Licence Appeal Tribunal File Number: 22-002265/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:
C. B., T.G.B. and B.G.B
Applicant(s)
and
Belair Direct Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant(s):
Gordon W. Harris, Counsel
For the Respondent:
Darrell March, Counsel
HEARD:
By way of written submissions
OVERVIEW
1This proceeding concerns a dispute between the spouse and children of the insured person (the applicants) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on April 24, 2019
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicants are entitled to make claims under the Schedule as the spouse and dependents of the accident victim, [JG] (“[Ms. G]”).
RESULT
3I find that the applicants are not entitled to make a claim under the Schedule.
BACKGROUND
4On Wednesday, April 24, 2019, [Ms. G] and her friend were on a walk when an impaired driver struck her friend. Unfortunately, her friend passed away. As a result, [Ms. G] was deemed as catastrophically impaired due to her psychological impairments. Her husband, daughter and son filed an application with the Tribunal.
5The applicants submit that as a result of [Ms. G]’s concurrent psychological and physical impairments, the applicants have suffered psychologically and/or mentally.
6The respondent submits that the applicants do not meet the definition of an insured person pursuant to section 3(1)(a)(ii), as [Ms. G] did not sustain a physical injury in the subject accident.
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 an accident involving the use or operation of an automobile.
8Under 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.
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 […].”
10In 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.
11The 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?
12The 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”.
13Given the above framework, my analysis considers the following: are the applicants “insured persons” as defined by s. 3(1) of the Schedule? If so, have they demonstrated on a balance of probabilities that they were involved in an automobile accident?
14For the following reasons, I find that the applicants are not insured persons and therefore cannot claim accident benefits as a result of this incident.
Iteration (a)(ii) – psychological injury and the familial connection
15The 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.
Did the applicants suffer a psychological or mental injury as a result of the accident as a result of a physical injury to [Ms. G]?
16I have reviewed all of the evidence and note that the applicants have provided a chart called “Medical Evidence Summary of the Applicants’ Psychological/Mental Injuries”. The chart refers to reports and records from Kaplan and Levitt Psychologists, Dr. Phillips, DMA Rehability and Therapy Connections Inc. None of these reports make any reference to the psychological or mental injury that the applicants have sustained. The diagnosis for the applicants is unclear. Nor is there any evidence that the applicants have been assessed by a medical practitioner and diagnosed with a psychological/mental injury.
17The applicants have not submitted their own medical records that support their position that they sustained a psychological or mental injury. The reports and records that they are relying on are mainly based on [Ms. G]’s self-reporting. While I appreciate the fact that the applicants are dealing with a rather difficult situation, the medical evidence does not support that they have suffered a psychological or mental injury.
[Ms. G] did not suffer a physical impairment as a result of the accident
18The applicants submit that [Ms. G] suffered physical and psychological injuries as a result of the accident. It is the applicants’ position that [Ms. G]’s accident-related physical injuries have been consistently documented throughout the medical evidence. The applicants have provided a chart called “Medical Evidence Summary of [JG]’s Physical Injuries” which consists of excerpts of reports and records from Kaplan and Levitt Psychologists, Price Health, Dr. Cressman, Dr. Phillips, DMA Rehability, Therapy Connections and Nutritional Rehabilitation.
19The respondent submits that the applicants do not meet the definition of an insured person pursuant to section 3(1)(a)(ii) of the Schedule as [Ms. G] did not sustain a physical injury in the subject accident. According to the respondent, the medical documentation does not detail any physical injuries that were sustained as a result of the accident.
20I have reviewed the records and note that [Ms. G] has not been diagnosed with a physical injury as a result of the accident. The applicant has not directed the Tribunal to an actual diagnosis of a physical injury as a result of the accident. The records and reports that the applicant is relying on are based on her self-reporting. Moreover, she has reported impairments to various practitioners. Impairments are defined by the Schedule as a loss or abnormality of a psychological, physiological or anatomical structure or function. In my view, a physical injury is different than an impairment. Moreover, the absence of the word “impairment” in section 3(1)(a)(ii) leads me to believe that the legislature did not intend it be included under the definition of an insured person. The legislature specifically included the word “physical injury”.
21I note that [Ms. G] reported to Dr. Melissa Parlar, Clinical and Rehabilitation Neuropsychologist and Dr. Brian Levitt, Clinical and Rehabilitation Psychologist that she recalled possibly twisting her knee during the accident as she quickly moved her body out of the way to change direction. She recalled inner right knee pain after the accident. However, I am not persuaded by this because it was reported two years after the accident and there is nothing that substantiates this in the medical records.
22I am more persuaded by the respondent’s evidence. The applicant was diagnosed with Acute Stress Disorder as a result of accident. The Emergency Records from [the hospital] do not make any references to a physical injury.
23At the insurer examinations with Kristine Roth, OT, on October 13, 2020 and Dr. Paul Derry, Psychologist, on February 15, 2022, [Ms. G] indicated that she was not physically injured as a result of the accident.
24She was seen by Dr. Nancy Abram, General Practitioner, on January 18, 2021 for an insurer examination. Dr. Abram opined that from a musculoskeletal standpoint, there was no current physical diagnosis related to the mechanism of the accident in question. Nor was there evidence of any physical impairment as a result of the accident. In her addendum report, Dr. Abram noted that any of [Ms. G]’s physical symptoms stem from her mental health condition and “she should focus on treatment of her mental health rather than seek treatment for her physical symptoms which is not indicated from a physical or mental health perspective.”
25On February 11, 2022, [Ms. G] was seen by Ms. Jackie Auger, for a CAT Determination Assessment. [Ms. G] reported to Ms. Auger that she was involved in a motor vehicle accident on April 24, 2019 and was diagnosed with post-traumatic stress disorder (“PTSD”), anxiety, depression and adjustment disorder. I note that she did not mention any diagnosis of a physical injury. Ms. Auger opined that [Ms. G]’s residual functional limitations were mainly of an emotional nature and impacted her tolerance for certain daily tasks. [Ms. G] demonstrated functional tolerances for independence with self care, housekeeping, home maintenance and leisure activities.
26On a balance of probabilities, I find that [Ms. G] did not sustain a physical injury as a result of the accident. As such, I find that the applicants are not insured persons.
COSTS
27The respondent is seeking costs. I find that the respondent has not met the test set out in Rule 19 Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended. In the absence of reasons and particulars, I am unable to award costs to them. In any event, I find the actions of the applicant is not sufficient to award costs. Rule 19.1 stipulates that behaviour that may attract costs must be unreasonable, frivolous, vexatious or in bad faith The test to find behaviour that is in bad faith, unreasonable, frivolous, vexatious is very high. There is no evidence that the applicants’ behaviour has met this threshold.
ORDER
28The application is dismissed.
Released: July 25, 2023
Tavlin Kaur
Adjudicator