Licence Appeal Tribunal File Number: 20-006962/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:
David Oram
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
Nick de Koning, Counsel
For the Respondent:
Savneet Multani, Counsel
Bhavpreet Saini, Counsel
HEARD by Videoconference
December 6, 2021
BACKGROUND
1David Oram (“applicant”) was injured February 4, 2019 after exiting his automobile (“incident”). The applicant sought accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Aviva General Insurance (“respondent”) initially paid but later denied accident benefits.
2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
3At the case conference, the Tribunal ordered that the preliminary issue below be heard before the substantive issue below.
4The respondent’s position is that the applicant was not involved in an “accident” within the meaning of s. 3(1) of the Schedule. The applicant’s position is the opposite.
PRELIMINARY ISSUE
5The preliminary issue to be decided is:
i. Was the applicant involved in an “accident” as defined within s. 3(1) of the Schedule?
RESULT
6The applicant’s injuries sustained as a result of the incident did not result from an “accident” as defined by the Schedule. The application is dismissed.
LAW
7Section 3(1) of the Schedule defines “accident” as “an incident in which the use or operation of an automobile directly causes an impairment…”
8The onus is on the applicant to establish on a balance of probabilities that the use or operation of an automobile directly caused the applicant’s injuries.2
ANALYSIS
Was the incident an “accident”?
9For the following reasons, I find that the applicant was not involved in an “accident” as defined within s. 3(1) of the Schedule.
10The Ontario Court of Appeal established a two-part test to determine whether an incident is an “accident” as follows:3
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.
11If it can be established that the use or operation of an automobile was the cause of the injuries, then the applicant must establish that there was “no intervening act(s) that resulted in the injuries that cannot be said to be part of the course of the “ordinary course of things.”4 The question is whether it can be said that the use or operation of the automobile was a “direct cause” of the injuries.”5 Direct causation requires a determination of the “dominant factor that physically caused the applicant’s injuries”.6
12The application of this test to the facts of this case follows.
Facts Not In Dispute
13Counsel for both parties indicated that the basic facts are not in dispute. Specifically, it is agreed that the applicant was injured in the February 4, 2019 incident. At that time, the applicant in the course of his employment drove a commercial truck to a rental equipment business (“premises”), got out of his truck, left it running while he walked up to a building on the premises and then went back to his truck to retrieve a harness. After retrieving the harness from his truck, the applicant