Mahdiehsadat Jazayeri v. Economical Insurance Company, 2024 CanLII 30722

Licence Appeal Tribunal File Number: 23-007687/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:

Mahdiehsadat Jazayeri

Applicant

and

Economical Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Kaitlyn MacDonell, Counsel

For the Respondent:

Pina Carusone, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant’s boyfriend (“the deceased”) was struck and killed by a motor vehicle on July 19, 2021. The applicant sought benefits 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, Economical Insurance Company (“Economical”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES IN DISPUTE

2The preliminary issues to be determined are:

a. Is the applicant an “insured person” as defined in section 3(1) of the Schedule?

b. Was the applicant involved in an accident as defined in section 3(1) of the Schedule?

RESULT

3I find that the applicant was not “involved in” the accident on July 19, 2021. Thus, she is not eligible to claim benefits under an automobile insurance policy.

ANALYSIS

The applicant’s initial submissions, at paragraphs 9, 28, and 29 (including TAB 6), will not be struck from the record

4The respondent in its reply submissions raised an objection to paragraphs 9, 28, and 29, and Tab 6 of the applicant’s initial submissions and document brief. Economical alleges that these submissions/evidence should be struck as the applicant failed to comply with the production deadline for this hearing.

5I find that the applicant provided the Occupational Therapy In-Home Assessment Report (“In-Home Assessment Report”) to the respondent’s counsel on January 18, 2024, which was prior to the case conference. As such, I decline to strike paragraphs 9, 28, and 29 of the applicant’s initials submissions and Tab 6 will be considered by me, as the applicant produced these documents before the deadline set out in the Case Conference Report and Order (“CCRO”).

6Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal.

7The CCRO, dated January 31, 2024, ordered that the parties exchange all documents that have not been previously exchanged no later than seven calendar days following the case conference.

8In her sur-reply, the applicant submits that she provided the In-Home Assessment Report on January 18, 2024, with her case conference brief. Therefore, she was compliant with the CCRO, as this document had already been produced to Economical’s counsel. To support this, the applicant produced an Tracument Service Report.

9The applicant was compliant with the CCRO, as the In-Home Assessment Report was produced already on January 18, 2024, and did not need to be produced again. The CCRO was clear that the document exchange deadline was only for documents not previously exchanged, which is not the case here. The applicant has produced the Tracument Service Report which demonstrates that the documents were delivered to the respondent’s representative on January 18, 2024, and downloaded on the same day. To summarize, the applicant was compliant with the CCRO, as the In-Home Assessment Report had already been produced on January 18, 2024, as such, I decline to strike paragraphs 9, 28, and 29 and Tab 6 from the record.

Analysis

The issue of whether the applicant is an Insured Person is immaterial, as the applicant was not “involved in” an accident

10I take note that both parties made extensive submissions on whether the applicant was an insured person under s. 3(1)(a) or a deemed named insured under s. 3(7)(f)(i). However, this issue is immaterial, as I have determined that the applicant was not “involved in” an accident, which I will now turn to.

11For a person “not involved” in an accident to be eligible to claim accident benefits, they would need to fall into one of the categories set out in paragraph (ii) under the definition of an “insured person” in s. 3(1) of the Schedule. As I will discuss, the applicant also does not meet these criteria and her claim for benefits cannot proceed.

The applicant was not “involved in” an accident

12I find that the applicant was not “involved in” an accident, therefore she is not eligible to claim benefits under an automobile insurance policy.

13The Schedule provides that insurers are liable to pay certain benefits to, or on behalf of, an insured person who sustains an impairment as a result of an accident involving the use or operation of an automobile.

14Under section 3(1), 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.

15The applicant concedes in her submissions that she is not a spouse of the deceased and therefore is not claiming entitlement to benefits under s. 3(1)(a)(ii). Instead, she argues that she was “involved in” an accident, and therefore is entitled to benefits under either s. 3(1)(a)(i) or s. 3(1)(b). The applicant argues that she was “involved in” an accident based on the following three factors. First, she witnessed the deceased get run over, second, she was fearful that she would be struck by the vehicle as well, and third, she sustained psychological injuries as a result. To support her position, she relies on the authorities of: Downer v. The Personal Insurance Company, 2012 ONCA 302 (“Downer”), and P.H. (“P.H.”) v. Aviva Insurance Company of Canada, 2020 CanLII 45493 (ON LAT).

16In response, the respondent submits that the applicant was not “involved in” an accident, as she was not struck by the vehicle involved in the incident, nor was she an occupant of the vehicle, or physically injured by the vehicle. As a result, it submits that an authority with a similar fact matrix, has established that proximity to an accident is insufficient (see: Amiri and Mireskandari v. The Co-operators- (“Amiri”) 20-003296/AABS & 20-003319/AABS, 2021 CanLII 45657 (ON LAT).

17The crux of the dispute before me is whether witnessing an accident, and believing you may be hit, meets the definition of being “involved in” under either ss. 3(1)(a)(i) or s. 3(1)(b), I find that it does not.

18First, I find that witnessing an event is not the same as being involved in an event and concur with Adjudicator Noris that proximity to an accident alone is insufficient. While I am not bound by Amiri, I am persuaded by Adjudicator Norris’s reasoning in this authority and agree the fact scenario is similar to the matter before me.

19In Amiri 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 applicants’ 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.

20Here, the applicant was not struck by the vehicle involved in the accident, nor was she an occupant of the vehicle at any time during the incident. I acknowledge that the applicant submits that she believes she may have been hit, however, she was not. Instead, she witnessed the accident and/or the immediate aftermath. In my view, having a belief that you may be hit, does not meet the definition of being “involved in”, as physical contact is required. Therefore, I find that she was not “involved in” an accident, as she was not physically hit with the vehicle, and was a witness of the event.

21Second, I agree with Adjudicator Norris in Amiri, that the Schedule contemplates nervous shock claims, but these claims are limited to either individuals involved in an accident or have certain familial relationships with the policy holder. While I further acknowledge that this was likely a very traumatic event for the applicant, and she claims that she has psychological impairments, However, as noted above, the applicant has conceded in her own submissions that she is not a spouse of the deceased, thus she would not qualify for benefits under s. 3(1)(a)(ii). As the applicant was neither “involved in” an accident, or the spouse of the deceased, she is not entitled to claim benefits under the Schedule.

22Finally, the authorities cited by the applicant are vastly different than the fact pattern before me and as such do not assist me in determining whether the applicant was “involved in” an accident.

23For instance, in Downer, the issue before the Court of Appeal was whether the applicant was involved in an “accident”. There was no issue of whether the applicant met the definition of being “involved in”, but rather the Court of Appeal addressed whether the definition of being in an accident was met. As such, I am not persuaded by the applicant’s position that her belief that she may be run over by a vehicle is similar to Downer, and means she was “involved in” an accident. In any event, in Downer, the Plaintiff was an occupant inside a vehicle, when he thought he ran over one of his assailants, which in my view, is not the same as a witness believing they may be hit with a vehicle.

24Similarly, I am not persuaded by the authority of P.H. as cited by the applicant, as once again, the issue before the Tribunal was whether the incident met the definition of an “accident”. The Tribunal was not asked to consider whether the applicant was “involved in” an accident in accordance with ss. 3(1)(a)(i) or 3(1)(b). Instead, P.H. dealt with physical injuries resulting from the chain of events directly stemming from an accident. Meanwhile, in the matter before me the applicant sustained psychological injuries from witnessing the accident and its aftermath.

25In conclusion, I find that the applicant was not “involved in” an accident, and thus is not entitled to claim benefits under the Schedule.

26Considering, that the applicant was not “involved in” the accident, an analysis of whether the accident meets the purpose and causation tests is unnecessary. 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” an accident.

CONCLUSION AND ORDER

27I find that the applicant was not “involved in” the accident on July 19, 2021. Thus, she is not eligible to claim benefits under an automobile insurance policy. The application is dismissed.