RECONSIDERATION DECISION
Before:
Brian Norris, Adjudicator
September 20, 2021
Tribunal File Number:
20-003296/AABS
Case Name:
Fariba Amiri & Ensieh Mireskandari v. The Co-operators
Written Submissions by:
For the Applicant:
Gordon W. Harris, Counsel
For the Respondent:
Emily A. Schatzker, Counsel
OVERVIEW
1This request for reconsideration was filed by the Applicants in this matter. It arises out of a decision in which I found that they were not involved in an accident and therefore, were not entitled to claim benefits from the Respondent.
2The Applicants are seeking an order to vary the decision and make a finding that they are entitled to accident benefits as “nervous shock claimants.”
RESULT
3The Applicants’ request for reconsideration is dismissed.
BACKGROUND
4The Applicants were out for a walk with their respective spouses when one member of their group, a close relative to everyone present, was struck by a vehicle, and sustained serious injuries. The vehicle made no contact with the Applicants during the traumatic event, but one Applicant witnessed the accident and the other witnessed the immediate aftermath. The Applicants sustained no physical injury but claim nervous shock as a result of the accident. They had no auto insurance policy of their own and claimed entitlement to benefits through the Respondent, which is the driver’s insurance carrier.
5The Respondent refused to accept the Applicants’ claims on the basis that the Applicants were not covered by the insurance policy. The Respondent’s position is that the Applicants were not “insured persons” pursuant to section 3 of the Schedule.
6In my decision, I agreed with the Respondent and found that the Applicants were not entitled to benefits because they failed to qualify as “insured persons” pursuant to section 3 of the Schedule.
ANALYSIS
7The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been previously by the party now seeking to introduce it and would likely have affected the result.
8The Applicants rely on Rule 18.2(b), submitting that I erred in law or fact by failing to recognize the broad, consumer-protecting threshold of section 3(1) of the Schedule. They submit that neither the Schedule nor the jurisprudence before me mandated that involvement is established only by physical injury or contact. They submit that the suddenness of the collision witnessed by the Applicants constitutes one event. They submit that I failed to “recognize the distinction between psychological injuries of family members accruing over time, and individuals suffering from nervous shock from immediate involvement at the scene of an accident.” They submit that they suffered nervous shock from what they witnessed, immediately experiencing a jarring psychiatric blow. To them, the speed at which all injuries transpired establish direct involvement of the Applicants under the definition (b) of “insured person” found in section 3(1).
9The Respondent submits that no error of law occurred, and the decision should stand. It submits that the Schedule does not provide benefits for all claims, and that I followed the established jurisprudence. It further submits that the Applicants’ interpretation of “involved” would greatly broaden the potential scope of claimants in a manner not intended by the legislature and opens the door to countless onlooker claims.
10I find no error of law which would likely have reached a different decision had the error not been made.
11The Schedule enables an “insured person” to claim accident benefits if they are injured in a motor vehicle accident. Under section 3(1) of the Schedule, definition (b) of “insured person” is, in respect of a particular motor vehicle liability policy, a person who is involved in an accident involving the insured automobile, if the accident occurs in Ontario.
12As noted in the initial decision, the Applicants put forward jurisprudence that all involved physical injuries resulting from the chain of events directly stemming from an accident. However, the Applicants in this matter claim non-physical injuries, which they characterize as nervous shock claims. I found their situation to be remarkably similar to Boyle v. Travelers Canada (“Boyle”).1
13Boyle concluded that nervous shock injury claims made pursuant to the Schedule are limited to family members of the named insured. I see no error of law in my application of Boyle for the following reasons.
14The Applicants have no relation to the named insured and, despite sustaining nervous shock as they claim, are not entitled to claim accident benefits from the Respondent, as unfortunate as the result may be. The Applicants’ involvement in the accident was limited to their proximity and relationship with the person who was struck by the vehicle. They were not occupants of the vehicle and the vehicle never made contact with them or caused anything to come into contact with them. Their claim is based solely on nervous shock and as noted in Boyle, such claims are limited to the named insured and their family members.
15The Applicants provide no reason why the term “involved in an accident” should include nervous shock claims, when such claims are addressed in definition (a)(ii) of an “insured person” found in section 3(1). Thus, I remain convinced that Boyle prevails over the Applicants’ submissions and jurisprudence. The Applicants submit Boyle is incorrect because it contravenes the broad scope of the Schedule by necessitating that involvement in an accident be solely physical, unless the injured party is a family member of the named insured. Yet, this argument fails to appreciate that the Schedule addresses nervous shock claims in definition (a)(ii) of “insured person”. That section limits benefits to:
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.
16The purpose of definition (a)(ii) of “insured person” is to address, and limit, claims like those made by the Applicants to the named insured, a specified driver, or family members of the named insured. The Applicants fall in neither category. Definition (a)(ii) would hold no purpose if definition (b) is applied so broadly as to include the Applicants’ nervous shock claims. It is principle of statutory interpretation that the legislature is presumed not to legislate in vain. Further, as submitted by the Respondent, such a broad interpretation would open the door to countless onlooker claims. Instead, such claims are restricted by operation of definition (a)(ii).
CONCLUSION
17Upon review of my application of the law and jurisprudence, I see no error of law such that the Tribunal would likely have reached a different decision had the error not been made. For this reason, I deny the Applicants’ request for reconsideration.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Date of Issue: September 20, 2021