation set out in Greenhalgh v. ING Halifax Insurance Co ("Greenhalgh").³ Specifically, the respondent submits the "dominant feature" of the events was the applicant's degenerative spinal condition and not the use and operation of an automobile.

15I will consider each of the respondent's arguments in turn.

Were the events of April 8 and October 4, 2016 "incidents"?

16In support of their submissions on the meaning of "incident" in s. 3(1) of the Schedule, both parties rely on State Farm Mutual Insurance Company v. Economical ("State Farm"),⁴ a 2018 decision of the Superior Court of Justice. In State Farm, the court rejected a narrow interpretation of the term "incident" in favour of a more expansive one. The court held that while the term connotes a discrete event, "there is no basis for finding that the consequences of the event must be immediate or occur instantaneously."⁵

17In that case, the discrete event constituting the incident was the collapse of one side of the driver's seat in a taxi. The collapsed seat put the driver at an awkward angle and, over the course of several shifts, caused an impairment.

18The applicant submits that in adopting an expansive meaning of "incident," the court in State Farm affirmed the fair, large and liberal interpretive approach taken by the arbitrator at first instance, an approach the court characterized as both remedial and suited to the attainment of the Schedule's consumer protection objects. The same approach, the applicant submits, is called for in these circumstances.

19The applicant further submits that in the present case, as in State Farm, the discrete event constituting the "incident" was the applicant being forced to ride in an awkward position. The incident was shaped by a combination of factors including the hard material of the seating, the absence of a safety restraint, the applicant's pre-existing medical conditions, and his inability to reposition or stabilize himself or move around for relief.

20The respondent submits that the occurrences in question were uneventful and not noteworthy: the applicant was merely using the seats of the vehicles as they were intended to be used. The seats were simply too hard for the applicant to tolerate sitting on for prolonged periods.

21The respondent submits that the court's analysis in State Farm suggests that it would have rejected the notion that an injury from wear and tear due to sitting for extended periods on a seat that had not collapsed would qualify as an accident, and that this is a case of ordinary wear and tear on the body from driving.

22I agree with the applicant. The term "incident" in the Schedule should be given a fair, large, liberal interpretation that best ensures the attainment of its consumer protection objects. This approach accords with s. 64(1) of the Legislation Act, 2006⁶ and is consistent with the modern principle of statutory interpretation outlined by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re).⁷ I agree with the respondent that statutory language should be read in its grammatical and ordinary sense, but it must also be read in its entire context, harmoniously with the legislative scheme. Legislation is deemed to be remedial and should be examined purposively according to its intent, meaning and spirit.

23At first impression, the term "incident" is broad enough to encompass events that may be usual or commonplace. The Merriam-Webster Dictionary defines "incident" as "an occurrence of an action or situation that is a separate unit of experience." The word is synonymous with "event", "occurrence", "episode" or "happening."

24The respondent submits without citing specific authority that the plain and ordinary meaning of the term "incident" is an unusual event or "a particular happening, always noteworthy." I am not persuaded that by using the term "incident" the legislature intended to restrict the definition of an accident to some noteworthy or unusual event. To inject an assessment of the "noteworthiness" of an event at the definition stage introduces complexity to the analysis that is inconsistent with the purpose of the statutory scheme, which is to provide expeditious and efficient access to accident benefits to all victims, regardless of fault.⁸ That said, most events giving rise to claims for accident benefits will be "noteworthy" in at least one sense: they are alleged to have caused bodily impairment or damage to property.

25Finally, the respondent submits that the court in State Farm would have rejected the events in question as "incidents" because it rejected ordinary wear and tear on the body as meeting that definition. It is not reasonable to infer that the court in State Farm had anything resembling the present set of facts in mind when it rejected ordinary wear and tear on the body as an "incident" within the definition of an "accident." The court was engaged in differentiating the facts of the case before it, where the driver's seat of a vehicle had collapsed, to the routine strain a driver might experience if required to sit for long periods. I do not consider the wear and tear on the applicant's body from the events in question "ordinary". The respondent submits that he was simply using the seats of the prisoner transfer van as they were intended to be used. I do not agree. The applicant was at all times handcuffed (and on at least one of the two rides, also shackled by the feet) and so unable to steady himself in response to the vehicle's movements. He was unable to request stops or breaks to get up and move around for relief. Taken together with the applicant's medical needs, it is unreasonable to conclude that the applicant was simply using the seating in an ordinary manner, as it was intended to be used.

26I find that the events of April 8, 2016 and October 4, 2016 were "incidents" for the purposes of s. 3(1) of the Schedule.

Was the "dominant feature" of the events of April 8 and October 4, 2016 the use or operation of the automobile?

27In Greenhalgh, the Ontario Court of Appeal set out the test for determining whether there has been an "accident" under the Schedule. The test has two parts:

i. Did the incident arise out of the use or operation of an automobile? ["the purpose test"]; and if so,

ii. Did such use or operation of an automobile directly cause the impairment? ["the causation test"]

28Both the purpose test and the causation test must be met for an incident to be considered an "accident".

29To assist with determining causation, the court in Greenhalgh set out three guiding considerations:

i. the "but-for" consideration;

ii. the "intervening act" consideration; and

iii. the "dominant feature" consideration.

30While 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".

31The respondent concedes that in relation to the April 8 and October 4, 2016 events, the purpose test is met. The events clearly arose out of the use or operation of an automobile. The respondent also concedes that two of the three guiding considerations under the causation test are met: the "but-for" consideration is satisfied, and the "intervening act" consideration does not apply.

32However, the respondent submits that the dominant feature of the applicant's injuries was his degenerative spinal condition and not the use and operation of a motor vehicle. It is in engaging this third, "dominant feature" consideration that the events in question fall short of qualifying as "accidents."

33I disagree. The dominant feature of the incidents in question was the use and operation of an automobile. In Greenhalgh, the dominant feature of the incident was exposure to the elements: when the insured's vehicle became stuck on a country road on a cold winter night, she set out with the intention of walking back the way she had come. She walked for nine or 10 hours before falling into an ice-covered river and suffered severe frostbite resulting in amputation of her legs and fingers. In Chisholm v. Liberty Mutual Group,⁹ the case applied by the court in Greenhalgh, the Court of Appeal found the dominant feature of the relevant incident to be gun shots fired by an unknown assailant at the insured's car when he was driving down a main street. The use or operation of an automobile was, in the court's view, "at best ancillary."¹⁰

34The dominant feature consideration directs me to evaluate the remoteness of the use or operation of an automobile from the alleged impairment. As I have found, several factors contoured the incidents of April 8 and October 4, 2016. The applicant was physically restrained, not by a seat belt but by shackles and was unable to brace himself. His medical needs were recognized as incompatible with the seating in the vehicles by correctional staff before each transfer:

i. on April 8, 2016, staff provided the applicant with folded blankets as cushioning after he remarked that the ride would "cripple him"; and

ii. by October 4, 2016, an order had been made by the applicant's treating physician that he required a wheelchair-compatible van for transport.

35In its submissions, the respondent refers to the events of March 14, 2016, which give rise to another accident benefits claim by the applicant, one that the respondent has accepted. In that accident, the applicant was being transferred in a vehicle under similar circumstances. However, the respondent distinguishes the events of the former accident from the latter events because during the March 14 ride, the vehicle hit several large potholes, causing the applicant to fly upward, hitting his head on the ceiling of the van, and striking his lumbar spine on the edge of the metal bench on the way down. In these circumstances, the respondent submits, nothing like striking a pothole occurred. In the absence of such an event, the only feature dominant enough to cause the applicant's pain was his pre-existing condition.

36The factual record does not support a finding that the events of April 8 and October 14, 2016 were fundamentally distinct from the events of March 14, 2016. In his report, Dr. Ron Kaplan, the psychiatrist who conducted a neuropsychological assessment of the applicant on September 21, 2020, wrote that the applicant reported, "an hour into the [April 8, 2016] road trip as we're coming off the 401, I'm sitting by the wheel and we hit a bump, and it felt like a lightning bolt going through my spine...". The applicant also reported that on October 4, 2016, when he was being returned to the detention centre following court, the transfer vehicle came upon "roads leading up to the intersections [that] come up to a peak, and go over again, they're not smooth intersections" and that after the "bumpy" trip, he was in such acute pain he could not get out of the vehicle on his own, and the driver had to unshackle him in the van.

37Given the circumstances I have described, to conclude that the dominant feature of the applicant's alleged impairment was his degenerative spinal condition would require minimizing the role played by the use and operation of a motor vehicle in the resulting injury. The applicant was not merely sitting stationary for prolonged periods, a task made difficult because of his disability. The operation and movement of the vehicles were instrumental in exacerbating the applicant's pain. The vehicles' use and operation are sufficiently proximate to the resulting impairment to be considered a direct cause of that impairment.

38Nothing in this decision precludes the respondent from raising, at a hearing of the substantive issues, a defence based on the contribution of the applicant's pre-existing condition to his injuries or impairments.

CONCLUSION

39The applicant was involved in "accidents" on April 8, 2016 and on October 4, 2016.

40Pursuant to the Tribunal's October 14, 2020 case conference order, the matter shall proceed to a hearing of the substantive issues (as identified in that order), which shall be conducted back-to-back with Tribunal file number 19-007595/AABS by videoconference on May 17, 18, 19, 20 and 21, 2021.

41If the parties resolve the issues in dispute, the applicant shall advise the Tribunal in writing immediately.

Footnotes

1. 1O. Reg. 34/10.
2. 2R.S.O. 1990, Chapter I.8.
3. 32004 CanLII 21045 (ON CA) at para. 10.
4. 42018 ONSC 3496 (State Farm).
5. 5State Farm at para. 68.
6. 6S.O. 2006, c. 21, Sch. F.
7. 71998 CanLII 837 (SCC), [1998] 1 SCR 27.
8. 8Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 SCR 405; Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 SCR 549.
9. 92002 CanLII 45020 (ON CA) (Chisholm).
10. 10Chisholm at para. 34.