RECONSIDERATION DECISION
Before:
Jesse A. Boyce, Vice-Chair
Licence Appeal Tribunal File Number:
21-003866/AABS
Case Name:
Thomas Fehr v. Intact Insurance Company
Written Submissions by:
For the Applicant:
Naphtali Silverman, Counsel
For the Respondent:
Megan Murphy, Counsel
Mercedes Marin, Counsel
BACKGROUND
1This request for reconsideration was filed by the respondent, Intact. It arises out of a preliminary issue decision dated February 24, 2022, in which I determined that the applicant was involved in an accident, as defined by s. 3(1) of the Schedule, when he fell from the roof of his transport truck and sustained catastrophic impairments. Intact submits that I erred in fact and law by failing to properly address the “but for” and “intervening act” tests in my analysis. It requests that the decision be varied to conclude that an accident did not occur, or that a rehearing be held.
RESULT
2Intact’s request for reconsideration is dismissed.
ANALYSIS
3The grounds for a request for reconsideration are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) (“Common Rules”). This request relies on criteria 18.2(b): that the Tribunal made errors of law and fact such that the Tribunal would likely have reached a different result had the errors not been made.
4The test for reconsideration under Rule 18.2 involves a high threshold. Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision, or the weight assigned to the evidence.
5I find that is the case here, as Intact is rearguing its case from the hearing.
There was no error of law or fact that would have changed the outcome
6The facts have remained unchanged and undisputed since the applicant sustained his impairments on April 27, 2019. To recap: at the time, the applicant was 69 years old and had regularly paid premiums to ensure access to optional benefits. On the date of the accident, to inspect the roof of his transport truck, the applicant parked the truck in a nearby parking lot and leaned a 15–20-foot ladder against its side. At some point, the ladder slid away, leaving the applicant dangling from the roof of the truck. He fell 8-10 feet to the ground, hitting a curb and falling backwards, striking his head on the ground. He stumbled home and was later found bleeding and unconscious by his son. There is no dispute the applicant sustained a significant traumatic brain injury with ongoing cognitive and emotional impairments that rise to the level of a catastrophic impairment and require ongoing in-home care and treatment. After accepting his claim, Intact paid benefits and accepted that the applicant was catastrophically impaired, entitling him to $3,000,000 in coverage as a result of his optional benefits. In response to the applicant’s home modification claim, Intact took the position—for the first time and over two years post-accident—that an accident did not occur. I released my decision finding the opposite on February 24, 2022.
7In submissions, Intact accepts that the correct two-part test for whether an accident occurred—being the purpose and causation tests from Greenhalgh v. ING Halifax Insurance Company, 2004 CanLII 21045 (ON CA) [Greenhalgh]—was properly stated. Further, while it argued at first instance that the accident did not meet the purpose test, on reconsideration, it accepts my finding that the accident satisfied the purpose test, as the use of a ladder to inspect a truck is inarguably part of the “ordinary course of things” a truck owner or operator must routinely do, given how dangerous an unsafe or improperly inspected transport truck can be to other motorists: see s. 107 of the Highway Traffic Act, R.S.O. 1990, c. H.8.
8However, despite accepting the purpose test, it now asserts that I failed to address the “but for” test regarding causation, which the Court has stated may not establish causation but can act as a useful screen. To this end, Intact submits that if I had properly applied the “but for” test, then the ladder sliding away and the applicant’s feet striking the curb would have meant that applicant’s injuries were not caused but for the accident and it may have led to a different result.
9I see no error. As Intact submits, the “but for” test acts as a useful screen before moving on to the next step and determining whether there were any intervening causes. On review, while I correctly laid out the purpose and causation tests in the “accident framework” section of my decision, I find I again specifically laid out the Court’s articulation of the causation test from North Waterloo Farmers Mutual Insurance Co v. Samad, 2018 ONSC 2143 [Samad], at paragraph 24 before delivering a finding on the “but for” screen at paragraph 25:
25Here, as I have accepted that the applicant was performing routine maintenance that constitutes ordinary use and operation of the truck, I accept that but for the applicant’s use and operation of the truck, he would not have sustained his CAT impairments. […]
10I agree with the applicant that where I clearly find that “but for the applicant’s use and operation of the truck, he would not have sustained his CAT impairments,” it is difficult to see merit in Intact’s assertion that the “but for” screen was somehow not addressed, let alone that it was an error of law that would have resulted in a different outcome. To be frank, I did not find this aspect of the causation analysis to be particularly controversial, which is why the analysis is brief in comparison to the other elements of my causation analysis. In any case, Intact’s submission that had the “but for” test been engaged it “may have led to a different outcome” is not persuasive evidence of an error that would have resulted in a different outcome where the “but for” test was addressed.
11Next, Intact submits that because the “but for” screen was not applied, that my analysis began at the wrong starting point, erroneously linked the entire accident together as a series of events and should have determined that the ladder sliding out from under the applicant was an intervening act that triggered his fall and injuries. Putting aside the fact that I addressed the “but for” test, I find I addressed Intact’s argument, including its initial stance that there were somehow “eight degrees of separation”, at paragraphs 28-29 of my decision, below. While Intact submits that I also failed to apply the test in a common sense fashion, on reconsideration, I see no reason to depart from my rationale, which mirrored the Divisional Court’s causation analysis in Samad, and find no error that would have resulted in a different outcome:
28However, I agree with the applicant that these facts cannot be isolated from the chain of events as distinct intervening acts because they all flow from the use and operation of the vehicle from the outset. The ladder was an essential component to inspect the roof of the truck, so it cannot be said that it was not part of the ordinary course of things. The inspection of the truck was ongoing when the ladder gave way, necessitating the applicant hold onto the top of the truck, which led to his eventual fall to the ground and impairments. I see no break in the chain of causation. While I accept that there may not be one dominant cause to the accident, I agree that the use or operation of the truck was clearly a direct cause of the applicant’s impairments, which is what the jurisprudence requires. This is not akin to other random events that the Tribunal has determined constitute intervening acts, such as an unprovoked assault, slipping on a sheet of ice or having an object thrown at the vehicle.
29Further, Samad provides that there is no requirement that impairments be caused by direct impact with the vehicle. While Intact attempts to isolate the applicant’s fall to the ground, impact with the curb and fall backwards as separate intervening events that break the chain, it is clear to me and uncontested that the applicant was hanging from the truck prior to his fall and therefore had direct contact with the vehicle before he fell to the ground. It is not a requirement that the applicant fall into or onto a vehicle or even come into contact with a vehicle. Rather, I find that falling from a vehicle from a significant height and sustaining impairments as a result of same clearly flows from the initial use and operation, akin to hitting the pavement after being struck as a pedestrian.
12Next, Intact asserts that the link between the applicant’s impairments and the truck was indeed “remote” and that it was a legal and factual error to not find that the ladder falling was the dominant feature of the incident. I addressed this argument in paragraph 26 of my decision and see no error that would have changed the outcome:
26I also agree with the applicant there was not one dominant feature that was the direct cause of his impairments, but rather it was the series of events that started with climbing a ladder to inspect the roof of the truck, continued with the ladder sliding away, leading to him hanging from the top of the truck and, eventually, falling to the ground and sustaining his impairments. On these uncontested facts, I see a direct causal link between the use or operation of the truck and the applicant’s impairments. To borrow from Greenhalgh, I find the applicant’s intent to perform maintenance, his use of a ladder to perform same, the ladder giving way and his eventual fall to the ground are not too remote to not be called “direct.” Indeed, I find the chain of events to be a clear line of dominoes that was tipped when the applicant began inspecting the roof of the truck, continued when he was hanging from the truck and ended when he fell to the ground and struck his head.
13Finally, even though Intact acknowledges that Tribunal decisions are not binding, it still submits that I failed to provide a contextual analysis for not following the Tribunal’s decision in Madore v. Intact Insurance Company, 2021 CanLII 53164 (ON LAT) [Madore]. First, a decision is not correct just because it came first in time and Intact did not provide any submissions to explain why it believes Madore was decided correctly. Second, as I state in paragraph 30 of my decision below, I find Intact’s reliance on Madore to be tenuous where that decision did not engage with any of the relevant jurisprudence in arriving at its conclusion and where my analysis was based on an exploration of a dozen cases that are directly on point. It appears that Intact is upset about the “lack of harmony” in Tribunal decisions because I did not follow what I consider to be a flawed line of analysis that was favourable to its position, which is not grounds for reconsideration. Third, and in any case, my decision was not made capriciously, and it is difficult to see where I failed to provide sufficient rationale to explain my departure from Madore, as alleged, where I dedicated an entire paragraph to explain that departure:
31Putting aside that Tribunal decisions are not binding on me and that all “accident” decisions are highly fact specific, I find the decisions highlighted by Intact are not particularly persuasive. First, with respect, I believe that Madore was wrongly decided where the Tribunal placed too much emphasis on the purported fact that the applicant somehow did not come into direct contact with the roof or any part of his trailer before he fell from it, despite standing on its roof. Where there is clear law that contact with a vehicle is not required, I afford the decision negligible weight because the decision does not engage with any of this jurisprudence, binding or otherwise. The result, in my view, is a scenario where the applicant was denied benefits despite sustaining impairments after falling from the roof of his trailer because he somehow did not come into contact with the very platform he fell from. I find this is not applicable here where there is no dispute that the applicant was hanging from the side of the truck.
14Accordingly, I see no errors of law or fact that would have changed the outcome of my decision that the applicant sustained catastrophic impairments as a result of an accident that occurred on April 27, 2019.
ORDER
15Intact’s request for reconsideration is dismissed.
Jesse A. Boyce
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 13, 2022