Amiri and Mireskandari v. The Co-operators, 2021 CanLII 45657

Citation: Amiri and Mireskandari v. The Co-operators, 2021 ONLAT 20-003296/AABS & 20-003319/AABS

Release date: 05/28/2021

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:

Fariba Amiri and Ensieh Mireskandari

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Brian Norris, Adjudicator

APPEARANCES:

For the Applicant:

Gordon W. Harris, Counsel

For the Respondent:

Emily A. Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicants, Fariba Amiri (“Amiri”) and Ensieh Mireskandari (“Mireskandari”), claimed entitlement to accident benefits from the respondent, Co-operators General Insurance Company, arising out of an incident that occurred on December 19, 2017. The respondent refused to accept that the applicants were “involved” in the accident as it is defined in the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The applicants applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUE

2The issues in dispute are:

(a) Whether the applicants were involved in the accident? and

(b) Whether the applicants are entitled to claim benefits as relatives of a named insured?

RESULT

3The applicants were not involved in the accident and they are not entitled to claim benefits as relatives of a named insured.

BACKGROUND

4The applicants were walking together with their spouses on a December evening when a car struck Abbas Hasemi-Vazeri (“Hasemi-Vazeri”), the spouse of Mireskandari, and father-in-law of Amiri. The accident occurred only a few feet in front of Amiri, and Mireskandari heard the collision and witnessed the immediate aftermath. Hasemi-Vazeri sustained serious injuries as a result of the vehicle-on-pedestrian collision and was taken to hospital by ambulance.

5The applicant’s claim that they suffer from psychological injuries as a result of their involvement in the collision and seek entitlement to accident benefits. They have no accident benefit policy of their own. Their claims for benefits are made pursuant to the policy of the insured driver who struck Hasemi-Vazeri.

6The respondent’s position is that the applicants are not entitled to accident benefits because they were not “involved” in the accident and thus, fail to meet the definition of an insured person, according to section 3 of the Schedule.

ANALYSIS

7The Schedule provides that insurers are liable to pay certain benefits to, or on behalf of, insured persons who sustain an impairment as a result of the use or operation of an automobile.

8Pursuant to section 3 of the Schedule, “insured person” means, in respect of a particular motor vehicle liability policy,

(a) the named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of the named insured and a dependant of the named insured or of his or her spouse,

(i) if the named insured, specified driver, spouse or dependant is involved in an accident in or outside Ontario that involves the insured automobile or another automobile, or

(ii) if the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant,

(b) a person who is involved in an accident involving the insured automobile, if the accident occurs in Ontario, or

(c) a person who is an occupant of the insured automobile and who is a resident of Ontario or was a resident of Ontario at any time during the 60 days before the accident, if the accident occurs outside Ontario.

9The parties agree and accept that Hasemi-Vazeri, the person struck by the vehicle, was involved in the accident and qualifies as an insured person pursuant to subsection (b), above.

10The applicants are not named on the policy through which they claim. They have no relation to the driver and were not occupants of the insured automobile. Thus, they fail to qualify under subsections (a) and (c), above.

11Truly at issue, then, is whether the applicants were “involved in the accident” and thus, would qualify as “insured person(s)” pursuant to subsection (b).

12The applicants submit that “involved in an accident” is not a defined term in the Schedule and that it is vague and dependant on the facts of each case. They submit that involvement depends upon some proximity in place and time and participation between a person and an event or activity. They also submit that it depends on whether the incident involved the use or operation of an automobile and whether the automobile directly caused an impairment. The applicant relies on Janousek v. Halifax Insurance Co. which stated that “the plain or ordinary meaning of the word “involve” is quite broad” and that “contact between the insured person or the automobile that caused the injury and the incurred automobile may not be necessary.”¹

13The respondent submits that Areal v. Liberty² is more appropriate than Janousek v. Halifax. This is because Areal v. Liberty involved a priority dispute which, ultimately, found that parked cars at the scene of a collision that were incidentally impacted were not involved in an accident. It submits that neither applicant had a part in or actively participated in the collision between the insured auto and the injured person.

14To the applicants, the plain and ordinary meaning of “involve” includes witnessing it or the immediate aftermath. They submit that the psychological impact of witnessing the traumatic event or the immediate aftermath and their involvement in the accident cannot be contested. They submit that theirs are valid “nervous shock” claims because they directly saw or heard the collision and the immediate aftermath and, according to them, sustained psychological injuries as a result. They further submit that there is no time limit on when psychological injuries can manifest, and such claims may be submitted years after the accident. According to the applicants, the written stated purpose of subsection 3.1(a)(ii) of the Schedule is to protect persons who are not involved in an accident but who are suffering from mental health issues caused by it. To them, the term “directly causes” requires no physical contact. They believe the accident directly caused their psychological injuries because there is no break in the chain of causation - they saw the accident or came upon it immediately after and sustained psychological injuries as a result.

15The applicant submits that this meets the accident test in both purpose and causation³. The applicants refer to P.H. v. Aviva⁴, where a vehicle struck a house, dislodging the deck attached to it, and the applicant was injured when she went to investigate the commotion and fell through the gap in the deck. They also refer to Shah v. Primmum Insurance Co.⁵ and Grewal v. Dominion of Canada General Insurance Co.⁶ In those cases, the applicants physically injured themselves while rushing to the scene of an accident involving a loved-one. The applicants submit that, like the cases above, there is no intervening act here.

16In response, the respondent submits that the applicants must make their “nervous shock” claims under their own policy, but unfortunately, they do not have one. It submits that Boyle v. Travelers Canada⁷ (“Boyle”) considered nervous shock claims and correctly found that they were restricted to those related to the policy holder and those who were involved in and suffered an impairment directly from the use or operation of the vehicle. Lastly, it submits that the Schedule does not provide unlimited benefits to everyone and that witnessing an accident does not mean “involved” because this would broaden the scope of accident benefit claims immensely.⁸

17I agree with the respondent and find that the applicants were not involved in the accident and thus, they fail to qualify for the benefits claimed.

18While it was likely a very traumatic event, the applicants’ involvement in the accident is limited to their proximity and relationship to Hasemi-Vazeri only. They were not struck by the insured vehicle and they were not in a vehicle that was part of the accident. Nor were the applicants injured as part of a sequence of events stemming from an accident. Here, one applicant witnessed the accident at close range and the immediate aftermath. The other applicant heard the accident and witnessed the immediate aftermath.

19I find that this case is different than the ones presented by the applicants. The cases cited above refer to physical injuries resulting from the chain of events directly stemming from an accident. Whereas here the applicants’ sustained only psychological injuries from witnessing the accident and its aftermath.

20I agree with the respondent and find that Boyle is the most relevant jurisprudence on the issue. In that case, the applicant claimed entitlement to accident benefits following the development of psychological injuries after witnessing an accident and rushing to the scene to help the injured person, who eventually died as a result of the accident. Relevant to this case, the applicant was found to be involved in the aftermath and not in the accident. I further agree with Boyle in that the Schedule contemplates nervous shock claims, but that section 3(1)(a)(ii) limits entitlement for those claims to accidents involving family members. Here, the applicants are not named on an auto insurance policy and thus, are not entitled to make a “nervous shock” claim under that provision.

Did the applicants sustain impairments as a result of the accident?

21The parties dispute whether the applicants sustained impairments as a result of the accident. I have found that they were not involved in an accident and thus, fail to qualify for the benefits claimed. Considering this, an analysis on whether the applicants sustained impairments as a result of the accident is unnecessary.

CONCLUSION

22I find that the applicants witnessed the accident but were not involved in an accident as defined by the Schedule. They are not listed on an auto insurance policy, have no relation to the driver, and were not occupants of the insured automobile. Therefore, they are not entitled to any benefits from the respondent and, as a result, their applications are dismissed.

Footnotes

1. 1Janousek v. Halifax Insurance Co., 1998 CarswellOnt 281 (Ont. Insurance Comm.)
2. 2Areal v. Liberty Insurance, 2004 CarswellOnt 4180
3. 3Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405; Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ON CA); and Greenhalgh v. ING
4. 4P.H. vs. Aviva Insurance Company of Canada, 2020 ONLAT 18-010205/AABS
5. 5Shah v. Primmum Insurance Co., 2014 CarswellOnt 9715
6. 6Grewal v. Dominion of Canada General Insurance Co., [2003]
7. 7Boyle v. Travelers Canada, 2020 CanLII 103481
8. 8See 18-001020 v. Wawanesa, 2018 CanLII 83527, at para 39