Citation: Bustin v. Economical Insurance Company, 2022 ONLAT 20-007017/AABS

Licence Appeal Tribunal File Number: 20-007017/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:

Daniel Bustin

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Piera A. Segreto, Counsel

For the Respondent:

Monika Bolejszo, Counsel

HEARD: In Writing

OVERVIEW

1Daniel Bustin, (“the Applicant”), witnessed an automobile accident on October 13, 2019, and sought benefits from Economical Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The Applicant was denied benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUES

2The preliminary issue to be decided in the hearing is:

a. Was the applicant involved in an accident on October 13, 2019?

ISSUES

3The substantive issues to be decided in the hearing are:

a. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 11, 2019 to date and ongoing?

b. Is the applicant entitled to $2,200 for a psychological assessment, proposed by Dr. Bodenstein in a treatment plan dated November 22, 2019?

c. Is the applicant entitled to $120 for the preparation of a Disability Certificate?

d. Is the applicant entitled to $2,593.76 for psychological services proposed by Dr. Bodenstein in a treatment plan dated January 29, 2021?

e. Is the applicant entitled to $2,643.76 for psychological services proposed by Dr. Bodenstein in a treatment plan dated May 28, 2020?

f. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

g. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the Applicant was not involved in an accident on October 13, 2019.

BACKGROUND

5Two cars collided in a tremendous impact which led to the death of two occupants. The collision occurred outside of the home of the Applicant’s aunt, whom he was visiting at the time for a holiday celebration. The accounts of the accident vary slightly in the evidence, but it appears that the Applicant was on the porch at the time of the accident and heard a loud noise accompanied with the floor shaking. The Applicant looked towards the road following the noise and vibration and witnessed two cars rolling apart from each other. The Applicant remained on the front porch of the house and watched the situation unfold. He witnessed one driver exit a vehicle independently, but the two occupants of the other vehicle died as a result of the collision. The Applicant submits that he saw the pair extracted from their vehicle, laid them on the ground, and covered with a white tarp or cloth.

6The Applicant claims that, by witnessing the incident and developing psychological injuries thereafter, he was involved in it and thus, is entitled to certain accident benefits. The Respondent submits that the Applicant was not involved in the accident and thus, is not entitled to accident benefits.

7The 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

8Pursuant to s. 3(1) of the Schedule, “insured person” means:

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.

9Criteria 2 and 3 are not applicable in this situation. Criterion 2 requires the involvement of the insured automobile, which is not applicable in this situation. Likewise, criterion 3 requires the injured person to be an occupant of the insured vehicle, which is also not applicable in this situation because the Applicant was not inside a vehicle involved in the accident.

10Criterion 1(ii) is not appliable. This criterion is reserved for insured persons who suffer psychological injuries as a result of a physical injury to a spouse, child, grandchild, parent, grandparent, brother, sister, dependent, or spouse’s dependent. There is no evidence which suggests that the Applicant had any such relation to the occupants of either vehicle.

11At issue is whether the Applicant falls under criteria 1(i). For this to occur, the Applicant must 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 disputing that the Applicant is the named insured on the policy and satisfies the first component of this test. This hearing turns on whether the Applicant was “involved” in the accident.

12The Applicant submits that “involved” should be read broadly to include witnessing the accident and the aftermath. He submits that physical contact with the vehicle is not a requirement, as noted in P.H. v Aviva Insurance Company of Canada, and that witnessing the accident was the direct cause of his psychological injuries¹. In that case, a vehicle struck a house, damaged a deck attached to it, and the insured person was injured when she stepped on the damaged deck while investigating the commotion. It was determined that the Applicant in that case was “involved” in an accident because the unbroken chain of events led to her investigating the commotion and injuring herself on the damaged deck.

13The Respondent submits that the jurisprudence confirms that someone who sees or hears an accident and suffers psychological issues as a result, is not a person who is involved in the accident. I agree.

14The prevailing cases are Boyle v. Travelers Canada, 2020 ONLAT 19-014423/AABS (“Boyle”) and Amiri and Mireskandari v. The Co-operators, 2021 ONLAT 20-003296/AABS (“Amiri v. Co-operators).

15In Boyle, the Applicant heard a vehicle versus pedestrian accident and rushed towards the scene to help the pedestrian, who died of accident-related injuries. There, coverage was denied because the Applicant was not involved in the accident and because his psychological impairment was not as a result of the accident. The determination that the Applicant was not involved in the accident was because the Applicant was not an occupant of the vehicle, not entering or exiting the vehicle, not struck by the vehicle, and did not witness the initial impact of the accident. Thus, the Applicant’s involvement with the accident was after it occurred, when he saw the accident victim and attempted to provide aid. The arbitrator determined that the Applicant’s psychological injuries were not as a result of the accident, but due to witnessing the victims suffering. Boyle also briefly addressed “nervous shock” claims and noted that they were contemplated by the legislation but limited to accidents involving family members.

16In Amiri v. Co-operators, it was determined that the Applicants were not involved in an accident, despite one of the Applicant’s witnessing it first-hand, and the other hearing it and witnessing the aftermath. The Applicant’s involvement in the accident was limited to their proximity to the accident scene and relationship with the injured party. They were not struck by the vehicle, not in a vehicle that was part of the accident, and were not physically injured as a part of a sequence of events stemming from the accident. Amiri addressed the application of “nervous shock” claims and noted that they are limited to accidents involving family members. If the claimants in Amiri had their own insurance policy, they would qualify pursuant to criterion 1(ii), because they were related to the accident victim.

17As in Amiri, I find that the Applicant was not involved in the accident despite witnessing it. The Applicant was not an occupant in either of the vehicles involved in the accident, he was not struck by either vehicle, and he was not attempting to enter or exit either vehicle. Instead, the Applicant witnessed the accident and/or the immediate aftermath. I find that witnessing an event is not the same as being involved in an event.

18The Applicant is not permitted to make a “nervous shock” claim under his policy because he is not related to anyone involved in the accident. As noted previously, criterion 1(ii) requires the Applicant to be related to a person involved in the accident in order to qualify as an insured person.

19Considering that the Applicant was not involved in the accident, an analysis of whether the accident meets the purpose and causation tests is unnecessary². The 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.

20Likewise, analysis of whether the Applicant is entitled to the benefits claimed under the substantive issues is unnecessary because I determined that the Applicant was not involved in the subject accident.

CONCLUSION

21The Applicant witnessed an accident and/or the aftermath and developed psychological injuries thereafter. However, witnessing an accident and/or the immediate aftermath of one does not constitute being “involved” in the accident. Thus, the Applicant is not an “insured person” pursuant to section 3(1) of the Schedule. The Applicant is not permitted to make a “nervous shock” claim under his policy because he is not related to the persons involved in the accident.

22A determination of the substantive issues in dispute is unnecessary because the Applicant was not involved in the subject accident.

23The application is dismissed.

Footnotes

1. 12020 CanLII 45493 (ON LAT)
2. 2See 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).