Jeff Travis v. Aviva Insurance Company, 2022 CanLII 49959

Citation: Travis v. Aviva Insurance Company, 2022 ONLAT 20-004822/AABS- AR

AMENDED RECONSIDERATION DECISION

Before: Chloe Lester, Vice-Chair

Licence Appeal Tribunal File Number: 20-004822/AABS

Case Name: Jeff Travis v. Aviva Insurance Company

Written Submissions by:

For the Applicant: Alex Voudaris Voudouris and Sherilyn Pickering, Counsel

For the Respondent: Pamela Quesnel and Mohamed Hashim, Counsel

BACKGROUND

1This request for reconsideration was filed by the applicant, Mr. Travis.

2The request arises out of the decision of Adjudicator Paluch, dated November 25, 2021, in which the Tribunal found that the incident the applicant was involved in, a firefighter responding to the scene of the Toronto van attack, was not considered an accident for the purpose of receiving benefits under the Schedule.¹

3Mr. Travis seeks reconsideration under Rule 18.2 (b) of the Rules². He argues that the Tribunal made 6 errors of law or fact such that the Tribunal would have reached a different result had the error not been made.

4Mr. Travis is seeking an order varying the Tribunal’s decision and a finding that he was involved in an accident.

RESULT

5Mr. Travis’ request for reconsideration is denied.

THE LAW

6For an incident to be categorized as an accident, in this case, the insured must prove that he was involved in an incident in which the use or operation of an automobile directly causes an impairment.³

7In Greenhalgh v. ING Halifax Insurance Co. (“Greenhalgh”) the Ontario Court of Appeal reviewed the case law and determined that in order to satisfy the definition of an “accident” under the Schedule an insured must meet the purpose test as set out in Amos⁴ and the causation test as set out in Chisholm⁵.

8This test was adopted and amended to meet the Schedule’s current and more narrow definition.⁶ The applicant must now satisfy the following questions:

a. Purpose test: Did the accident result from the ordinary and well-known activities to which automobiles are put?

b. Causation test: Was the use or operation of the vehicle a cause of the injuries? If the use or operation of the vehicle was the cause of the injuries, was there an intervening act or acts that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” In that sense, can it be said that the use or operation of the vehicle was a “direct cause” of the applicant’s injuries?

9In establishing the causation test, the case law considers additional questions to aid in defining whether the incident meets the causation test. For example, the “but for” test is used to screen out inconsequential details that could not have accounted for the injuries and the “dominant feature” test is used for determining the dominant cause of the injuries.

THE INCIDENT AND THE DECISION

10At the hearing, Mr. Travis argued that his presence on the scene of the horrific terrorist attack commonly referred to in the media as the “Toronto van attack” met the definition of an accident.

11Adjudicator Paluch characterized the questions that must be answered during the hearing in the following ways:

a. Ryder van - First, was the applicant’s involvement in the Toronto van attack and seeing the carnage resulting in the use and operation of the Ryder van, which directly caused the applicant’s psychological impairments, an accident?

b. Fire truck - Second, was the applicant’s use and operation of the fire truck while hearing the frantic dispatch calls as he drove, nearly striking the Ryder van, arriving at the site of chaos and carnage, moving the truck to attend to people, and using the truck to guard the scene while observing dead bodies an accident?

12Adjudicator Paluch found that the use and operation of the Ryder van did not meet the purpose and causation test whereas the use and operation of the fire truck met the purpose test but not the causation test.

ANALYSIS

13The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Rules. A request for reconsideration will not be granted unless Mr. Travis can show that the decision contained an error of law or fact that would have led to a different result had the error not been made. This is a two-part test, not only does Mr. Travis has to demonstrate that an error has occurred, but the error would have led to a different conclusion. Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome. A request for reconsideration is not an opportunity to try other legal arguments that were not first argued at the hearing or a way to alter the submissions presented at the hearing to receive a second chance for the same arguments.

Whether Adjudicator Paluch erred in adding non-existent terms to the issue before the Tribunal and the definition of accident in the Schedule

14Mr. Travis argues that Adjudicator Paluch altered the wording before him and added a term that simply did not exist in the definition of an accident. He argues that in paragraph 9 of Adjudicator Paluch’s decision he adds to the inquiry by framing the test as follows: “Whether the applicant was an insured who was involved in an “accident” as that term is defined in s. 3(1) of the Schedule?”

15The respondent, Aviva Insurance Company (“Aviva”), disagrees and argues that the word “insured” is a quintessential part of the analysis. Aviva further argues that since Mr. Travis did not satisfy the definition of an “insured” person under 3(1)(a)(ii) of the Schedule, Adjudicator Paluch’s analysis must center around whether the “insured” was involved in an accident.

16Mr. Travis’ submissions did not contain any arguments surrounding how this alleged error would have led to a different conclusion. In a review of the decision, Adjudicator Paluch did not center his decision around the word “insured” or whether it had any bearing on how the incident was not considered an accident. Adjudicator Paluch’s decision focused on whether the use or operation of the Ryder van and/or the fire truck directly caused the psychological impairments of Mr. Travis.

17In my opinion, since Mr. Travis did not make submissions to explain how this error would have changed the conclusion is the primary reason why this argument has failed. Even if there was an error, it was not central to Adjudicator Paluch’s analysis and would have not made a difference. The Adjudicator’s analysis did not utilize the word “insured” in its reasons for his conclusion that both the Ryder van and fire truck did not directly cause Mr. Travis’ impairments.

Whether Adjudicator Paluch erred in ruling that the use or operation of the Ryder van did not meet the Purpose Test; Whether Adjudicator Paluch erred in not following binding precedent in this regard

18Mr. Travis argues that Adjudicator Paluch erred by concluding that the Ryder van did not meet the purpose test because it was being used as a weapon. He argues that Adjudicator Paluch erred in not following binding precedent that rules injured victims from a vehicle being used as a weapon or with an intent to commit suicide are still entitled to benefits under the Schedule. Mr. Travis argues that Adjudicator Paluch incorrectly relied on the common meaning of the word “accident” instead of the legal definition as outlined in Vijeyekumar v. Statefarm⁷, which also relied on the established tests in Amos. He submits that in paragraphs 13, 64 and 66, the Adjudicator in his decision kept on reiterating that Mr. Travis was on the scene after the accident occurred, somehow lumping everything that had occurred into one singular incident that ended just before Mr. Travis’ physically arrived on the scene. Mr. Travis claims that if the Adjudicator had used the legal definition of the word “accident”, which includes intentional and unintentional occurrences, then he would have reached a different conclusion. Mr. Travis claims that Adjudicator Paluch spent a considerable amount of time discussing Whipple v. Economical⁸ decision in respect of the Ryder van when that decision was being relied upon for its conclusions in the context of the fire truck. Mr. Travis submits that the Adjudicator erred in not finding the Ryder truck met the purpose test. The vehicle was being driven and in use. The fact that it was being used as a weapon was immaterial to the enquiry.

19Aviva argues that even though Vijeyekumar determined the word “incident” extended the meaning of “accident” to intentional occurrences such as suicide should have no bearing on this decision since it does not involve the same facts. In that case, Aviva argues the insurance company conceded to the fact that it would pay benefits if the incident was considered murder, it was on that basis that the higher courts determined that suicide was no different than murder and determined it was an accident.

20In his decision, Adjudicator Paluch reasoned in paragraphs 46-49 why the Ryder van did not meet the purpose test, which was that the Ryder van was not being used or operated in the manner for which a vehicle was intended, to transport people and things. In reviewing the decisions relied upon by the parties, there may have been an error in the decision regarding whether the Ryder van met the purpose test. In this case and based on the case law, the intent of why the vehicle was being driven should not have been considered. From the perspective of the victims, the Ryder van was being operated in the manner it was intended. It was being driven. In the end, that potential error would not have changed the result of the decision because Adjudicator Paluch also found, and I agree, that the causation test was not met.

21Regarding, Mr. Travis’ submissions on “lumping” everything together. The Adjudicator contextualized the incident as to when the impairments occurred. In this case, Mr. Travis’ impairments began after the Toronto van attack. So, the analysis must begin there to see whether the use or operation of a vehicle had a direct impact on the impairments. I see no error in how the incident was portrayed.

Whether Adjudicator Paluch erred in ruling that the use or operation of the Ryder van did not meet the causation test and was not the cause of Mr. Travis’ impairments

22Mr. Travis argues that the adjudicator erred in paragraphs 51 and 52 of his decision by deciding that the psychiatric injuries occurred after the vehicle stopped being used. Mr. Travis argues that the adjudicator failed to acknowledge that the psychiatric injuries began while he was driving the fire truck while listening to dispatch describe what would be an unprecedented incident. He also argues that the psychological impairments also stemmed from the near-collision with the Ryder van when it illegally crossed the intersection in front of him.

23Aviva argues that the allegations by Mr. Travis that his impairments began while he was driving his fire truck are not what the evidence suggests. Aviva argues the psychological impairments began, as described by neuropsychologist Dr. Feinstein, from exposure to the victims of the Toronto van attack.

24In comparing Dr. Feinstein’s report to the examination under oath, there is no evidence to suggest the impairments began while Mr. Travis was driving the fire truck and while the Ryder van was operational. The report of Dr. Feinstein repeatedly attributes the cause of the psychological impairments to the exposure of the victims of the attack.

25Adjudicator Paluch found that the use or operation could not have directly caused the impairments. He found that the Ryder van was no longer in use and operational by the time Mr. Travis arrived on the scene and therefore he could not have met the causation test. I see no error in the facts of the evidence or how the facts were applied to the law.

26Mr. Travis argues that Adjudicator Paluch ought to have relied on the Court of Appeal Chisholm⁹ decision whereby the applicant met the causation test based on the embedded “but for” test. But for the use or operation of the vehicle, Mr. Chisholm would not have been shot. Also relying on the Greenhalgh¹⁰ decision, Mr. Travis argues that a chain of events led to the abandonment of a non-operational vehicle that subsequently led to significant physical impairments and meeting the “but for” test. Mr. Travis argues that even if most of his impairments stemmed after the Ryder van was parked, he still meets the “but for” test. But for the use or operation of the Ryder van, Mr. Travis would not have seen the carnage.

27Aviva argues that the points brought out in Chisholm and Greenhalgh have been addressed by the Adjudicator in his decision. The vehicle must directly contribute toward causing the impairments.

28Adjudicator Paluch did not address these decisions in relation to his reasons for why the Ryder van did not meet the causation test. To that end, as noted by Aviva, the adjudicator is not obligated to mention every submission in his decision. As written in Chisholm, the purpose of the “but for” test is to eliminate factually irrelevant scenarios for determining the root cause of the impairments. In this case, the root cause of the impairments was exposure to the horrific scene Mr. Travis saw. Even if the adjudicator had reasoned his findings using Greenhalgh and Chisholm in his decision for the explanation of the causation test, I fail to see how it would lead to any other conclusion already expressed by Adjudicator Paluch. As discussed above, the “but for” test is only used as an aid in determining the causation test. Meeting the “but for” test does not automatically mean that the causation test is met. Even though Adjudicator Paluch’s decision does not detail the Greenhalgh and Chisholm decision, it adopts the reasoning in P.F.¹¹ which explains the purpose of those tests and how the incident does not meet the test. Adjudicator Paluch viewed this incident as very similar to the facts in P.F. He agreed with the reasons in P.F. and found them supportive of his conclusions and how he viewed the incident.

29Also, the “but for” test and “dominant feature” test is used to determine whether the incident meets the causation test. In my opinion, there was no need to go into great detail on these tests because it was already decided that the impairments could not have been directly caused by the use or operation of the vehicle. In paragraphs 51 and 52, the Adjudicator relied heavily on the same reasons as outlined in P.F.¹² that “when a vehicle ceases being used as automobiles; we cannot expect the insurance companies to provide coverage”.

30Even if the Ryder van was still operational or in use at the time Mr. Travis arrived on the scene, the vehicle must be a direct cause of the impairments. Since the impairments began after he attended the scene, and as outlined in the medical report and EUO, it was a result of seeing the distressing scene of the victims of the Toronto van attack. At most, Mr. Travis’ impairments might be viewed as an “indirect” result of the use or operation of a vehicle; indirect impairments are no longer covered by the Schedule.

Whether Adjudicator Paluch erred in ruling the use or operation of the fire truck did not meet the causation test. Adjudicator Paluch erred in misconstruing and misapplying the “but for” test.

31Mr. Travis argues that Adjudicator Paluch erred in his application of the “but for” test when he reasoned in paragraph 62 of his decision, that “if you removed the fire truck from the equation, the applicant would still have been exposed to the aftermath of the terrorist attack”. Mr. Travis argues that if it was not for the fire truck he would have been at the Firehall and not have heard dispatch describe a horrific event, avoid a collision with the Ryder van and witness the horrific scene. Mr. Travis argues that since Adjudicator Paluch reasoned that in paragraphs 57 and 66 the fire truck may have contributed to Mr. Travis’ injuries, it was incumbent on the adjudicator to continue his analysis in determining whether there was an intervening act.

32Aviva argues that driving the fire truck was merely incidental to Mr. Travis’ job. It argues that the adjudicator removed the fire truck from his analysis to determine whether the impairments were caused by its direct use or operation of it.

33I find Adjudicator Paluch provided sufficient reasons in his decision to explain why the fire truck did not cause Mr. Travis’ impairments. He explains in paragraphs 58-69 that even though Mr. Travis operated the fire truck to the scene of the terrorist attack and several times thereafter, based on the evidence, the psychological impairments were not a direct result of the use and operation of the fire truck. Adjudicator Paluch relied on case law to explain that the mere location and proximity of a vehicle to the location of the impairments does not necessarily result in an accident occurring. In this case, the impairments were linked to the exposure to the victims. I see no error in how the adjudicator analyzed his decision.

Whether Adjudicator Paluch erred in ruling that both the Ryder van and fire truck did not meet the “Dominant Feature” test and failed to conduct an analysis regarding the issue of remoteness

34Mr. Travis argues that Adjudicator Paluch failed to assess the issue of remoteness in deciding the “dominant feature” test. He argues that the Adjudicator did not rely on the decisions of Chisholm¹³ and Greenhalgh¹⁴ in deciding whether the use or operation of the vehicle was “too remote” to be considered a dominant feature of the impairments. He argues that the dominant feature test is likened to a row of dominos falling without an intervening act that eventually results in the impairments stemming from the use or operation of a vehicle. In this case, Mr. Travis argues that the first domino was the Ryder van hitting several pedestrians resulting in the carnage that was eventually witnessed by him. Mr. Travis argues that these facts are similar to the ones in Petrosoniak¹⁵ whereby a cyclist was injured from hydraulic fluid leaking from a vehicle. He argues that this is one of many examples where the vehicle had left the scene or stopped being actively used and still resulted in direct impairments making it an accident.

35Aviva failed to provide submissions on this point.

36Although the “dominant feature” was not reasoned in the analysis of the Ryder van causation test, I find there was no need to. Although not expressed in the initial paragraphs regarding the causation test for the Ryder van, Adjudicator Paluch goes into detail analyzing the dominant feature test in connection with the fire truck. Many, if not, all the reasons provided in paragraphs 62-67 apply to the same reasoning for the Ryder van. In Greenhalgh, the Ontario Court of Appeal suggested that in some cases, “it may be useful to ask if the use or operation of the automobile was the dominant feature of the accident; if not, the link between the use and operation and the impairment may be too remote to be called "direct". You want to consider the features of the situation that most directly caused the injuries.” Adjudicator Paluch explains that there must be a direct causal link between the impairments and the use and operation of the vehicle. In this case, there is none. The mere fact that he does not analyze the remoteness of the vehicles does not impact the root cause of the impairments being the aftermath of a horrific incident. I see no error.

Whether Adjudicator Paluch erred by applying the law differently to psychiatric impairments as compared to physical impairments

37Mr. Travis argues that in paragraphs 71 and 72 of Adjudicator Paluch’s decision he distinguishes the two decisions, Cooper¹⁶ and Souchuk¹⁷, on the basis that the injured parties suffered physical injuries and not psychological ones. Mr. Travis argues that the practice of distinguishing between the two impairments is a violation of the principles and values of the Charter.

38Aviva argues that if Mr. Travis raises a constitutional question, he ought to follow the requirements set under Rule 11 of the Rules. Aviva argues that the type of injuries was not a distinguishing factor made by Adjudicator Paluch but that it was the facts of the incident that deemed it an accident.

39I agree with Aviva’s position. Paragraphs 71 and 72 in no way distinguished the cases based on the type of impairments but how the accident occurred and the factors that made the incident into an accident. These are fact-specific cases and Adjudicator Paluch found no correlation between this case and the decisions presented. I find no error has occurred.

CONCLUSION

40For the reasons noted above, I deny Mr. Travis’ request for reconsideration.

Chloe Lester

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 as amended. (“Schedule”)
2. 2Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”)
3. 3S.3.1 of the Schedule definition of an accident.
4. 4Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 SCR 405 (“Amos”)
5. 5Chisholm v. Liberty Mutual Group, (2002) 2002 CanLII 45020 (ON CA), 60 O.R. (3d) 776 (ON CA) (“Chisholm”)
6. 6Chisholm, Greenhalgh, Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (“Caughy”), Downer v. The Personal Insurance Company 2012 ONCA 302, Martin et al. v. 2064324 Ontario Inc. c.o.b. as Freeze Night Club et al., 2013 ONCA 19
7. 7Vijeyekumar v. State Farm Mutual Automobile Insurance Company, 1999 CanLII 1640 (ON CA) (“Vijeyekumar”)
8. 8Whipple v. Economical Mutual Insurance Co., 2011 Carswell Ont 11739
9. 9Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA)
10. 10Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA)
11. 11P.F. v Economical Mutual Insurance Company, 2019 CanLII 119747 (ON LAT) (“P.F.”)
12. 12P.F. v. Economical Mutual Insurance Company, 2020 CanLII 19569 (ON LAT). (“P.F.”)
13. 13Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA)
14. 14Greenhalgh v. ING Halifax Insurance Co., 2004 CanLII 21045 (ON CA)
15. 15Petrosoniak v Security National Insurance Co., 1998 CarswellOnt 6227
16. 16Cooper v Wawanesa Mutual Insurance, 2008 ONFSCDRS 180, [2008] 68 CCLI (4th) 149, 2008 CarswellOnt 7340
17. 17Souchuk v State Farm Mutual Automobile Insurance Co., [2004] OFSCD No 4, 2004 CarswellOnt 6039