Gray v. Intact Insurance, 2023 CanLII 133

Gray v. Intact Insurance, 2023 ONLAT 21-008634/AABS – PI

Licence Appeal Tribunal File Number: 21-008634/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:

Hailey Gray

Applicant

and

Intact Insurance

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Hailey Gray, Applicant

Sarah Kirshin-Neilans, Counsel

For the Respondent:

Madhu Kapur, Adjuster

Lori J. Sprott, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION [AND ORDER]

BACKGROUND

1The applicant claimed entitlement to accident benefits from Intact Insurance, (the “respondent”), arising out of an incident that occurred on August 14, 2019. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal-Automobile Accident Benefits Services (the “Tribunal”). The respondent raised a preliminary issue of whether 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”). This hearing will consider this question.

ISSUE IN DISPUTE

2The issue in dispute is whether the applicant was involved in an automobile accident on August 14, 2019.

RESULT

3I find that the applicant was not involved in an automobile accident on August 14, 2019. As such, she is not an “insured person” who may claim accident benefits under an automobile insurance policy.

BACKGROUND

4On August 14, 2019, the applicant was in her home when a vehicle struck a house a few doors down from hers. The applicant and her partner went to their neighbour’s house that was struck. They saw the vehicle inside of the house. The applicant and other witnesses were advised to go back “five houses” by police. A large natural gas explosion occurred at the impacted house. The applicant and her partner were a few houses down the road when the house that was struck by the vehicle exploded. The explosion and fire destroyed multiple homes. The applicant alleges that she sustained psychological impairments as a result of the incident.

5The respondent is of the view that the applicant was not involved in an automobile accident. The respondent submits that the natural gas explosion in relation to the applicant’s alleged psychological impairments does not satisfy the purpose test or the causation test. The psychological impairments stem from the natural gas explosion, not the automobile accident. The jurisprudence has established that a person who sees or hears an accident is not a person who is involved in an accident. Therefore, finding that the applicant was involved in an automobile accident would amount to an error of law in relation to the well-established purpose and causation tests.

6The applicant submits that she was involved in an automobile accident and is therefore entitled to statutory accident benefits as she sustained an impairment as a direct result of the accident. The applicant submits she was diagnosed with adjustment reaction as a direct result of the collision.

ANALYSIS

7The 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.

8Under 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.

9Section 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 […].”

10The Ontario Court of Appeal established a two-part test to determine whether an incident is an “accident” as follows:¹

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.

11The first stage or the 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?

12The 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.

13Given the above framework, my analysis considers the following: for the applicant to claim accident benefits as a result of the automobile accident, she must be an “insured person” as defined by s. 3(1) of the Schedule. In turn, to be an “insured person,” the applicant must demonstrate on a balance of probabilities that she was involved in an automobile accident.

14For the following reasons, I find that the applicant has not met her onus to establish that she was involved in an automobile accident. It follows that she is not an “insured person” and therefore may not claim accident benefits as a result of this incident.

15As noted above, the Schedule provides multiple ways for a person to be an “insured person.” To be clear, neither party asserted or refuted that the applicant was an “insured person” under iteration (b) or (c) of the definition. Iteration (b) requires the involvement of the insured person’s automobile, which is not the case here because the car in question was not insured by the applicant’s policy.

Further, iteration (c) requires that the applicant be an occupant of the insured vehicle, i.e., the car, which she was not. Therefore, I find that the applicant cannot be found to be an “insured person” under iterations (b) or (c) of the definition as they are not applicable in this case.

Iteration (a)(ii) – psychological injury and the familial connection

16The applicant submits that the definition of insured person does not preclude an insured person who is “involved” in an accident from claiming benefits arising from non-physical injuries. The Schedule defines an “impairment” as “a loss or abnormality of a psychological, physiological or anatomical structure of function.” She says that the adjustment reaction suffered by the applicant as a direct result of her involvement in the accident falls squarely within the definition of “impairment.”

17The respondent submits that the applicant was not involved in an automobile accident. In support of its position, the respondent is relying on Amiri and Mireskandari v. Co-operators, 2021 CanLII 90414 (ON LAT) (‘Amiri’); Boyle v. Travelers Canada, 2020 CanLII 103481 (ON LAT) (‘Boyle’); and Bustin v. Economical Insurance Company, 2022 CanLII 87718 (ON LAT) (‘Bustin’).

18In Boyle, the applicant observed a motor vehicle striking a pedestrian. The applicant tried to rescue the pedestrian, who later died in the hospital. The applicant sought accident benefits for post-traumatic stress disorder as a result of the accident. The Tribunal found that although the applicant may have heard or seen the accident take place, there is no suggestion that this caused his psychological impairment. Further, the applicant was not found to be involved in an accident.

19In Amiri, the applicants witnessed the accident and its aftermath. They claimed accident benefits for their psychological injuries. They were not found to be in an accident. In Bustin, the applicant witnessed an accident and developed psychological injuries thereafter. The Tribunal 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.

20The Schedule addresses psychological injuries in the (a)(ii) iteration of “insured person” definition. That iteration 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.

21This has been addressed in Amiri and Boyle, where the adjudicator noted that these types of claims are limited to accidents involving family members. In this case, the applicant is not permitted to make a psychological claim under her policy because she is not related to anyone involved in the accident. She would need to be related to a person involved in the accident in order to qualify as an insured person under this category.

22The applicant has not submitted any evidence of such familial relationship and therefore I find that none exists. It follows that the (a)(ii) iteration is not available to the applicant. Accordingly, the iteration left available to the applicant is the (a)(i) iteration of “insured person,” which I turn to next.

Iteration (a)(i) – named insured involved in an accident involving an insured automobile or another automobile

23In the (a)(i) iteration, the applicant must demonstrate that she is the named insured on the policy which she claims under and that she was involved in the accident that involves the insured automobile or another automobile. There is no dispute that she is the named insured on her policy, nor is there any dispute that there was “another automobile” involved in the accident (as the Ford Fusion is not an automobile insured under her policy). I find that she satisfies those two components of the (a)(i) iteration; however, the turning point is whether she was involved in an automobile accident.

24The applicant submits that she was a specified driver and was “involved” in an accident that involved another vehicle and is therefore entitled to accident benefits as she falls within criteria (a)(i) of the definition. The applicant was “involved” in an accident because she was not merely a witness; her traumatic reaction to the event stemmed from her being in actual danger of physical harm. She claims that unlike the applicants in Bustin, Amiri and Boyle, her impairment was not as a result of seeing someone else hurt, it was due to her own “involvement” in the accident. The accident also destroyed her home and possessions, including her vehicle.

25The respondent submits that a person who sees or hears an accident is not a person who is involved in the accident.

26On the facts before me, the applicant did not even witness the automobile accident. The applicant’s evidence was:

Around 10pm, we were getting ready for bed. I was watching tv and went to bed at 10:15pm. Eric was already in bed. I then heard something that sounded like an impact. I got up and woke Eric up. The top of the house is a loft. I went to look out the bathroom window and I saw our neighbor outside in his underwear. Then I knew something bad happened. I threw on some clothes. We went outside and there was a vehicle inside our neighbour’s house. The vehicle drove into our neighbour’s home, the address of their home is [redacted address]. The air bags were deployed, and she was not conscious. We could smell natural gas and the car was still running. It seemed very bad. Our neighbor smashed the window with a brick. The driver was intoxicated. The police showed up, but we were trying to get access into her car, as we thought the car might light on fire. The police told us to get back and in the meantime, the fire department came. Their gas meter started to go off. They asked us to go back five houses.

27The applicant also confirmed that she was not physically injured as a result of the automobile accident. I recognize that this incident was an unexpected and traumatizing experience for the applicant. However, the applicant did not see the automobile accident take place. She only witnessed the immediate aftermath. Her statement supports the fact that she was not directly “involved” in the automobile accident.

28The jurisprudence has established that the respondent should not be responsible for any impairments that arise out of the aftermath of an accident that has already occurred. The automobile was no longer in use and operation by the time the applicant’s impairments were established. Therefore, she cannot be found to have been in an automobile accident. Therefore, I find that she does not meet the remaining (a)(i) iteration of “insured person” as defined under the Schedule that would entitle her to benefits.

29Moreover, aside from the Disability Certificate (‘OCF-3’) dated October 3, 2019 that documents the condition of adjustment reaction, there is nothing else in the evidence such as clinical notes and records or referrals to a psychiatrist that would substantiate the applicant’s position that she sustained an impairment as a direct result of the accident. In fact, the applicant was not prescribed any medication and nor has she seen any other health professionals for her issues as per the statement that she provided.

30The purpose and causation tests are used to determine whether an incident involving an insured person is an “automobile accident”. The tests are unnecessary in this case because I have found that the applicant was not involved in the automobile accident.³

CONCLUSION AND ORDER

31The applicant was not an insured person involved in an automobile accident on August 14, 2019. She is not entitled to accident benefits.

32The application is dismissed.

Released: January 5, 2023

___________________________

Tavlin Kaur

Adjudicator

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;