Degazio v. Bertie and Clinton Mutual Insurance Company, 2022 CanLII 127617

Degazio v. Bertie and Clinton Mutual Insurance Company 2022 ONLAT 21-008359/AABS

Licence Appeal Tribunal File Number: 21-008359/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:

John Degazio

Applicant

and

Bertie and Clinton Mutual Insurance Company

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

John Degazio, Applicant

Ernest Toomath, Counsel

For the Respondent:

Kristen M. Bailey, Counsel

Heard in Writing

OVERVIEW

1The applicant, John DeGazio, claimed entitlement to accident benefits from the respondent, Bertie and Clinton Mutual Company, arising out of an incident that occurred on May 12, 2019. The respondent refused to accept that the applicant was “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 applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUE

2The issue in dispute is:

i. Whether the applicant was involved in the accident?

RESULT

3I find that the applicant was not involved in the accident on May 12, 2019.

BACKGROUND

4On May 12, 2019 at approximately 1:30 a.m., a vehicle collided with the applicant’s vehicle which was parked in his driveway. The vehicle then hit a hydro pole and a corner of the applicant’s home. At the time of the incident, the applicant was sleeping in the living room. He heard some noises, and his dogs were barking. He got up and walked over to his bedroom, where the car was. The applicant did not see the accident occur. The applicant is arguing that he sustained serious psychological and emotional injuries as a result of the incident. The respondent disagrees with the applicant’s position.

5The onus is on the applicant to demonstrate on a balance of probabilities that he was involved in an accident. For the following reasons, I find that the applicant has not met his onus to establish that he was involved in an accident.

ANALYSIS

6The 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.

7Under s. 3(1) of the Schedule, an “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; (“personne assurée”)

8Section 2(3) of the Schedule provides that the benefits set out in the regulation shall be provided in respect of “accidents.” Section 3(1) defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment […].”

9The Ontario Court of Appeal established a two-part test to determine whether an incident is an “accident” as follows¹:

a. purpose test: did the incident arise out of the use or operation of an automobile, and

b. causation test: did the use or operation of an automobile directly cause the impairment.

10The first stage or purpose test is a determination of whether the incident involves “the ordinary and well-known activities to which automobiles are put”² said another way, for what “purpose” was the vehicle being used at the time of the incident?

11The second prong or causation test concerns whether it can be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries. In Greenhalgh, the Court also addressed “but for”, “intervening act” and “dominant feature” considerations to analyze the causation test

12The applicant submitted that he was seriously injured in a motor vehicle accident on May 12, 2019. He is of the view that he sustained serious psychological and emotional injuries as a result of the situation. The applicant submitted that “with respect to the causation issue, it is clear from a number of decisions that there need not be physical contact/striking by the vehicle and the applicant, but for the car striking the house, as it did, it would be within the Definition of [sic] Accident.”

13The respondent submitted that the applicant was not involved in an accident. It is the respondent’s position that the jurisprudence has confirmed that someone who sees or hears an accident or who is involved in the aftermath of an accident and suffers psychological issues as a result is not a person who is involved in an accident.

14In accordance with the definition of an “insured person” under s. 3(1)(a)(i), in order to be eligible for accident benefits, the applicant must establish that he was “involved” in an accident or, if he was not “involved”, he must have sustained his psychological impairment as a result of the involvement of a spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant under s. 3(1)(a)(ii).

15The applicant has not advanced any evidence that he is related to anyone who was involved in the accident. He met the driver of the vehicle when he went outside of his home to see what happened. It appears that they were unknown to one another. Therefore, the applicant cannot rely on the family exception under s.3(1)(a)(ii). I also find that he is not eligible under s.3(1)(b) and s. 3(1)(c) of the Schedule. S.3(1)(b) requires the involvement of the insured automobile. Neither party provided facts, submissions or evidence on this section and whether it applies to the applicant. Section 3(1)(c) requires that he be an occupant of the insured vehicle, which he was not.

16Therefore, I must then consider if the applicant falls under section 3(1)(a)(i), which requires him to demonstrate that he is the named insured on the policy which he claims under and that he was involved in the accident. There is no dispute that he is the named insured on the policy. I find that he satisfies the first component of the test. The next part of the analysis will determine whether he was involved in an “accident”.

17The applicant is relying on P.H. v. Aviva Insurance Company of Canada (‘P.H.’), 2020 CanLII 45493 (ON LAT), in support of his case. In P.H., a vehicle struck the house and damaged the applicant’s patio. The applicant was physically injured when the applicant fell through the space between the house and the patio. The use and operation of the car was the dominant feature of the incident that caused the applicant to fall and sustain injuries. It caused an unbroken chain of events.

18The applicant submitted that his case is directly on point with the P.H. case because the vehicle crashed through the window while he was sleeping and came within two feet from the couch he was sleeping on. As a result, he sustained serious psychological and emotional injuries. The applicant submitted that physical contact with the vehicle is not required. However, the applicant did not provide an analysis as to how P.H. applies to his case.

19In support of its case, the respondent is relying on Amiri v. Mireskandari v. Co-operators, 2021 CanLII 90414 (ON LAT)(‘Amiri’), Boyle v. Travelers Canada, 2020 CanLII 103481 (ON LAT)(‘Boyle’), Travis v. Aviva Insurance Company, 2021 CanLII 120883 (ON LAT)(‘Travis’), and Bustin v. Economical Insurance Company, 2022 CanLII 87718(ON LAT)(‘Bustin’). The respondent submitted that the jurisprudence from the Tribunal has confirmed that someone who sees or hears an accident and suffers psychological issues as a result is not a person who is involved in an accident. With respect to P.H., the respondent argued that the P.H. case involved physical injuries. Moreover, where only psychological impairments exist, an applicant has never been deemed to be involved in an accident under the current Schedule.

20The respondent directed the Tribunal to the case of Bustin. In Bustin, the applicant witnessed an accident and developed psychological injuries thereafter. Adjudicator Norris considered P.H. and distinguished it from Boyle and Amiri. He found that someone who sees or hears an accident and suffers psychological issues as a result is not a person who is involved in an accident.

21I am persuaded by the case law provided by the respondent and find that the applicant was not involved in an accident.

22In the facts before me, the applicant did not witness the accident. He was sleeping in the living room when it occurred. The vehicle went into his bedroom. He saw the aftermath of the accident. During the Examination under Oath, he stated:

And you know, everybody always says, you know, oh, that was a close one, that was a close one. Well, when -- and it was a close one. And when I went outside and I saw how close it was, it was pretty wild. But when my friend the fireman, when we looked up at that wire and it was just hanging by a couple threads, he said, "You know, if that wire would have broke," he said, "you would have fried. Everybody would have been dead in this house. "He said, “Your dogs would have been dead." “Right then my legs went rubber. Like, I, I thought, wow, I was close to almost getting run over. Well, it wasn't the run over that was even the close part-- it was getting electrocuted that was the close part.”

23While I recognize that this was a traumatic experience for the applicant, the applicant did not see the accident and was not injured in the process. The applicant’s submissions suggest that the vehicle crashed into the room that he was sleeping in. Upon review of the evidence, I find this to be inconsistent. The vehicle crashed into his bedroom and not the living room where he was sleeping.

24The majority of the case law that the applicant is relying on is not helpful. Harjinder Grewal and Dominion of Canada General Insurance Company, FSCO A03-000750 is quite and old decision and concerns a different adjudicative body and a different version of the Schedule. Moreover, it is not binding on this Tribunal. The other case law is in relation to tort law matters, which is quite different from the accident benefits context. For the reasons noted above, I have addressed why I am not persuaded by the P.H. case.

25The applicant has also submitted that the accident has caused him nervous shock. The Schedule addresses nervous shock claims in the definition in section 3(1)(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.

26This has been addressed in Amiri and Boyle, where it was noted that nervous shock claims are limited to accidents involving family members. The applicant is not permitted to make a “nervous shock” claim under his policy because he is not related to anyone involved in the accident. He would need to be related to a person involved in the accident in order to qualify as an insured person. I find that he was not.

27The purpose and causation tests are used to determine if an incident involving an insured person was an accident. The tests are unnecessary in this case because the applicant was not involved in the incident.

28As I have found that the applicant was not involved in the accident, an analysis of whether the accident meets the purpose and causation tests is unnecessary³.

CONCLUSION AND ORDER

29The applicant was not an insured person involved in the accident that occurred on May 12. 2019.

30His application is dismissed.

Footnotes

1. 1Chisholm v. Liberty Mutual Insurance Group, 2002 CanLII 45020 (ONCA); Greenhalgh v. ING-Halifax Insurance Company, 2004 CanLII 21045 (ONCA) at para 10; Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 at para 10.
2. 2Greenhalgh at para 11
3. 3See Amos 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 Halifax Insurance Co., 2004 CanLII 21045 (ON CA).