Gayle v. TD General Insurance Company, 2023 CanLII 50602

Citation: Gayle v. TD General Insurance Company, 2023 ONLAT 22-005088/AABS - PI

Licence Appeal Tribunal File Number: 22-005088/AAB

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:

Valrie Gilbert Gayle

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Valrie Gilbert Gayle, Applicant

Mariya Verkhovets, Counsel

For the Respondent:

Annette Uetrecht-Bain, Counsel

HEARD:

By way of written submissions

OVERVIEW

1On December 8, 2020, the applicant’s husband was involved in an automobile accident. The applicant, Valrie Gilbert Gayle, sought benefits for herself pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The applicant was denied certain benefits by the respondent, TD General Insurance Company (“TD”), 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 an insured person involved in the “accident” as it is defined in the Schedule. This hearing will consider this question.

PRELIMINARY ISSUE IN DISPUTE

2The issue in dispute is whether the applicant is an insured person under section 3(1) of the Schedule and therefore eligible for benefits.

RESULT

3I find that the applicant does not meet the definition of an “insured person”.

BACKGROUND

4On December 8, 2020, the applicant’s husband was allegedly struck by a vehicle that is insured by the respondent. The applicant subsequently applied for accident benefits claiming that she suffers from psychological injuries as a result of her husband’s involvement in the accident. The applicant and her husband are not insured. The claim for benefits was made pursuant to the policy of the insured driver who allegedly struck her husband. On April 18, 2022, the respondent denied her claim for accident benefits on the basis that she is not an insured person pursuant to section 3(1) of the Schedule.

5The respondent is of the view that the applicant was not involved in an automobile accident. It is the respondent’s position that an individual who is not involved in an accident, but suffers a psychological or mental injury as a result of an accident in or outside of Ontario that results in a physical injury to his or her spouse, is only covered by the Schedule if they are the named insured, specified driver, spouse or dependant of the named insured(see 3(1)(a)(ii)). In this case, the applicant is not the named insured, specified driver, spouse or dependant of the named insured on the insurance policy, and is not covered for accident benefits under the policy. Thus, the applicant is not an insured person under section.

6In 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’).

7The applicant submits that while she agrees that she is not a named insured or specified driver in the particular policy, on the plain reading of the section, she is the spouse of a catastrophically impaired person who has been specified by the respondent as an insured person under the policy issued by the respondent. Furthermore, to deprive any spouse or an immediate family member of an insured person who falls under s.3(1)(b) of the Schedule would essentially mean that the spirit of the law was such as to exclude a whole class of citizens, most of whom are less privileged and unable to afford treatment.

8The applicant appears to be alleging that the Schedule is discriminatory. However, if she intended to raise a question about the constitutional validity or applicability of a matter before the Tribunal, or to claim a remedy under subsection 25 (1) of the Canadian Charter of Rights and Freedoms, she would have had to file a notice of a constitutional question. She did not do so.

ANALYSIS

9The 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 an accident involving the use or operation of an automobile.

10Under s. 3(1) of the, 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.

11Section 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 […].”

12In Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226, the Ontario Court of Appeal confirmed the two-part test to determine whether an incident is an “accident” as follows:

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.

13The purpose test is a determination of whether the incident resulted from “the ordinary and well-known activities to which automobiles are put.” See: Greenhalgh v. ING Halifax Insurance Company, (2004), 2004 CanLII 21045 (ONCA). Put another way, for what “purpose” was the vehicle being used at the time of the incident?

14The causation test then requires the adjudicator to determine if these “ordinary and well-known activities” were the direct cause of the applicant’s impairments by focusing on the following considerations:

• The “but for” consideration can act as a useful screen to eliminate irrelevant causes;

• The “intervening act” consideration may be used to determine if some other event took place that cannot be said to be part of the ordinary course of use or operation of the vehicle; and,

• Finally, when faced with a number of possible causes, the “dominant feature” consideration focuses on whether the ordinary and well-known activity is what “most directly caused the injury”.

15Given the above framework, my analysis consider the following: is the applicant an “insured person” as defined by s. 3(1) of the Schedule? If so, has she demonstrated on a balance of probabilities that she was involved in an automobile accident?

16For the following reasons, I find that the applicant is not an “insured person” and therefore she may not claim accident benefits as a result of this incident.

Is the applicant an insured person?

17The applicant submits that the Tribunal must decide whether the interpretation of an “insured person” is understood to be the same as a “named insured” for the purposes of accident benefits coverage given that the Schedule and Insurance Act are silent on the definition of a “named insured”. In my view, the definition of an “insured person” under section 3(1) is quite clear. An insured person with respect to a particular motor vehicle liability policy is the named insured. I find the plain reading of the words “named insured” refer to the individual whose name is on the insurance policy.

18It appears that the applicant is arguing that individuals that do not have their own insurance policy should also be included in this definition. It is a basic principle of statutory interpretation that every word that is found in a statute has been included there for a reason, and is intended to have a purpose. Had the legislature intended to include this group within the definition of an insured person, then it would have been reflected in the legislation. The legislature specifically narrowed the definition of an insured person. This must be taken as intentional. While I recognize that the applicant has been put in a difficult situation, I must respect the legislature’s intent.

19I find that the applicant would not qualify as an insured person under subsections 1(a), and (c) of section 3 for the following reasons. Although the applicant alleges that her husband is a named insured, I find that he is not the named insured because he is not listed on the insurance policy. Nor is the applicant named on the policy. There is no evidence that she was related to the driver nor was she an occupant of the insured vehicle. Moreover, the accident occurred in Ontario. Therefore, she would not meet the criteria in subsections 1(a)(i) or (c) of Section 3.

20Although the applicant claims that she sustained psychological injuries as a result of her husband’s accident, I find that she would not qualify under subsection 1(a)(ii) because her husband is not a named insured. I find Adjudicator Norris’ reasoning in his reconsideration decision in Amiri and Mireskandari v. The Co-operators, 2021 ONLAT 20-003296/AABS to be quite instructive on this point. In paragraph 16, he states that, “The purpose of definition (a)(ii) of “insured person” is to address, and limit, claims like those made by the Applicants to the named insured, a specified driver, or family members of the named insured. [my emphasis added].”

21Therefore, the analysis then shifts to whether she would qualify as an insured person pursuant to section 3(1)(b) which states that a person who is involved in an accident involving the insured automobile is also an insured person.

Was the applicant involved in an accident involving the insured automobile?

The Purpose Test

22I find that the applicant has not met the purpose test because her injuries did not arise out of the ordinary and well-known activities for which automobiles are put pursuant to section 3(1). The incident which caused her injuries did not arise from the use or operation of an automobile. Rather, it arose from the fact that she had to care for her husband.

The Causation Test

23I find that the applicant would not have sustained her injuries “but for” her husband being injured in the accident. However, the “but for” test does not conclusively establish legal causation, which is the key in whether there is legal liability. As Laskin J.A. noted in Chisholm v. Liberty Mutual Group, 2002 CanLII 45020 (ON CA) (“Chisholm”) the purpose of the “but for” test of causation is an exclusionary test which serves to “eliminate from consideration factually irrelevant causes. It screens out factors that made no difference to the outcome […] the but for test does not conclusively establish legal causation.”

24Since the “but for” test does not conclusively establish causation, I now turn my analysis to whether there was an intervening act that broke the chain of causation.

Was there an intervening act?

25The applicant submits that there was no intervening act that would break the chain of causation. The respondent did not provide submissions on this point.

26In my view, the applicant’s psychological injuries resulted from her having to take care of her injured husband, not from the accident. Her impairments stem from completely different circumstances. Therefore, the intervening act is the condition of her husband that caused her injuries, and not the accident.

Was the use or operation of the automobile a dominant feature of the applicant’s injuries?

27As described in Greenhalgh, the “dominant feature” consideration requires an adjudicator to determine what element of an incident is “the aspect of the situation that most directly caused the injuries.” For instance, in Greenhalgh, the incident involved the insured person suffering from severe frostbite after getting her vehicle stuck on a country road. In dismissing the claim of an “accident” Justice Labrosse found, that “the ‘dominant feature’ of the insured’s injuries could be best characterized as exposure with the elements, and that the use of the motor vehicle was ancillary to that injury.”

28The applicant is of the view that the accident is the dominant feature of her psychological injuries. The respondent failed to provide submissions on this point. I find that the use or operation of an automobile was not a “dominant feature” of her injuries. In fact, the automobile played a role that was secondary or peripheral to her injuries.

29The evidence that this decision turns on, is compelling when considering the factors laid out in Greenhalgh:

a) The applicant did not have any physical contact with the vehicle that injured her husband.

b) There was no automobile present when the applicant was providing care for her husband.

c) The vehicle was not in use or operation when the applicant suffered the impairments that stemmed from providing care for her husband.

30The applicant’s involvement in the accident was limited to her proximity and relationship with her husband who was struck by the vehicle. Moreover, she is further removed from the accident because not only was she not involved in the accident, she also did not witness the accident like the applicants in Bustin, Boyle and Amiri. As such, the factors that caused her impairments are too far removed from the automobile accident to arrive at a conclusion that she was directly involved in an accident involving the insured automobile.

31Therefore, I find the applicant is not entitled to claim accident benefits as an insured person under s.3(1)(b).

CONCLUSION AND ORDER

32The applicant is not an insured person involved in an automobile accident on December 8, 2020. She is not entitled to accident benefits.

33The application is dismissed.

Released: June 12, 2023

___________________________

Tavlin Kaur

Adjudicator